Orders of the Day

Hon. L. Beare: In this room, I call Committee of the Whole, Bill 17, Miscellaneous Statutes Amendment Act.

In the Douglas Fir Room, I call continued estimates of the Ministry of Environment and Climate Change Strategy.

Committee of the Whole House

BILL 17 — MISCELLANEOUS STATUTES
AMENDMENT ACT, 2022

(continued)

The House in Committee of the Whole (Section B) on Bill 17; J. Tegart in the chair.

The committee met at 1:04 p.m.

On clause 1 (continued).

M. de Jong: We were, as part of the discussion on clause 1, talking about (2.1), (2.2) and (2.3). I think I understood the Attorney’s last explanation for what the intention was.

[1:05 p.m.]

If we go to (2.3), what I think I heard the Attorney say is…. What’s contemplated here is the possibility that on a transitional basis, in any one of the categories that exist here, the option of filing a dispute electronically might not exist, that the powers or the exemptions contemplated in (2.1) and (2.2) would be enacted upon. I shouldn’t use the word “enactment,” because that is actually the first category.

Does that mean that at some point, there is the possibility of a regulation that says any violation tickets issued under the following statute…? I’m using that term to substitute for “enactment.” I suppose enactment would include a statute or a regulation under a statute. Any violation ticket for which the person receiving that ticket might otherwise file an electronic notice of dispute would not have that option, would have to rely on the other two options of either submitting a dispute notice by mail or appearing at a particular location.

If that is correct, are there any specific enactments that the Attorney or the staff assisting the Attorney have in mind today for which the exception might apply?

Hon. D. Eby: I’m advised by staff that motor vehicle tickets are the most ready and the most amenable to this online structure and electronic filing structure. Certainly, some of the contemplation is that perhaps there may be an approach where only motor vehicle tickets are done through this electronic system first, because they are the furthest along, but that hasn’t been decided yet. It depends very much on the design of the online system and the implementation of the same, but that is in contemplation as a potential first step of implementing this legislation.

M. de Jong: If that is so, should we be anticipating…? At the time the act is brought into force, do we need to, then, anticipate a whole set of regulations that says…? Well, the act says the recipient of a violation ticket can file a dispute electronically. That becomes the starting point, following the passage and enactment of the bill. Then should we anticipate a whole series of regulations that say, “except in the following cases, except for classes of violation tickets in all of these categories”?

Much of the public discussion, to the extent that there has been, has been around highway traffic violations, but in a moment, I’m going to ask the Attorney about some other areas where violation tickets are issued.

[1:10 p.m.]

Are we necessarily, then, going to see a whole series of regulations that touch upon violation tickets, as classified here, where that option of filing electronically a notice of dispute doesn’t exist?

Hon. D. Eby: The intent of this regulation-making power, the intent of the legislation, is the electronic filing of notice of dispute. For many people, it will be the default. It will be the main option available, the easiest, widely available option for filing your dispute.

This is provincial government, so there is a wide array of potential tickets that people can receive, under various acts. What we’re trying to anticipate here, through these regulation-making powers, is that there might be a category of offences for which — like a square peg trying to go into a round hole — it’s just not working, for one reason or another. We need to be able to pull those out so that the whole system doesn’t get held up for the slowest actor.

The difference between what I’m saying and what the member has said is that — rather than the default being that you can only electronically file in this very small area — our anticipation is that the electronic filing will be widely available but that there may be some discrete areas where we have to play catch-up or we have to address some issues that are delaying implementation. That’s why it’s there.

At a minimum, we believe that motor vehicle tickets, first of all, are the predominant ticket that is issued by the provincial government, under various authorities. So they’re the majority of the tickets. There’s already the ability to appear electronically, with leave of the court, for motor vehicle tickets, and they already have the e-ticketing system in place. They’re the most ready for this. So out of the gate, the majority of tickets issued in the province will be ready for this process, once we roll out the online system.

M. de Jong: I can assure the Attorney that my intention today is not to be needlessly quarrelsome on matters. I understand what the intention is, but my concern or my question is this. There will be a day when this law takes effect to accomplish the objectives that the Attorney has set out for the committee. It strikes me that on that day, by virtue of how the statute is worded, the government and the ministry will need to know, and have set in place, regulations that exempt or preclude the ability to file a dispute notice electronically.

I mean, in a moment, I’m going to, in a different context, ask about everything from the Wildfire Act to the Environmental Assessment Act, the Environmental Management Act, the Forest and Range Practices Act. There’s this whole body of law that exists and for which violation tickets may be issued.

[1:15 p.m.]

It strikes me that if the government isn’t set up to accept notices of dispute electronically at the time this act comes into effect, those regulations will need to be in place then, as opposed to at some point in the future — where, as the Attorney General says, the government, the state, isn’t equipped to accept those.

We will have to know that in advance, not as we go, because the act is written in a way that says that for all of those violation tickets, when they are issued, the person has the ability to file a dispute electronically. If I am correct — and if I’m not, the Attorney will tell me so — then, presumably, there is some awareness today of those statutory provisions that will require a regulation, pursuant to the new (2.3), that says that for a period of time, or a non-defined period of time, electronic dispute notices will not be available.

Hon. D. Eby: The member points out a very important chicken-and-egg problem. When we pass the legislation, the right is created, yet I’m telling the member that there may be categories that aren’t ready for electronic dispute notices to be filed. What we have in the legislation is that it is brought into force by regulation, which allows us to pass the legislation in this place while continuing the work on the systems, so that when it’s brought into force, we have all those regulations in place in any categories that need to be exempted from this right to file electronically.

I think, though, that I hear underneath the member’s question: “Where are you guys at on this? When is this going to be implemented?” I can provide the member with a bit of information on that. We’re advised by Citizens’ Services that the system is almost built, that they are engaged in testing, starting next week.

It has been built with…. The structure of it is around Motor Vehicle Act tickets, but we think there is a possibility of having a wide array of tickets on launch. That still won’t be clear until we start working with the system and with the relevant stakeholders. Obviously, the court has a role to play here, in terms of the judiciary, the Provincial Court, being ready for this process. There are a number of moving parts, and we want it to be successful. That’s where we are in the real world, as well as in the legislative world.

Hopefully, when this is passed, when we bring it into force by regulation, we’ll have a couple of things in place. One is the online system. The other is clear knowledge of which tickets and which processes are most amenable to this, that the judiciary is ready and that the ticket forms themselves — which have to be updated to include the information about electronic filing of dispute notices through regulation — all of that is in place.

That is when we bring the legislation into force, and British Columbians will be able to enjoy this right to file their disputes electronically.

[1:20 p.m.]

M. de Jong: I guess the obvious question, then, is: what is that target date for when the first tranche of violation tickets…? The Attorney has, I think, candidly said where the bulk of the work has been focused as it relates to highway traffic offences. But what is the target date for when the option for enactment and the option of filing, electronically, dispute notices will be available?

Hon. D. Eby: Obviously, any time that a member of the government stands up to talk about an online, computer-based system and when it will be available for the public is a perilous moment.

The goal is that we will have the system in place for British Columbians by the end of the year. There are aspects of this that are beyond our control in terms of the independent judiciary and the adoption of processes by the Provincial Court. We’ll be working with them to make sure that that goes smoothly and that we’re able to hit our dates.

I’m sure I’ll hear about it in question period if I’m wrong at some point, but currently the goal is, by the end of the year, to have this in place for British Columbians.

M. de Jong: The adoption of this system and this dispute filing option — did it involve, or does it involve, any specific additional software procurement?

Hon. D. Eby: I don’t have that information with us in terms of procurement. That work happens through Citizens’ Services. But what I can advise the member is that I’ll endeavour to get that information for him and also encourage him to raise it in Citizens’ Services estimates. But even if he doesn’t, our team will reach out and give him the information about how that’s being procured.

Some of the information is that we believe the online appearances are likely to take place through the Teams platform, which the Provincial Court is already using. There will need to be some kind of update to the software in police vehicles in order to be consistent with the changes. Beyond that would be just speculation. I’ll do my best to provide that information to the member.

M. de Jong: The reason I ask won’t surprise the Attorney. It is a phenomenon that has plagued governments — this government and previous governments. That is the uncertainty associated with turning good ideas into working, functioning processes where technology is involved.

Is the cost associated with the technology upgrade that this involves fully contained within the Attorney’s budget, or does it draw on funds from other ministries? Is it from within the court services branch?

It strikes me…. We’ve just had a brief discussion about the practical challenges associated with creating a new system and a new option for British Columbians. I take it the number of violation tickets involved here is measured in at least the ten of thousands, if not more. I guess this is the appropriate time to at least pose that question related to the cost and where that money is coming from.

I’ve asked about a specific procurement, and the Attorney has said that if there is one, he’s not aware of the details. But I presume he’s aware of whatever additional costs are involved in creating the structure for this.

[1:25 p.m.]

Hon. D. Eby: The cost is a capital cost through my ministry, and it does run through the Digital Investment Board at Citizens’ Services.

M. de Jong: I think one last question on (2.3). I, through our exchange, have an appreciation of what’s being attempted here. Sub (g) speaks to hearing locations. I presume what is contemplated, though, is an electronic dispute filing system that is centralized as opposed to operated by individual courthouses or individual ministries.

In what circumstances can the Attorney…? Or with the assistance of his staff, in what circumstances would there need to be a regulation that says: “Any dispute that would lead to a hearing at this location cannot be filed electronically”? That’s what sub (g) is designed to create. In what possible circumstance would that be required?

Hon. D. Eby: The electronic filing of the dispute is just one piece that links into a back end that’s enabled by other statutes, regulations and policies that include things like scheduling of court staff, scheduling of police witnesses and court systems. So there is a possibility….

There are about 80 or 90 locations across the province where there are hearings held but there is no registry. They have varying levels of access to online systems. So it is possible that we may have some of these locations which are unable to deal with the online dispute filing and the linkages into those systems or we may have a problem with the scheduling system in a particular registry. That is what this section is meant to be able to address.

M. de Jong: Okay, well, sorry. What I had thought was being created here was a mechanism by which electronically…. Whether it was under the highway traffic provisions or any of the other myriad of provincial statutes that give rise to the issuance of violation tickets, that the recipient of a violation ticket would — once the forms have been properly adjusted following the passage of this legislation, there would be an electronic address to which the person would submit their notice of intention to dispute.

I understand that a whole bunch of stuff happens after that. In the same way that today, I think, when you mail a dispute notice for a highway traffic speeding ticket, it goes to a centralized…. It’s been a long time for me, you see. I haven’t had one of those in a long, long time.

[1:30 p.m.]

But it goes to a…. It used to, at least, go to a central mail, and then it was dealt with from there. Then I understand all of the other challenges associated with scheduling, but those are sort of internal challenges for the government, the ministry, the court services branch and other ministries to figure out.

I thought that what we were trying to create here was a system by which the recipient of the violation ticket notified the Crown, as it were, electronically. I take issue; I dispute that — and now a whole bunch of other stuff needs to happen that, I agree, can sometimes be challenging. I’m not sure I still understand — wherever in the province I am and I got my dispute ticket — why there would be a problem, once all the systems are up and running, for me to notify the Crown, electronically, that I dispute that. I guess I’m not convinced with the answer I just heard.

Hon. D. Eby: I’m trying to think of a suitable analogy, but I’ll try without. We’re at such a stage of the development of this system yet that we don’t know what we don’t know yet about implementation with different kinds of tickets, how it maps into the internal systems within the courts and what will be available.

If we didn’t have this provision, we wouldn’t be able to hold back key pieces to respond to, like, “Wow, this is just not working, for some reason, to communicate with judiciary at our hearing location in Fort St. John” or wherever. Or for some reason, there is an extra digit in the conservation ticket number, and there are 16 slots in the form and it has 17 digits in it. You know, these things happen despite the best planning and effort. I like to think that under our government they would never happen, but they do happen. They are the realities of these kinds of projects.

These provisions — I’m very tempted to use an analogy; it won’t be a good one — just allow us to respond to that to keep the project on track so that the majority of British Columbians are able to use electronic dispute filing and appearances. We don’t have to hold back for the slowest or the broken piece. We have time to fix that and address that by pulling that piece out and allowing the other ones to go ahead.

M. de Jong: Clause 1(d) makes what is I think on the surface a fairly innocuous amendment to subsection 15(3): the replacement of the term “address” with “mailing address.” The Attorney, earlier this morning, referred in part, I think, or in passing to why that may or may not be necessary. It might strike one person as odd, however — in a circumstance where we are making a shift in creating an electronic option — that the change to the provision which presently simply requires “an address” now requires “a mailing address.”

[1:35 p.m.]

For the purpose of time, I will simply say that in some of the acts for which violation tickets are issued, it’s not difficult to contemplate circumstances in which a person might not have a mailing address. They may be located somewhere out on the land base in the context of resource-related matters and land base–related matters. So a general question about the change. Secondly, does that create a challenge for someone who receives a violation ticket and doesn’t have a mailing address?

Hon. D. Eby: Subsection (3) appears to have a change. It used to say: “A notice of dispute under this section must contain an address….” The proposed change, as the member notes, is: “…must contain a mailing address for the person disputing the allegation….” Although it appears to be a change, the way the courts have interpreted “an address” is as a mailing address, where the court can send materials to the individual who is disputing the ticket. So it’s not actually a change; it is a change in the wording to reflect judicial interpretation and implementation in terms of the registry.

If you want to dispute, you have to provide a mailing address where you can receive materials from the court in the event that they’re not able to reach you through the email address which, under subsection (3.3), you may provide. It’s not obligated for you to provide an email address. You may provide it, but you must provide a mailing address so that the court can be satisfied, when they send you something related to the hearing, that that is the address you’ve designated to be receiving those materials.

The email address fulfils the goal we have here of electronic processing and these kinds of things. I hope people do take us up on providing that email address and dealing electronically.

M. de Jong: I don’t want to belabour this one. The Attorney, then, is satisfied — he’s pointed out that the present term “address” has been judicially interpreted as representing, today, a mailing address — the argument won’t be made, or won’t be made successfully, that an email address qualifies as a mailing address.

I think I understand what the objective might be: to have a physical place to which documents could be sent if necessary. But I suppose cleverer lawyers than I might make the argument that, worded as it is, where the state has been deemed to accept an emailed notice of dispute, that is an email address and qualifies under the new wording of the section.

Hon. D. Eby: Under the principles of statutory interpretation, the statute needs to be read as an integrated whole. That would include both subsection (3), which talks about a mailing address, and subsection (3.3), which talks about an email address. In order for the court to make sense of the meaning of subsection (3.3), “email address” must mean something different than “mailing address.” Otherwise, subsection (3.3) is ren­dered meaningless, if it’s necessarily included in the previous subsection.

[1:40 p.m.]

Also, words are taken out of their ordinary meaning — “a mailing address,” an address at which you receive mail. We believe that the courts are already using this interpretation of the word “address.” We’re clarifying the existing jurisprudence on this by saying “mailing address” and that when read together with subsection 3.3, the courts will be able to reason their way to our intention here.

M. de Jong: Let’s then go to 4.1, which may ultimately be slightly more relevant. Here’s what I get when I read 4.1 as it relates to deemed delivery of a dispute notice. And, of course, this can be significant in terms of timing and limitation periods for the filing of disputes. When I read this, it suggests to me that if you have your violation ticket and it provides you with an electronic address to which you may file your dispute, you fill out that address on your computer and whatever the required form is or attachment that undoubtedly will be part of that, and you press “Send.”

That is deemed to have been submission and — assuming it happens within the right period of time — timely submission. It matters not whether someone has received it, seen it, whether the server is down or if you can demonstrate that…. God knows there are lots of technology issues with servers. But once the recipient of the violation ticket has fulfilled that requirement, their notice of dispute is deemed to have been delivered. Have I got that correct?

Hon. D. Eby: There are other registries and tribunals that accept electronically submitted documents and have a deeming provision like this. The residential tenancy branch is one. They receive things electronically. It’s deemed received on the date submitted, not the date processed by the residential tenancy branch. Small claims court has a similar provision. This is modelled on those provisions.

The member was wondering about what the template would look like for submitting. Our anticipation is that — now, I unfortunately have had one of these tickets recently, a parking ticket — when you have a parking ticket and you want to pay it or you want to file a dispute with some cities, there is an online webpage. You enter your ticket number. It pulls up your record. It gives you some options. Do you wish to pay it? Do you wish to dispute it? Then when you submit it, it gives you a confirmation number for that.

That’s the format that we anticipate here — that the person will get a confirmation that they have submitted. When they submit it — and the legislation is clear — that is the deemed date that it has been filed with the court for the purposes of any kind of limitation period for the dispute.

[1:45 p.m.]

M. de Jong: I don’t take issue with what the attorney has provided by way of information to the committee. I think my question was — and maybe drawing on the other examples that he’s made as to determine whether this has become an issue — in a situation where the enforcement agency is deeming a conviction by default where there has been, from their perspective, no receipt of any dispute notice. At some point in the future, the recipient of the violation ticket simply says: “Well, I pressed ‘Send.’ I don’t know what happened to it.”

What happens in that case? It strikes me that, under the provisions, in setting aside the finding, the person would simply have to say: “Look, I pressed ‘Send.’ The act says that when I press ‘Send,’ you’re deemed to have received it.” Has that been a problem in the other…? What happens in that kind of a scenario?

Hon. D. Eby: We’re anticipating that the system will provide a notification, on submission, to someone. They could then take a screen capture, or if they’ve provided an email address, they have received some kind of confirmation through that. If they haven’t received that and they submitted it….

This legislation that’s in front of the House does not say it’s deemed submitted on the date that you received confirmation. It says it’s deemed submitted on the date that you submitted it. So that would become a question of fact for a court on an application, where the person shows up to set aside the default order and says: “I submitted it. I don’t know what the problem was.” It would be up to the court to determine whether they accepted that as a description of what happened and gave the person more time to file.

M. de Jong: Thanks to the Attorney.

I think that’s it on clause 1, actually.

Clauses 1 and 2 approved.

On clause 3.

M. de Jong: I think this is more of a question, maybe through the Attorney, to the drafting folks. Why are we amending the amendment to section 2 and not just incorporating the final wording?

It struck me as a rather clumsy way to accomplish…. I understand the need to address treaty First Nation law. We seem to be amending the amendment, as opposed to simply…. It makes something that’s already complicated even that much more complicated.

Hon. D. Eby: The member is right. It is unusual. There’s a reason for it, though, as the member may have intuited.

The member will remember, of course — who could forget? — Miscellaneous Statutes Amendment Act (No. 2), 2021, back in the fall of 2021. There were amendments to the Offence Act relating to treaty First Nation ticketing within that bill. Those provisions are brought into force by regulation. They have not yet been brought into force. If those provisions haven’t yet been brought into force, and this bill is going to be brought into force, we need to have this section related to treaty First Nation law come into force later.

This section is brought into force by regulation. It’s a separate section so that we can work with the timing of these two bills and bring them into force in a coordinated way so that the statute book makes sense.

Clause 3 approved.

On clause 4.

[1:50 p.m.]

M. de Jong: We’ve taken a phrase out of the existing 15.1. In clause 4, it says what that phrase is, “…’a justice hearing the trial on a violation ticket’” and substituting a different phrase: “…’at a hearing in relation to a violation ticket…’” — and then the reference to “a justice.” What’s the significance in terms of replacing the word “trial” with “hearing”? It’s purposeful, but what is the relevance and significance?

Hon. D. Eby: The word “hearing” refers to a broader set of proceedings in front of court than just the word “trial.” An example would be an application hearing — like an application to adjourn a trial date. “Hearing” has been used elsewhere in the amendments, so it ensures consistency but also captures what we want, which is broader than just a trial.

M. de Jong: That’s helpful. The act I have, or my version of the act, contains a heading. And I realize, under the canons of construction, one must be cautious about attributing substandard relevance to the headings.

The heading says: “Evidence admissible in trial on a violation ticket.” Now, the Attorney has offered an explanation for trying to capture a broader set of judicial proceedings. Is it problematic that the heading for the section apparently will remain “Evidence admissible in trial on a violation ticket”?

Hon. D. Eby: These headings are not part of the legislation. They’re put in by editors within the office of leg. counsel. This is the original heading: “Evidence admissible in trial on a violation ticket.”

There are two possibilities here. One is that leg. counsel is aware and they are going to be editing that heading to reflect the content of the amendments. The other possibility is that the member has spotted something that leg. counsel was not aware of, in which case, I’d like to thank him for bringing it to my attention and to staff’s attention, and advise him that it doesn’t have to be amended in this process in the Legislature. I’ll ask staff to have a look at that, and they can amend headings outside of the legislative process.

M. de Jong: Can I ask this question? We’re going to get this, I think, here momentarily in the next section. Is there any relevance or significance between the two terms “trial” and “hearing,” relevant to the question of parties being in attendance — if the Attorney understands my point?

Does a trial, by definition, require people to be in physical attendance, versus a hearing, which may have broader rules about the necessity of parties being present? Do those terms have any relevance with respect to the physical attendance of the parties?

[1:55 p.m.]

Hon. D. Eby: A trial is a hearing, but not all hearings are trials. A special thank-you to staff for that one.

It’s up to the court whether they need to have a person attending in person in front of them for the matter or not. It’s up to the court how the particular judge or justice would like to handle that. There is no particular significance in itself to whether it’s a hearing, like an adjournment application, or a trial. But one would expect that if there was an obligation to have somebody in person, it would be related to the seriousness of the matter being determined at either the trial or the procedural motion.

Clause 4 approved.

On clause 5.

M. de Jong: Clause 5 is probably one of the two areas where I think, perhaps, a significant philosophical question comes into play that I’d like to take a few moments to explore with the Attorney.

Maybe the best way to start is…. We have an existing section 15.2 in the Offence Act. That existing section is going to be repealed, or proposed to be repealed, by clause 5 and replaced by the proposed 15.2.

Maybe the best place to start is simply to ask the Attorney to put on the record an explanation for what is being sought to be achieved here and what the significant difference is between this proposed section 15.2 and what presently exists in the Offence Act.

Hon. D. Eby: So 15.2 currently limits the ability to appear electronically only to those matters that are prescribed by regulation. Currently, Motor Vehicle Act of­fences are the only ones that are prescribed.

[2:00 p.m.]

The change is that rather than having it be exceptional that you are able to appear virtually, we are putting in place a hierarchy of rules that permit the chief judge to set, as a default approach, electronic appearances.

The way that the new section works, the hierarchy goes as follows. As a general rule, when you’re talking about appearing on an offence matter, the default is in person. The expectation is that it’s in person. Now, layered on top of that are the rules of court, which can be created by cabinet and which can affect that default method. So the rules of court can affect how people appear.

Notwithstanding that default appearance in person, and subject to the rules of court, this new provision allows the chief judge to direct, for certain classes of tickets, hearings or appearances, that they may be heard by another method of attendance, by telephone, video conference or other means of electronic communication, by default. It creates that ability for the chief judge to override that default method of attendance in person.

Then it has another element to it, which is that an individual judge hearing a matter, despite the fact that the chief judge has said the default is online, can direct some other form of attendance, including in person.

Let’s say they’re dealing with someone, their Internet is continually kicking out, and they’re having difficulty with their system to appear online. The judge can say, “Okay, enough of this; we’re going to need you to come in to deal with this dispute,” and can direct, in that particular matter, that the matter proceed through an in-person process.

[S. Chandra Herbert in the chair.]

M. de Jong: Hon. Chair, that’s a good place for us to start the conversation.

The Attorney, in his answer, has emphasized to the committee the important and central roles of both the chief judge and an individual judge hearing a matter. I’m going to ask. That discretionary authority to stray from the presumptive means of a hearing — that is, one to be held in person under the newly proposed sub 15.2(1)…. The existing provision, sub 15.2(1), again makes reference to the applicable rules of court, but says: “…a justice hearing the trial on a violation ticket may adopt procedures that are conducive to justly and expeditiously determining the matter.”

The justice, in the existing provisions, seems to be pro­vided with fairly expansive powers and authority to adopt different procedures. I don’t think it would preclude some of these other “telephone, video conference or other means of electronic communication.” So the authority that the Attorney points to in the newly proposed 15.2, particularly in sub (2), seems to already exist in the existing sub 15.2(1). Or am I wrong? Is the justice’s authority somehow limited in the existing provision?

[2:05 p.m.]

The Chair: Attorney.

Hon. D. Eby: Oh, thank you, hon. Chair, and welcome.

The new section creates the broad authority for the chief justice to deem a different method of appearance for individuals. That does not exist currently. What does exist currently in the section that the member has pointed out permits a judge hearing an individual matter to have authority over all procedure related to that matter that’s not otherwise dealt with by the rules or the act. The judge may not use that authority to override the current section 15.2 that says that you can only appear in this way for Motor Vehicle Act offences.

What we have here is a significant broadening of the authority of the chief judge to have this method of appearance for classes of violation ticket and an ability of an individual judge to include, in that general authority around procedure on the matter, the decision, to say, “Well, I know the chief judge said, by default, that you should be online, but that’s just not working in this matter. So we’re going to bring you in, in person, or deal with it in some other way” — by phone, for example.

The Chair: The Minister of Jobs, Economic Recovery and Innovation seeks leave to make an introduction.

Hon. R. Kahlon: Yeah. Can I seek leave?

Leave granted.

Introductions by Members

Hon. R. Kahlon: Sorry. I didn’t want to wreck the flow of the member for Abbotsford West, but I’m sure he’ll get right back into the zone once I make the introduction that I need to make.

It’s my real pleasure today to rise today to introduce our Canadian Women’s Rugby Sevens team, who are here visiting the B.C. Legislature. They just recently in the Bahamas clinched a spot to go to the Rugby Sevens World Cup. We’re extremely proud of them. They’re going to be playing games here on the Island. In Langford, they’ll be playing against Mexico, Spain and Australia. I think Australia is ranked No. 1 right now — not for long. So they’ll be playing against them.

I want to introduce each of them: Elissa Alarie; Pam­phinette Buisa; Olivia Apps; Brittany Waters, who’s a coach; Jack Hanratty, who’s a coach; Renee Gonzalez, who’s a coach; Fancy Bermudez, who didn’t get trapped in the elevator, which is good; and Darcy Patterson. And also joining them here is Julianne Zussman’s brother.

I’m hoping the House can please make these amazing athletes welcome.

Interjection.

The Chair: Thank you. Go Canada, indeed.

Debate Continued

M. de Jong: Welcome to Team Canada. They may be the only Canadians that have encountered a scrum rougher than the ones we get around here sometimes.

Right. Back to the business at hand. Okay. I think I have the Attorney’s point about…. The existing act provided an individualized power as it related to an individual proceeding. This purports to create a broader authority vested in the chief judge to create general directions and general presumptions about procedures that will govern violation tickets.

[2:10 p.m.]

This is where I…. Forgive me. My submission on this point will be a little lengthier than, hopefully, most of my other ones have been, because the conversation has tended to focus — and it has in this committee proceeding as well — on highway traffic offences.

In a moment I’ll ask the Attorney…. Or maybe someone can make a note of this question now, and he can address it as part of his overall response. The assumption is that in creating this power, he and the government have some hopes — I won’t say expectations, because the Attorney will point out that what he is creating is an authority that the chief judge can exercise — about how the power will be exercised to create a different means for dealing with highway traffic matters than is presently the case in what is generally referred to as traffic court.

We’ll park that question, and the Attorney can perhaps address it somewhere along the line in the conversation that we are having.

With the assistance of some of the staff in the opposition and the Attorney General’s ministry, I tried to make the point through these conversations that we are talking about violation tickets that go beyond highway traffic legislation. I’ll come back to that in a moment, because the implications for people on some of these highway traffic offences can be significant. That additional ticket could lead to the loss of the ability to drive, and that could have serious ramifications for employment purposes, simply getting to and from work, and for some people, the act of driving is their work.

I don’t anticipate any argument from the Attorney General about the significance of the matters that are being dealt with. Not always but in many instances…. Even as it relates to traffic offences, the amounts of money are significant, but the implications of losing the privilege to drive are perhaps even more significant for people.

But this will cover other matters as well. At least I think it will. Again, if I’m incorrect, then I hope the Attorney will correct me, but the power being created would allow for the chief judge to determine that hearings into violation tickets can be held by telephone, video conference. We do this elsewhere. We do this at the residential tenancy branch. I understand that, and I accept that.

Some of the other pieces of legislation, though, to which this will apply…. Here’s just a sampling: the Wildfire Act legislation. I mean, I looked at some of these and saw where the fines are in the thousands of dollars. Under the regulation…. I’m not suggesting that these are issued every day, but the regulations, when they are presented by government, are presented to the public as saying: “Look how seriously we take this, and that’s why we are creating fines of $10,000 or even $100,000 for offences under the Wildfire Act regulation.”

The Environmental Assessment Act includes fines upwards of $250,000. The Environmental Management Act — fines in the thousands of dollars under the regulation: $75,000, $10,000, $40,000, depending on the sections that we are dealing with.

[2:15 p.m.]

Maybe I should begin simply by asking this question of the Attorney. Am I correct that passage of this section will vest in the chief judge of the Provincial Court the exclusive ability hereafter to determine that those violation tickets, as well as highway traffic matters, can be conducted through non-traditional proceedings that don’t involve the accused facing their accuser in person in a traditional hearing or trial setting?

Hon. D. Eby: The member is certainly right. There are provincial penalties that range as high as he outlined, but where these amendments part ways from that is that these proposed amendments only deal with violation tickets. The highest possible fine in British Columbia currently associated with a violation ticket is $2,000. That’s offences under two COVID-19-related enactments: the Access to Services (COVID-19) Act and the COVID-19 Related Measures Act. There is a mandatory victim surcharge via an additional $300 — so the ticket, $2,000, and then the total cost, as much as $2,300. The judge does have the discretion to reduce that. That is the high end, the high watermark currently for violation tickets in the province and, by extension, the high watermark, then, for these amendments.

Any offence you see in the statute book that has a higher fine, like some of those that the member listed, is not prosecuted by violation tickets but through a long-form information process through the Prosecution Service. These amendments do not impact that process at all. That process does allow people to appear by audio or video conference in certain circumstances, but those are imported from the Criminal Code into the Offence Act, and it’s a separate process.

M. de Jong: Let’s come back, then, for a moment to the question as it relates to highway traffic offences and the implications of this change for those wishing to dispute allegations of violations of highway traffic provisions.

Let me, first of all, just ask straight-up. My sense is that the government is hoping that through the creation of these provisions, disputes involving highway traffic violation tickets will be conducted differently. Is that a fair assumption on my part?

[2:20 p.m.]

Hon. D. Eby: I think the member is correct from government’s perspective. The reason we’re bringing these amendments forward and enabling the chief judge to have these authorities is we hope that she will take us up on this and use electronic processes for hearings where that’s consistent with the administration of justice. I believe that justice administration processes should be proportionate to the interests that are at play.

When you’re talking about violation tickets, an online hearing can capture and can provide a fair and impartial hearing in our Provincial Court to people, and in a way that’s more accessible. You don’t have to take the whole day off and sit in Robson Square waiting for your hearing. You can do it from your phone. That is going to be a significant advantage for a lot of people who otherwise might just be like, “I can’t be bothered to raise my objection to this ticket. I can’t take that kind of time off work,” or whatever.

Similarly for the system, for a judge that happens to be available in some other part of the province, thousands of kilometres away from where the disputant is. The chief judge could assign that judge to do a hearing in a completely different city so that that judicial resource is not wasted and that hearing is allowed to go ahead. It brings efficiencies to the system. For a lot of reasons, I think this is really positive. But at the end of the day, it is an enabling provision, so it’s up to the chief judge how she deploys it in her court. I am optimistic that she’ll take us up on it.

M. de Jong: Here’s where I think the challenge lies. I think the Attorney and I can probably draw on examples that would support any kind of submission around this. In the case of the individual who hasn’t received a speeding ticket their whole life or hasn’t received one in 20 years and takes issue with the fact and wants to maintain a clear record but for whom the consequences of being convicted of that violation ticket are restricted to the payment of the fine, which is not inconsequential, the idea of having access to a less burdensome procedure may well be quite appealing, as the Attorney has pointed out.

For the commercial truck driver whose livelihood de­pends on the ability to drive and now finds himself or herself facing an allegation, a conviction which will result in the loss of their livelihood, the ability to convene before an adjudicator, before a judge, and, in a more formalized way, present a defence or be confronted by the allegations of the Crown in that formalized hearing becomes, I think, fairly important.

The challenge here is that once the provision takes effect, the discretion will vest entirely in a single person, albeit a learned person. But if exercised in the way that the Attorney candidly and, I think, fairly has expressed on behalf of the government, for that person for whom the determination of that violation ticket will be the difference between not only whether they can drive their personal vehicle but maintain their employment, that opportunity to be heard in person in the way that we are accustomed to today will disappear.

[2:25 p.m.]

We can say: “Look, someone can make an application to have an in-person hearing.” But I think the distinction here is whether that person (a) should have to and (b) the likelihood over time of that application being heard. You know, we used to say the same thing about the residential tenancy branch. Well, try getting an in-person hearing now. You’re not going to get one. Over time, this will become the norm.

We can say all of the usual procedural safeguards are in place, and they should be, but the formality associated with gathering in a single place for the Crown to present their case against an individual and for the accused to be able to present a defence is still, I think, relevant and still real. This will likely eliminate that opportunity for people facing consequences far graver than just a $300 fine.

I will say I am troubled by that, and others are troubled by it. Insofar as some of the other provincial provisions that I’ve spoken to, some of them, in addition to the fines that are levied, can carry with them significant social stigmatization in terms of convictions that flow.

It is the likely elimination of that ability for people fac­ing significant consequences upon conviction — the elimination of their ability to confront, in person, their accuser in a place physically before the adjudicator of the matter — that troubles me. I say that by way of statement but also by way of asking the Attorney General what he would say to that person who, confronted by the possibility of losing not just their licence to drive but their livelihood, will no longer, likely, have the opportunity to confront their accuser in the traditional setting by which these disputes and these violation tickets are heard.

[2:30 p.m.]

Hon. D. Eby: Under our current system, the prosecutor in many of these matters is, in fact, the witness officer, who also not infrequently appears by phone in court. That process has been upheld as constitutional by our courts. I think that that scenario…. It’s obviously up to the judge and the individual disputants.

I don’t find that as accessible in terms of confronting an accuser as when a person is appearing by video in front of you, and you can see them, and the judge can see them, and they’re testifying. But that may be a matter of personal preference.

Regardless, we’re not dealing with a sort of world where, under the current system, everybody is in court together and that’s the process, because that is not what happens in many of these cases. The witness officer and prosecutor are on the phone. So it’s important to know what the status quo is and what we’re proposing to make available as a new method of appearance.

Second is, even in really serious matters and Criminal Code proceedings, the judge can order section 715.23. The judge can order people to appear in different ways, including remotely, online. The family rules have similar provisions.

The member was part of the government that introduced the civil resolution tribunal, something that I really support because it is a very positive justice reform to hear small claims matters under $5,000. We’ve had an exchange about some reforms that our government has brought into that process as well. But it’s something that consistently gets really high ratings from people who participate in it — as accessible and useful and fair and a good process — all done online.

In our Supreme Court, we are seeing chambers matters done online and bail court from remote communities being done online. This is definitely part of a trend. But in all of these processes, including this one, the court retains, and the judge that is seized with the matter retains, the discretion to look at the facts that are in front of that judge, the implications for the individual and that individual’s wishes, and may require an in-person hearing versus an online hearing.

I accept the member’s suggestion that probably that would be a high burden for someone to meet. It’s speculative, but I suspect it’s probably true. I don’t know. It will be at the judge’s discretion when they order in-person hearings and the chief judge’s discretion about what matters will proceed online. But I accept, and I certainly hope, that the intent here is that the default for many of these proceedings will be online.

It’s a shift, but I think it’s a positive shift in a number of ways. It’s important to recognize what we’re shifting from in order to truly evaluate the implications for somebody that is contesting something of very significant importance to them.

M. de Jong: It strikes me that a practical dilemma that an accused will face here — and it is genuinely a practical dilemma — is that as the stakes increase around the consequences, the decision around investing the time, energy and possibly financial resources in defending the action will increase also. But in making an application to a judge to have a particular witness or to have the hearing conducted other than electronically, it will be difficult for that accused to say to the judge: “Well, the stakes involved here are very high.”

The judge will know, whether it’s expressed explicitly or not, that that likely had something to do with the accused’s driving record which, in and of itself, will signal something to the court.

[2:35 p.m.]

There will be that practical challenge associated with bringing an application for a different type of hearing than that which the Attorney and the government hope will become the norm. The Attorney may be interested to hear his thoughts on that practical issue that will face a person in receipt of a violation ticket.

Then, secondly, it strikes me that having granted this general authority — more general than what presently exists in the Offence Act — were problems to arise, of the sort that I’ve been discussing, it will be difficult to withdraw this power from the chief judge and return to where the default hearing is an in-person hearing of the sort that we see associated with a traffic court today.

Those are two questions. The second one being: having vested this authority in the chief judge statutorily, and created that broader general authority, is that something that the government, or any government in the future, would be in a position to withdraw, having regard for the independence of the judiciary?

Hon. D. Eby: Two pieces. One is that it would, for better or worse, be a relatively trivial matter — a regulatory amendment change to the Rules of Court that could withdraw this authority from the chief judge, under the hierarchy of the new section 15.2(1). So it is certainly possible to do and not onerous, if government felt, for some reason, that this was going off the rails. I agree with the member that that is very unlikely, but it is legally not hard.

The second matter, of a judge hearing some information on an application to have an in-person hearing and why it’s important to the person and the consequences — if they get one more point, they lose their licence and that kind of thing — I have a couple of responses. One is that, practically, the judge hearing the procedural application is very likely to be a different judge than the one hearing the matter itself. Even if it were the same judge, Provincial Court judges — judges, generally; justices — hear matters that they have to disabuse themselves of in order to reach a final determination.

In criminal processes, there might be a voir dire on a constitutional issue. The judge hears a significant amount of evidence and then rules that that evidence can’t be admitted at trial and then goes on to hear the whole trial and reach a determination at the end, despite having heard and knowing about this other evidence they excluded that might suggest the guilt of the person that’s in front of them.

We ask them, under our system, to set aside that knowledge and to proceed in any event. The same would be true for an application that someone made about why it was important to have an in-person hearing.

[2:40 p.m.]

M. de Jong: With respect to the first point, the Attorney has drawn the committee’s attention to sub 15.2(2), the applicability of the rules of court. Is the argument or the suggestion, then, that were the government or a subse­quent government to decide that the approach being advo­cated or provided for here was not achieving the desired results, short of repealing this provision, an amendment to the rules of court that set out restrictions on the manner in which the chief judge can exercise this power would be valid and withstand challenge.

Hon. D. Eby: The authority is subject to the rules of court. It’s in the legislation.

I think the member will appreciate that the relationship between the government and the judiciary is one of partnership and respect for our respective independence. When it comes to rules of court, there is an Attorney General rules committee. We tend to work on these things collaboratively. Sometimes it goes really well, and sometimes we struggle. I know the member will identify. Sometimes the relationship is more fraught than other times.

I don’t want to be cavalier about what it means to change the rules of court in this way. From a technical legal standpoint, the rules of court are regulation that can be changed by LGIC. This authority is subject to those rules of court, and the government could change that. We do believe that that would be upheld as legitimate and well within these amendments and the existing legislation.

M. de Jong: I have seen it enough over the years, these kinds of proposals, to know that one of the things the Attorney would have received in the course of developing this legislative package of amendments is some analysis of the degree to which this will have an impact on the present operation of the courts.

In that regard, what can the Attorney…? If the provision is passed, if it is enacted and, the qualifier being, if the chief judge were to make use of the authority provided in the newly, then, amended 15.2, what does the government anticipate the impact to be? How many cases are heard today in what we generally refer to as traffic court? Following the implementation of the change and its full adoption, what is the anticipated impact going to be, both in terms of case numbers and the cost associated with the administration of justice?

[2:45 p.m.]

Hon. D. Eby: I’ll give the member some ballpark numbers and then some more specific numbers. So ballpark: somewhere between 60,000 and 80,000 tickets are disputed on an annual basis. Of those — the trends we see — only 30 percent proceed to a hearing in front of a judge, a trial in front of a judge, and only 5 percent of that total actually complete a trial and get to the point where a judge is making a guilty or not-guilty decision. Those are the broad trends.

The specific numbers for fiscal 2021 — a pandemic year, so the numbers are lower than usual: 61,604 tickets were disputed, and 20,312 of those were deemed not to be disputed because people didn’t show up for the hearing. Of those, 8,110 were dismissed for want of prosecution, which means that the prosecutor was not there for those hearings — as I said in an answer to a previous question, typically the police officer, but not always.

So 2,937 of those 61,000 proceeded to a trial with a not-guilty plea and were determined by a judge, and 16,227 of those 61,000 had the person pleading guilty in front of the judge, so there was not a finding of guilt, but there was a plea of guilt. Those typically relate to an attempt by the individual to reduce the amount of the ticket or seek more time to pay, and 14,000 of these tickets involved either other pleas, where people were successful in pleading that they were guilty of a lesser included offence — that they admitted some elements of it — and/or that the prosecutor withdrew the ticket or the superintendent cancelled it, that kind of thing, sort of a catch-all category.

Now, in terms of how many of those matters are actually going to proceed to a hearing through the online process, that is a very open question. It is distinctly possible that the people who don’t show up for a physical hearing — because they couldn’t get the day off work, they couldn’t get to court in time, or they couldn’t wait for their hearing — may be more likely to appear through an online process. Or we may see people with technical issues less likely able to show up — and see that number, of people failing to appear, go up.

[2:50 p.m.]

This is very much going to be an iterative process. We’re going to get into some provisions, later in the bill, about the pilot nature of some of the things we’re going to try, to see where we can find efficiencies in this process.

For example, all those people who show up and are like, “Yeah, well, I was definitely doing what you said I was doing, but I’d like to pay less,” or: “I’d like more time to pay.” You’ve got the police officer there, ready to prosecute. You’ve got the judge ready to make a determination. It’s like: “Well, why did we assemble everybody if you’re going to admit the offence?” So it’s being able to deal with those earlier in the process.

The goal of all of this is to improve efficiency and the experience of people in the justice system. If we’re not achieving those goals, the court is less likely to be using it. If we are, then, as the member suggests, this will become a regular part of our justice system in British Columbia in relation to these kinds of offences.

It is a project and an initiative, in partnership with our Provincial Court, that we hope will achieve a couple of goals. One is to improve efficiency in the system. The other is to improve people’s experience of the system. What impact that has on how many people proceed through a trial is very difficult to predict at this stage.

M. de Jong: Thanks to the Attorney. Let’s, then, just for a moment, talk about the…. I’m not surprised to hear the Attorney talk about the objective of improved efficiency. Having seen some of these submissions and analytical pieces in the past, it generally, attached to that, comes with an estimate of cost savings.

It’s usually a range, because there are some variables attached to this that make absolute predictions difficult. In attempting to direct away from the traditional in-person hearing that today predominates, I presume, under the guise of improved efficiencies, that the Attorney has been provided with estimates on what the cost savings would be, both to the ministry and to the courts. What’s he able to share with the committee in that regard?

Hon. D. Eby: Staff advise me that we don’t have any figures to share with the member, in terms of projections about savings or efficiencies, but I do have from them some big-picture pieces that these reforms may address. In the numbers I presented to the member, 70 percent of trial time is wasted. It’s wasted because someone shows up there saying: “Yeah, you got me. I plead guilty.”

[2:55 p.m.]

They’re wasted because people don’t show up, either on the prosecution side or on the disputant side. That means there is a possibility here that even if we see an increased number of people showing up for hearings and more people disputing, the more efficient use of time could still result in significantly reduced wastage of court time. That includes sheriffs, the judge, the clerk, the police officer who is attending — often as the prosecutor as well — and the disputant’s time too, sitting and waiting in the courthouse for their matter to be called.

It’s very difficult to put a figure on that until we have some experience. We have a little bit of experience in the family law side through analogous but different reforms, where there is a dispute resolution process upfront before people get to court. Some of the pilot pieces we’re going to talk about here create that ability for us to have those kinds of determinations before everybody gets to court, in terms of somebody having more time to pay or those kinds of things.

The results are quite striking where issues are narrowed and preliminary matters are dealt with before people go to court. We’ve released our findings about the effect of those reforms, which are very positive. I’m hopeful that these reforms will provide significant efficiencies.

If we end up putting the same amount of resources in, but they are used more effectively and efficiently, we create space for population growth or for improved processes where more people are willing to show up and dispute their tickets that otherwise would have let something go or not appeared. I think it will be net positive for the justice system, government and all participants in the hearing.

M. de Jong: My purpose is not to take the balance of the day and argue with the Attorney General about the attractiveness of — particularly, the attractiveness from the point of view of the Crown, from the prosecution service, from court services branch and the courts themselves — adopting approaches that tap into available technology and ease the burdens associated with administering our justice system. I think that the Attorney is going to be able to point to where some of those efficiencies might occur.

Where I struggle a little bit — perhaps more than a little bit — is the developing trend that takes all of those things into account, but perhaps does not take as fully into account the challenge facing that individual citizen who is confronted by an allegation that can have extremely serious ramifications for them, for their family, sometimes their business, and frequently their employment, and whose ability, now, to address that allegation is changing.

Now if I use the word “compromise,” the Attorney may take issue. Maybe people other than the Attorney would take issue. But there is, I believe, a fundamental importance associated with the ability of an accused person to confront in person, in a place, those who are accusing her or him of having committed a violation of the law and for whom the sanctions can be quite serious.

I will say that the Attorney has not, I think, tried to hide anything. These provisions are being created in the hopes that systems will develop, that the courts will make use of them, that alter — and, to a certain extent, limit — that citizen’s traditional ability to confront in person the accusation and the accusers that bring him or her to the justice system.

[3:00 p.m.]

Whilst I understand the motivation behind creating the new tool, I have to register my concern and the opposition’s concern that there are not sufficient safeguards in place to ensure that, where the sanction the individual citizen is facing can be so serious that that fundamental right to face their accuser in a traditional form is being protected.

[J. Tegart in the chair.]

I don’t expect that I’m going to persuade the Attorney in that respect, but I have appreciated the opportunity to be able to register that concern as it relates to the proposed changes to section 15.2 of the Offence Act.

Hon. D. Eby: Thank you to the member. I recognize and respect his right to express concern about this. But I do think it’s important not to romanticize what currently happens in Provincial Court right now in traffic disputes.

The prosecution is the witness officer, in many cases, that gave the person the ticket. That person is appearing, in many cases, by phone into the courtroom, where someone who shows up to dispute their ticket has been waiting in the hallway for hours, took the day off work, is unsure when their matter is going to be called. I know the member has been in Provincial Court across the province and has seen how this happens.

I mean, justice is a service that’s delivered to British Columbians in a variety of different ways, but generally speaking, that’s how these matters are going ahead. You don’t get to confront your accuser, who is also your prosecutor. Their voice is coming out of a speaker phone in front of you.

In many respects, this is superior to that approach, if the court adopts this — that you can see them, you can look them in the eyes when they’re testifying. You are not subject to the same kind of procedural challenges in dealing with your life and schedule, especially if your matter goes down for some reason and gets scheduled for another day unexpectedly. You see the number of people who don’t attend, who dispute their tickets and then just don’t even show up for their hearing.

It is one thing to compare this to an ideal of perfect justice, and it is another to contrast it with the reality of someone disputing a matter in Provincial Court, which is challenging, stressful and time-consuming. We should compare, fairly, these reforms with what happens currently.

The second piece is…. I do want to point out that…. I don’t mean this to be political in the sense that everything we do here is political, but I don’t mean it to be more political than it sounds, which is that I know that the previous government looked at the cost of administering courthouses across the province and made a decision to close a number of courthouses. There were a lot of people who stood up and said, “You can’t do this. This is the right of people to go to court. We need the courthouse in our community” — these kinds of things.

They must have had a vision of how…. I do want to note that the member was the champion of opening a new courthouse in Abbotsford. I continued that work when I became Attorney General, and we opened that together. So I don’t mean it to be underhanded, but I do want to say that there was a recognition, whether I agreed with it or not, by the previous government that, I believe, they made that decision that justice could be delivered in different ways in different places.

This is an example of a philosophy of justice being a service for British Columbians. We need to meet people where they’re at, and we need to deliver justice services to them in a way that is accessible to them.

[3:05 p.m.]

Many people are very, very comfortable with using online services in this way and find it preferable. I accept that it’s not everybody, and that is why there are processes here that allow the court to take into consideration the particular aspects of somebody’s matter that is in front of them and to proceed accordingly, considering all of the facts that are in front of them — the person’s individual needs, and so on.

These online processes do create the possibility of translators for literally hundreds of languages being available to assist in matters, as they are in the civil resolution tribunal. It enables scheduling. It enables efficient allocation of judicial resources. It enables delivery of justice services in remote communities as our government expands Internet access across the province.

I am very enthusiastic and positive about this actually expanding access to justice and justice services in the province, taking into account, absolutely, the member’s concerns. This is an important issue that government should be aware of and that we will be aware of as we monitor the implementation of this. We don’t make light of it. But at the same time, I have a very different perspective about the positive nature of this reform.

Clause 5 approved on division.

On clause 6.

M. de Jong: I wonder if the Attorney, just in general terms to place on the record…. Clauses 6 and 7 obviously relate to similar provisions and a situation in which the dispute is not whether an act has occurred, but the appropriate amount of fine that a person should pay who has committed and acknowledges that act. If he could just provide a description of what the objective of these sections is.

Hon. D. Eby: Section 6 relates to something called Form M, which is a prescribed form. It’s currently called Form M. That is a request for more time to pay or a reduced fine. Section 6 enables that form to be submitted online. It’s just an extension of what currently happens into the electronic forum.

Then 7 does the same in relation to treaty First Nation laws. So the separation of that in these two sections is for the same reason as we previously discussed: just to ensure that it syncs up when coming into force with other amendments that we did in the fall of 2021 in a separate misc bill.

Clause 6 approved.

Clauses 7 to 11 inclusive approved.

On clause 12.

M. de Jong: The government and the Attorney are purporting, through clause 12, to create an additional mechanism by which certain matters can be dealt with, and that is a conference.

[3:10 p.m.]

I wonder if the committee might prevail upon the Attorney to explain what the roughly two pages of legislation pertaining to clause 12 and the creation of the conference in relation to violation tickets are designed to create.

Hon. D. Eby: Essentially, this is a codification of an ability for us to create pilot projects that enable and facilitate what more traditionally would be known as a courthouse steps conversation. The idea is that there are a significant number of people who dispute their ticket, and they don’t necessarily want a trial.

They want to understand the perspective of the other side. They want to ask for more time to pay. They want a reduced fine. They have a fundamental misunderstanding of what they’re being accused of versus what the ticket is for. On clearing that up, their dispute is resolved. It is a way of trying to find out whether a trial is actually necessary.

There are a couple of pieces to this that are really important to understand, given some of the commentary that has taken place in the media, particularly from lawyers who practise in this area. The first is that participation in any of these pilots will be entirely voluntary. You don’t have to do it. You’re welcome to not do it. It is something that will be offered but not required.

The second is that these provisions sunset four years from the date they come into force so that there is a requirement to come back to the Legislature and say, “We did these pilots. We saw these results. Shall we keep doing this?” and get the Legislature’s sign-off on making permanent some of those pilot project initiatives. So there are a number of aspects of this that we can get into in some detail, but big picture, that is what is proposed here.

M. de Jong: Two questions. I’ll ask them at the same time. The first relates to the sunset provision, which I presume the Attorney is referring to — that which is contained in subclause 12(8) in the bill. Then the second part of what the Attorney referred to is the voluntary nature. That which makes this participation in these conferences voluntary seems to me to be less clear than the provision contained in 12(8), which I think makes the sunset provision very clear.

Can the Attorney walk the committee through how the provisions work in a way that an accused person, the recipient of a violation ticket, can be certain, and others can be certain, that participation in these conferences will not, via regulation, become a mandatory feature of the matter being litigated?

Hon. D. Eby: For the member’s first question, section 12, it’s the very last subsection. Subsection 8 — he is correct — is the sunset provision. This section referring to 18.4 is repealed four years after the date it comes into force and, on its repeal, any regulations made under it, unless repealed earlier, are also repealed. So the whole thing disappears from the statute book, essentially, four years from the date it comes into force.

[3:15 p.m.]

The second question, about how people can be confident that participation in the conference will be entirely voluntary — that government won’t use these regulation-making authorities to have a conscriptive conference…. The full answer to that is subsection (4), which says that whatever pilot government sets up by regulation, the conference must — it’s not an option — be initiated by the person who disputed the violation ticket.

The decision about whether the conference happens, whether it’s initiated, is entirely in the hands of the disputant who received the ticket and wants to dispute it. It’s not in the hands of the prosecutor or the court or government. It’s the person who’s disputing the ticket.

M. de Jong: Thanks. To be clear, the provision in sub (4) is to be read that in order for a conference to take place, it must be initiated by the recipient of the violation ticket, but they are not compelled to initiate such a conference.

Hon. D. Eby: That is correct.

M. de Jong: Maybe we can come to the part of this that has attracted some commentary outside of these walls. That is the provisions of clause 12 — what would become sub-sub 18.4(2)(c) — and the ability, by regulation, to designate who may or may not or must attend a conference. I mean, I won’t…. I think the Attorney is smart enough to know what some of the concerns have been, and that is on the part of those who may wish to be represented by counsel.

I don’t know that the Attorney has made any public comment on how that regulatory power would be exercised or how he and the government intend to exercise it. The concern, I think, derives from the fact that the power would exist that as part of a judicial proceeding relating to the dispute of a violation ticket, the state would assume unto itself the authority to determine whether or not an accused person could be represented or bring with them legal representation. As a principle, that is causing concern, and it’s a concern that I share. But I put it before the Attorney, and the place for us to start, I think, is to hear his response to that concern.

[3:20 p.m.]

Hon. D. Eby: First of all, where the critique is accurate. This provision does create the ability to exclude certain participants from this courthouse steps conversation. The people who could be excluded could be a presiding judge, justice. It could be witnesses. It could be counsel. That’s where the critique is correct.

Where it, in my opinion, overswings is where that is stretched to allegations that we are excluding people from having a lawyer at a trial or having a lawyer on a matter — we canvassed this with the member opposite, my critic — that is very important to them. That is not what this is about.

This is about a streamlined process for those people who are disputing tickets that want to engage with the prosecutor and have a discussion about that ticket and, potentially, avoid a trial. It is entirely voluntary. People will not be surprised by what the requirements of this process are. It will be very clear to them, before they initiate one of these conferences, what the requirements are for them.

What we don’t want to do is have this become a second trial. We want it to be a streamlined conversation: “Look, what is it you want here? What is it you’d like to hear or know? What are you trying to get out of this process?” “Okay, this is what I would like. What can we do here?” “Okay, we can arrange that. We don’t have to have a trial.” Then the matter is resolved.

Again, the process is voluntary. Also, where the critique overswings is that there’s not been a determination yet that lawyers are to be excluded from this. It’s possible, under the provision, but it’s not been predetermined. We’ll work through it with the court. Because it is a pilot, we will try different things to see what works well to achieve that goal. This is something that happens in other Canadian jurisdictions and has had success, which is why we’re looking at doing it here in British Columbia.

I think it’s useful to have context here. When I gave the member the number of tickets where people dispute — which, in this most recent fiscal year, was 64,000 — the number of people who are represented by counsel was 1,881. So that’s about 5 percent this year. From 2016 through 2020, inclusive, the percentages of represented parties in disputes was 4.01 percent, 5.17 percent, 6.22 percent, 7.15 percent and 5.25 percent.

The overwhelming majority of people are showing up with no lawyer, trying to find their way through the process and have this opportunity to go ahead in this way. Those who are represented by counsel will be advised by them: “I think this is a good idea for you” or “I think this is a terrible idea. I think I should be by your side, and I think we should do a trial. Let me look after that.” That’s the benefit of having counsel.

[3:25 p.m.]

M. de Jong: Let me assure the Attorney of the areas where I accept and do not quarrel with the explanation. I understand, first of all, that we are having this conversation as it relates to clause 12 and the creation of this conference mechanism — not a trial, not a hearing, not an ultimate determination of guilt or innocence.

I also understand and accept that the process is a voluntary one — and the Attorney has pointed to the provisions that govern that — and that also, as a pilot project, unless this Legislature determines that it is to be extended, the pilot will cease to operate, and the regs that pertain to it, four years after the date it comes into force.

I don’t want the Attorney to be concerned that I am trying to overly amplify or extend the concern into areas that would not be appropriate. But I did find the statistics that the Attorney provided interesting, as it relates to the relatively small number of cases — violation tickets, the majority of which are traffic-related — for which counsel was involved. And though I don’t have specific data, I suspect that the higher the stakes for the individual, the more likely it was that counsel would be involved.

Now, maybe there are people out there with lots of extra money who just like hiring lawyers, but I didn’t meet a lot of them along the way. I’m guessing that what prompted the retention of counsel was a concern about the implications of a guilty verdict and the implications for the individual.

Now we’ve decided — the government and the Attorney have decided — that there is merit in creating this mechanism by which people can have a conversation separate and apart and in advance of a trial. I think that idea may well have some merit in terms of finding efficiencies. We’ll find that out over the course of the next four years.

Where I think there is a legitimate concern, however, is on the part of an accused who says: “Okay. Well, here’s this mechanism that may be of assistance to resolving this matter. I have chosen to retain counsel because the outcome is that important to me, but my legal representative can’t participate in this process.” So on the one hand, the state is saying it’s a process that has merit, that is worthwhile, that involves benefits, but because I have chosen to retain counsel, I’m not able to participate. At least, I may not.

I’m cognizant of what the Attorney has said — that there’s no final decision on that matter — but he has also candidly acknowledged that there may well be a regulation that precludes counsel from participating in the conference. That, I think, is an important principle.

Where the state establishes a dispute resolution process — in this case, pertaining to violation tickets — to suggest that an accused person, by virtue of having decided to be represented by counsel, can’t or may not be able to participate as fully as someone else, I think that is problematic. I think that even in those limited circumstances, given the magnitude of the consequences that can flow from a finding of guilt on some of these violation tickets, that is going a step too far — or, at least, creating a regulatory power that could go a step too far.

[3:30 p.m.]

I have tried to find a way here in the last few days to, in a positive way, try to address the fact, and maybe I’ll come to that in a moment.

Maybe, out of fairness, I should, if he wishes, allow the Attorney to respond to how I have tried to express the concern as it relates to a regulatory power that could be used and — the Attorney has fairly pointed out — might be used to limit participation in a settlement conference atmosphere to eliminate participation by an accused’s legal counsel. I think that that’s going a step too far, if it were to occur, and I don’t think that that regulatory power needs to be quite that broad. But the Attorney may have different thoughts.

Hon. D. Eby: A couple of pieces. Maybe we’re talking at odds here, where I say: “Well, the overwhelming majority of people are self-represented, and they need this kind of assistance and this opportunity available to them to have that informal conversation.” The member says: “Yes, but there’s this minority of people who I’m concerned about, and I think they should be able to bring their lawyer.” So trying to find some space in the middle here.

There is nothing about retaining a lawyer, even if ultimately there were a pilot where it said that for this kind of conference, lawyers are restricted from attending. Like the CRT, there is nothing that prevents that individual from talking to the lawyer and saying, “There is this conference,” and the lawyer saying: “Look, you go in there. Here are the things that you asked for. If you can’t get those things, don’t agree to anything.” The conference is just as available to that person, and they can go in armed with the legal advice that they’ve been given.

But, again, that may or may not be the case in a given pilot. The pilot is — our hope is — for the vast majority of people who dispute their tickets, who are self-represented. This could provide an opportunity for them to talk through with judicial justice, for example, who is not going to hear the ultimate matter. “Here’s the evidence I have, and here’s my dispute.”

The JJ can say: “Well, your dispute is a Charter dispute,” or “Your dispute is some other piece that brings administrative processes that are not immediately available to you, so you’re going to have to follow some other processes to get there,” or “You don’t actually have any evidence, and you’re acknowledging the offence. So at trial, if you acknowledge the offence, you’re going to be found guilty. So what you’re really asking for is more time to pay or a reduced fine.”

[3:35 p.m.]

I can tell the member — and I’m sure the member has had conversations like this, with doing pro bono work or in a clinic or something like that — about people just not understanding what the purpose is of disputing a ticket and what you’re doing when you’re disputing a ticket.

So that is our intention here with these pilots — to have those frank courthouse steps discussions. Simply because you retain a lawyer, even if lawyers were somehow restricted, it would not prevent you from participating in them.

That’s the way that it works in other jurisdictions that have these kinds of provisions and also in the CRT that we have provincially for some civil matters.

M. de Jong: I want to assure the Attorney that I understand and accept there is nothing in clause 12 that precludes an individual from retaining counsel for the purpose of disputing a violation ticket, with this potential qualification. And that is, the possibility that with respect to a conference — I’ll call it a settlement conference; maybe that’s not the right word in this context — to explore the matter further, it is possible that that individual’s legal representative may not be entitled to attend that particular procedure on behalf of the accused.

That is a principle. And this is where the difference, I think, might occur: as a principle, I don’t think the Attorney is overly troubled, or troubled at all, by that for reasons that he has enunciated. I am, perhaps, more troubled by a situation in which we would create a mechanism that is designed to assist in the resolution of these kinds of disputes and violation tickets but would at this stage retain the possibility through regulation that an individual’s legal representative might not be entitled to participate in one component of the dispute resolution process.

As a principle, I think that is problematic and something that troubles I and the opposition. In the spirit of trying to find a positive way to address this, I wonder if I might direct the committee and the Attorney to what would be 18.4 sub (f) in clause 12 of the bill, which speaks to “respecting circumstances in which a prosecutor or person designated under the regulations to act in the place of a prosecutor and a defendant may enter into an agreement resolving the matter.”

I am inclined to offer this suggestion. I have a feeling I know what the Attorney’s response would be. But that is, in sub (f), after the word “defendant,” to propose an amendment, the phrase “or a defendant’s legal representative may enter into an agreement resolving the matter,” as a way of signifying an acceptance of the possibility that a defendant’s legal representative could be part of the conference process.

I wonder, just to formalize the discussion, if I might propose that amendment — after the word defendant in sub (f), the phrase: “or a defendant’s legal representative.”

[3:40 p.m.]

The Chair: For clarification from the member, are you moving the amendment or asking for clarification from the minister?

M. de Jong: No. To be fair to the minister, I think I was moving the amendment for the committee’s consideration.

The Chair: We have an amendment to Bill 17, to clause 12, subsection 18.4(2)(f), to add after “and the defendant….” The addition is: “and defendant’s legal council.”

[CLAUSE 12, [by adding the underlined text as shown:]

12 The following section is added:

Regulations respecting conference in relation to violation tickets

18.4 (1) The Lieutenant Governor in Council may make regulations respecting a conference that is

(a) regarding a dispute under section 15 in respect of the allegation or the fine portion of the ticketed amount indicated on the violation ticket,

(b) held with or without a justice, and

(c) held before a notice of hearing or notice of appearance is sent under section 15 (6).

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) providing that a conference is available in respect of one or both of the following:

(i) the allegation;

(ii) the fine portion of the ticketed amount indicated on the violation ticket;

(b) designating a person or a class of persons to act in the place of a prosecutor at a conference;

(c) respecting who may, may not or must attend a conference;

(d) respecting the application of section 15 (6) and (8) to (12) or 15.4 to a violation ticket if a conference is initiated;

(e) respecting the manner in which a conference is held or the methods of attendance at a conference;

(f) respecting circumstances in which a prosecutor or person designated under the regulations to act in the place of a prosecutor and a defendant and defendant’s legal council may enter into an agreement resolving the matter;

(g) respecting agreements that may be entered into at a conference that resolve the matter, subject to the approval of a justice;

(h) respecting the manner of approval by a justice of an agreement referred to in paragraph (g);

(i) respecting agreements that may be entered into at a conference that resolve the matter and that do not require the approval of a justice;

(j) for the purposes of an agreement entered into under this section in relation to an offence, prescribing another offence, whether or not it is an included offence;

(k) respecting amendments that may be made to a violation ticket;

(l) providing for administrative matters in relation to a conference.

(3) For the purposes of this section, the Lieutenant Governor in Council may make regulations establishing classes of violation tickets to which the regulations under this section apply and may make different regulations for different classes of violation tickets, which classes may be based on one or more of the following:

(a) enactments;

(b) offences;

(c) enforcement officers;

(d) types of violation tickets;

(e) dates of completion of violation tickets;

(f) dates of service of violation tickets;

(g) amounts of the fine portion of ticketed amounts indicated on violation tickets;

(h) circumstances relating to the conference;

(i) court registries;

(j) hearing locations;

(k) conference locations.

(4) A conference must be initiated by the person who disputed the violation ticket.

(5) If a minimum fine is established under the Motor Vehicle Act for contravention of a provision of that Act, a fine of less than the minimum established may not be imposed if there is a conference.

(6) If a person or class of persons designated under subsection (2) (b) are not enforcement officers, section 63.1 applies in relation to the designated person or class of persons as if they were enforcement officers.

(7) If a regulation made under this section conflicts with this Act, the regulation prevails to the extent of the conflict.

(8) This section is repealed 4 years after the date it comes into force and, on its repeal, any regulations made under it, unless repealed earlier, are also repealed.]

On the amendment.

Hon. D. Eby: Hon. Chair, on the amendment, I take the spirit of what the member is proposing — which is his understanding that government should not have the authority to exclude, potentially, somebody’s lawyer from this essentially pretrial matter.

I’ve tried to express the reasons why government would like to reserve that authority in relation to this informal process, to ensure a simplified process, to provide the ability for people to have frank conversation in an entirely voluntary, non-trial, non-binding way, and advised the member that it’s not necessarily the case that this authority would be used. In any event, it sunsets, and we would have to come back to the Legislature if we wanted to make any of it permanent.

[3:45 p.m.]

I have to admit to being a bit perplexed at what I know the member did, when he was in cabinet, with the civil resolution tribunal, for similar reasons. The government of the day then — in something that I support, something that our government has in fact expanded — with the civil resolution tribunal, set up a process where lawyers could be excluded by the CRT on the trial, not on a preliminary matter but on the hearing, not on an insignificant matter for any British Columbians but on civil matters up to $5,000.

To the member’s credit, consistently — we have changed that — there was a full trial de novo that could happen after the CRT process in Provincial Court with counsel. Our government has changed that. But there was this full trial without a lawyer, where lawyers were explicitly excluded. So I do find it a bit inconsistent that this is very troubling — that this voluntary process, this courthouse-steps discussion that could potentially exclude lawyers, is very troubling to the opposition, yet a full trial without counsel wasn’t.

Putting that inconsistency aside, I think it’s important that we’re able to, in consultation with the chief judge, work with different approaches to these conferences to find the way that works best. We may find that the conferences work best with counsel. That is a distinct possibility. But we may also find that they assume a legalistic, second-trial process — an attempt at discovery of a witness, the prosecuting officer — and that it doesn’t work at all. So this simply preserves the ability to try it and see what works best and then come back to the Legislature and say: “This worked really well. Here’s the information for you about what happened. We’d like to make this permanent.”

So for that reason…. I respect — the member, as counsel, and certainly, as counsel myself — the enthusiasm for having counsel present at all matters and all steps. But I respectfully disagree with his proposed amendment and do not support it.

The Chair: Are there any other speakers to the amendment?

Seeing none, we will vote on the amendment.

Amendment negatived on division.

Clause 12 approved on division.

Clauses 13 to 23 inclusive approved.

Title approved.

Hon. D. Eby: I move the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 3:48 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 17 — MISCELLANEOUS STATUTES
AMENDMENT ACT, 2022

Bill 17, Miscellaneous Statutes Amendment Act, 2022, reported complete without amendment, read a third time and passed.

[3:50 p.m.]

Hon. D. Eby: I call second reading of Bill 10, Labour Relations Code Amendment Act.

[J. Tegart in the chair.]

Second Reading of Bills

BILL 10 — LABOUR RELATIONS CODE
AMENDMENT ACT, 2022

(continued)

M. Morris: I carry on from where I finished off yesterday. The ramifications of this bill, to adversely affect our province in the construction sector right across the province, are pretty evident. I’m quite surprised at some of the things that are being suggested in this bill. One of the things I’m concerned about — I’ll get into some of the bill here later — the first part, is union certification. Some have termed it to be union raiding, designating the months of July and August for this to happen.

I’m just going to go back a little bit in my history as an RCMP member. Like I said yesterday, when I was speaking earlier on this bill, I’ve had a lot of interaction with various unions over the years — good and bad. I’ve had a lot of social interaction with union members. Some of the misbehaviour — I guess I might term it in that fashion — or the worst-behaved times — I guess I’ll put it that way — that I used to witness were in those times when a union would come in and try and certify the existing union that was in place at the time.

Tempers used to run pretty high. The police would have to come and keep the peace. Oftentimes things got quite physical. I don’t want to go back to those days. I don’t want to see those days come back. I think we have progressed a long way since those particular days with the advent of diplomacy, with a lot of the tools that we have now in order to make things work. For the last 30 years or so, things have been working pretty well in that regard. So I’m curious as to why the minister would decide to include that in this bill and bring it forward at this particular time.

We’ll find out, I guess, when we pop the hood open during committee stage on this. I’m curious as to that particular part, because this is the height of the construction season, July and August, particularly in the northern parts of the province, when construction is going full-bore. People want to get the work done, get things enclosed before the winter months set in. The last thing that is wanted by anybody during that period of time is any kind of labour disruption. This will possibly lead to that. I don’t know why government would be wanting to try and disrupt the construction season in July and August.

[3:55 p.m.]

Is it to give more power to government-approved unions under the CBA scheme that they have working? Is it to bring more unions into the government-​approved union realm? Or is it to break the unions that are currently resisting government? We’ve heard this in this House already: I think about 55 or 60 percent of the construction workers work outside of these designated, government-approved unions. I’m curious about that. Hopefully, we’ll hear some rationalization for that during the committee stage.

I want to talk a little bit about the issue of democracy and voting. There’s a court case, several years now…. It’s Supreme Court of Canada. It’s referenced as Advance Cutting and Coring Ltd. from 2001. I know it’s a case that has often been referenced by labour lawyers. I haven’t looked at labour law much. My area was always in the criminal law and the administrative law field, so there’s much greater expertise in both sides of the room here than myself.

I’m going to read a couple of paragraphs from that just because I want to see how it fits into this scheme that we’re seeing. The court stated in here: “The organization of labour must, in a civilized manner, be elaborated and strengthened for its essential function in an economy of private enterprise. For this, there must be enlightened leadership at the top and democratic control at the bottom.”

Now, I’m going to just stop that quote at that particular one there: “enlightened leadership at the top and democratic control at the bottom.” The court has purposefully put “democratic control” in this — democratic control. The secret ballot is a fundamental part of democracy, a modern democracy. We’ve come a long way since we would flash a card or have a show of hands to demonstrate our acceptance or rejection of a certain thing. That’s ancient history. The secret ballot is a fundamental part of a modern functioning democracy.

Another paragraph that I’ll quote from this particular case is: “In the case of a legislated form of union security, the nature of the legislative scheme must also be closely scrutinized.”

The courts are saying: “We’ve got to have a close look at this.” This is what we’re doing when we’re at second reading — we’re just kind of talking about it — but the close scrutinization is going to come and will come during the committee stage of this particular bill. Even the courts are saying: “We’ve got to have a look at this, pretty close.”

If government intends to legislate an increased level of union security, we’d better have a very close look at this to make sure that it fits within the democratic process, that it fits the “democratic control” part that the courts had commented on earlier. I’m going to go into a fairly lengthy quote here, just to give the overall scheme of what Advance Cutting and Coring was all about. Then I’m going to talk a little bit about that quote, moving forward here.

“In this case, workers objected to being forced to join a union and objected generally to the compulsory unionization scheme, which is ideological in nature. This is a case where the freedom not to associate is markedly infringed. It is a clear situation of government coercion, the result of which mandates that workers in the construction industry…group together in a few unions which are specified and approved by government.”

I’m going to end the quote there and just say that sounds awfully much like the CBA scheme that this current government has brought in. In this case, the Supreme Court of Canada is saying: “Oh, you know, that’s not a good scheme. It’s infringing some rights here.” I’ll go on to quote.

[4:00 p.m.]

“The fact that there are five unions from which workers can choose in no way negates this infringement, for it remains government-mandated…affiliation. Self-realization of the worker is violated in many ways. He or she must unionize. Within the prescribed regime, democracy is further restricted by limited choice. There is no guarantee that a majority of voters will exercise their right. A default position can determine the outcome of elections. Those voting for minority associations may be left out of future negotiations.

“When freedom not to associate is considered in light of other Charter values, including liberty, freedom of conscience and expression, mobility and the right to work, it must be concluded that governmental mandatory union association infringes this important Charter right. Ideological conformity is engaged, in particular, because the members of the associations necessarily participate in and indirectly support a system of forced association and state control over work authority. This is a situation where the democratic rights of workers are taken away.

[S. Chandra Herbert in the chair.]

“Being forced to accept and participate in a system that severely limits the democratic principle in an area of labour relations is a form of coercion that cannot be segregated totally from ideological conformity.”

I think the statements that were made by the Supreme Court of Canada in Advance Cutting and Coring…. Pretty definitive, in my view, where they’re saying, from what I’m reading here…. I think the courts are pretty much saying that these community benefit agreements infringe the Charter.

Just as importantly, and pertaining to Bill 10, they’re saying that when it comes to identifying, holding up your union card and certifying they’re a member of the union in order to get to that certain percentage level, which in order, may lead to a secret ballot vote…. But it says there is no guarantee that a majority of voters will exercise their right.

That could be for a number of reasons. I’ve seen it, and I think we’ve all seen it in different situations over the years, where you have some people that are a little bit timid and maybe they don’t want to raise a hand or identify what side of the issue that he or she may be on, and they may just refuse to vote altogether. If it’s a secret ballot — and I think that there are all kinds of support for the success of a secret ballot in getting more people to signify what their intents are.

We don’t know their names. We can’t identify them, but we can tell by the number of particular votes that are there. But if there’s no guarantee that the majority of voters will exercise their right, the court says the default provision can determine the outcome of elections. So if people are afraid to show what they want to stand for because they’ll be identified, then the outcome of the election is going to be just a minority of the voters that are going to be participating in this.

The minority of people are going to exercise their right, and the rest of them will not. Those voting for minority associations may be left out of future negotiations. That’s what this particular bill I think will do. By merely showing a card to say that you’re a member of a particular union, it’s going to leave a lot of people out of the picture.

When freedom not to associate is considered in light of other Charter values, including liberty, freedom of conscience and expression, mobility and the right to work, those are pretty determinative words. They’re out of the Charter.

CBAs say that you have to belong to a certain union and you can work on this particular thing, this particular project, but that leaves out everybody else. So the right to work is violated and infringed, in my respective view on this, and it’s something that really needs to be looked at. And when we look at it….

[4:05 p.m.]

I go back to when we were in government. We built billions of dollars’ worth of construction projects in this province. We got the Port Mann Bridge done in two or three years without any labour disruption. We didn’t need a CBA to build it, to get it done. Nobody raised any issues with that. We built the Canada Line. We put thousands of people to work building the Canada Line and the Port Mann Bridge, and we got those projects done. We built other projects across the province — hospitals, schools.

This government has come in. They put CBAs in place. They’ve been in government for five years now. How many projects are finished? I don’t think we’ve got any that are finished. I think we’ve got lots that haven’t even been started yet.

I can’t see the benefit of the CBA. I don’t see the benefit or the detriment of what this Bill 10 is trying to address that is so important to cause these significant changes that affect the democratic process.

Signing union cards, I think, is an outdated process. This is something that we used years ago. We have much better processes in place today for that.

I’m going to quote another case. This is one I was familiar with because it involved a criminal matter but some constitutional challenges at the time, back in 1986. It’s still referenced by Supreme Court cases and just about every other court across the province here. It’s R. v. Oakes. It’s from 1986. It was speaking about limiting the rights of an individual.

That particular case said: “Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom.” So it’s got to be sufficiently important to warrant overriding that.

I’m saying…. Okay. If it’s sufficiently important…. What was so important in today’s world of CBAs that we are now going to eliminate the secret ballot? I’m going to be really looking and listening intently for the minister to come up with these sufficiently important reasons during the committee stage.

It goes on to say: “The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection.” I think this is something that we really need to look at moving forward here with this. This is going to fundamentally change…. It’s going to bring discord to the construction sector right across the province once it’s brought in.

I’m wondering what societal concerns the minister can identify that are so pressing and substantial, in a free and democratic society, that he overrides these rights. I’m sure there’s going to be a lot of people looking at that and listening moving forward here. What societal concerns are causing government to legislate this path to self-actualization?

I did hear the minister in his opening comments. He’s trying to justify some of what was presented in the bill here. I don’t think that it was important enough, or sufficiently important, to override some of these Charter rights that we have. This is something….

We don’t take democracy lightly in this great country of ours. We have fought hard. There have been a number of court cases that have come in and have redefined these particular sections of the Charter of Rights and Freedoms since it was implemented. Court case after court case after court case is redefining and modifying the stance that the courts have in how these are interpreted right across the country here.

[4:10 p.m.]

I hope that anybody that’s out there in the construction business right now that has concerns about this particular piece of legislation, that has concerns about the loss of the secret ballot in union certification…. I know some of you are making noise. I’ve recently seen a letter that was signed by a number of concerned organizations and groups right across this province here, but this is something that I think we really need to look at. I think it’s something that government needs to be brought to bear on this.

We’ll see what happens here in the committee stage, but this is…. I firmly believe it in my heart that this is tearing away some of the fundamental Charter rights that every citizen has. It doesn’t matter whether they are in the construction field or not. Everybody has the right to work. It doesn’t matter whether they belong to a union or not. Everybody has the right to mobility, to travel through the province and work on any project they want, as long as they are qualified.

From my understanding, I think the CBAs are on shaky ground, and I think this particular piece of legislation, if challenged, might have some difficulty getting through the Charter process that we have in place protecting every citizen of British Columbia and Canada.

I certainly don’t support this bill, and I look forward to the committee stage.

L. Doerkson: I haven’t heard much bragging in here, so I thought maybe I’d start today by bringing greetings from, of course, the most beautiful riding of Cariboo-Chilcotin. So we’ll start on a good note.

I wanted to pick up a little bit where my colleague left off. I know we’re here to talk about Bill 10, the Labour Relations Code, and I’m happy to offer my thoughts on that.

But I do want to just talk about the challenges of maybe before some of these CBA agreements, because I’ve been quite frightened with respect to projects that are in my riding and the cost that has been associated to the potential of building, for instance, a hospital in Williams Lake. That number, of course, has not changed for a number of years. I am quite fearful that that number, of course, is wrong. I think it could be wrong in a great way.

I guess, with respect to the CBA agreements, and the situation that we’ve built here over the last number of years, my fear about that is that, of course, in many areas throughout this province we wouldn’t typically see those larger contractors that would be in that unionized sort of environment. So the cost to bringing a work crew to a place like Williams Lake and the challenges, by the way, around that, are massive in my mind. I think that that is something that has been somewhat forgotten or perhaps left out of the equation. I appreciate the comments from my colleague, because I think it is a grave concern.

I certainly do, as I say, want to talk about Bill 10, the Labour Relations Code Amendment Act. I want to explain that I have many concerns about the bill. I’ll take a few minutes to explain those concerns. In this place, it’s become, obviously, custom to place our votes publicly. I can suggest to you that on many occasions that has created stress in my life. I’m sure that many of us have experienced that pressure or the stress around that — casting your ballot publicly.

I just see that in this environment, Bill 10 will create, in some of these workplaces…. I just see it as creating more pressure and more stress on a workforce that can sometimes be placed in a very uncomfortable position. Not in all cases, but I didn’t hear the member wanting to stand up earlier. I think he had a chance.

Frankly, in my mind, it’s unfair. It is certainly alarming that we will create many awkward moments for thousands of people throughout this province that may be forced into this situation.

[4:15 p.m.]

I want to explain something. When I was a young man — many moons ago, of course — I had an opportunity to be a member of a local in the CUPE union, and I can tell you that, as an inexperienced young person, I did not feel comfortable, necessarily, in a room of people that had many more years and much more experience in all of the political workings of that organization. I can tell you that, in my case, it was easier not to participate at all. To me, that is wrong. You know, we should not have a workforce that is intimidated or afraid by anyone — not by employers, not by unions, not by anyone.

The secret ballot protected me in many cases. It allowed me to cast ballots for other things — elections of officers, other items. I don’t, for a moment…. I can’t even honestly believe that in a place here, where we obviously have secret ballots to have ourselves elected, we’re even having this conversation. I’m not sure what this could mean or will mean or could lead to with respect to other votes. Votes for union executives or positions of management and side unions — will those remain secret ballot or will that also be a public vote? If it’s not a public vote, well, then, why would we have this legislation before us?

I know that it’s a labour bill, and I understand that that may be a slightly different topic, but it does beg the question. I think that for anybody to be coerced to vote a certain way is not right. I feel that the secret ballot, of course, allows people that freedom to convey the way that they honestly feel is the best vote for them. Again, I can’t stress enough that in this House, we know the pressure of voting publicly.

Secret ballot, without question, is the bedrock of our democracy. People walking in every few years into a polling station to cast your ballot — it’s a common right. It’s something that obviously, fundamentally, has made our political system and the province, the country, and it is our basic fundamental rights. These are serious votes, and they will have serious impacts on workforces, on small businesses, large businesses. They will have serious impacts. This is not a local vote for the Williams Lake Stampede board of directors. It’s not, you know, a vote for the harvest fair executive. This is a serious vote, and it will have a serious impact — or could have.

I have to feel like I have to bring this up. This government knows about secrecy. We’ve talked about it in the House before. These are not my words, but it’s been voted the most secret government in Canada by the press. I want to talk about that for a moment, because the difficulties that have been created at many levels…. And I have felt this pressure as well, through added costs and added challenges, through FOI, freedom of information, trying to discourage me or others from acquiring information. I know that we all believe in secrecy.

I have found it difficult in what is supposed to be a transparent public system to acquire information about wildfires. I know how difficult it is, because I filed freedom of information in September of last year, and I’m still trying to get that information.

Deputy Speaker: Could the member help the Chair to understand the relationship to the act that we’re discussing?

L. Doerkson: Absolutely. I’d be happy to explain it. I’d intended on moving on past that anyhow. But I guess what I’m trying to point out is that the government, through this bill, is going to ask members of workforces to vote publicly in some circumstances, yet the secrecy and the privacy that seems to be around this government is much.

[4:20 p.m.]

I can’t believe that a government that has been awarded the designation of the most secret government in Canada would ask for anyone to stand in a public workplace and vote publicly. I hope that explains or potentially points you in the direction I was going to.

The freedom to join a union is a protected right under the Canadian Charter of Rights and Freedoms, so I’m certainly not against that. I really want to be clear about that. My frustration is not with potential certification. As I mentioned before, I was a member of a local in CUPE. I’m certainly not against that. I am against whatever motive may be lurking in Bill 10 to push this into a public voting situation. I can appreciate also that that is not in every case, of course. It is only in a few cases.

I’m not against the idea of union representation, and I want to make that very clear. My father was a union business agent with UFCW. My mother was a shop steward in the BCGEU. I think it was the BCGEU. Certainly, I’m not opposed to that. I’m opposed to the process. I think many of us in this House are opposed to what potential process could be put forth. Bill 10…. I feel as though the bill, in its current form, is going to remove the right of privacy for a person to vote, and I think that is dead wrong.

Something else that I want to talk about is that…. We’ve talked about and we’ve seen in other legislation recently — and we’ve heard it in the media — the cooling-off periods. I know that the government is in favour of that in other bills. Under the current system, there is an opportunity for that cooling-off period after cards are signed. There’s then a voting process, which is currently a secret ballot. Of course, that gives everyone the opportunity for a second thought about what is happening in their workplace.

Perhaps that period of time that passes is a good time of reflection. It’s a good time to get out of the anxious position that an employee could find themselves in, not just from employers but from colleagues, from people that they’re working with, from the union itself. I think that there could be significant pressure added by all of those parties.

I think that for the lack of a proper description, that cooling-off period — that time when someone can go home, discuss it with their family, discuss it with their loved ones and then be able to go back and cast a secret ballot — is a better system than what is being proposed under Bill 10. Let’s face it. This is not an easy time for an employee who may be feeling pressure from all of these groups. In my mind, it is a perfect opportunity to allow that person to decompress a little bit.

With respect to the way that, under Bill 10, we will get to a completed certification, I just can’t believe that reaching that 55 percent to avoid the secret ballot…. I can’t believe for one moment that there won’t be an opportunity for influence or intimidation from the people that may have the most to gain from the certification. I really am fearful of that too. I think that so many times we focus on what the employer might do. There are other people in this equation, and there are other motives at play here. I think that that has to be acknowledged.

In a recent press release, a quote suggested that single-step certification was important and crucial to protecting the rights to unionize without employer intimidation. As I just said, that’s an interesting comment, because I’ve talked to many people in my riding over the last couple of weeks about this bill specifically. They’re not my words, but I’ve been told that these unions can be just as aggressive inside the workplace. I think that needs to be noted. I guess just honestly, when I think about the suggestion of removing a secret ballot in any way, I really am still just shocked — especially here, as I’ve noted before.

[4:25 p.m.]

I want to take a few moments to discuss a few other things that Bill 10 will change and, certainly, problems or challenges it could create in the workplace. This is a process that is referred to as union raiding. This process allows unions to get competitive, of course, in the workplace. The ultimate attempt or ultimate goal is to take over the representation in that workplace. I guess this sort of points to exactly what I was saying with respect to businesses. That’s a competitive process.

I can’t imagine the fact that this is going to happen in the middle of summer, when so many of our people are incredibly busy, and that it’s going to happen every year. I think, again, under the old system, there was at least a cooling-off period to get used to your union. But I guess in Bill 10, what we’re going to see is that opportunity. I can’t believe that there won’t be incredible stress around that as well.

I don’t know. It’s not clear to me how many unions could be shopping for this workforce or working to gain the support of that workforce. So I don’t know what that means inside for the employees. But what I do know is that that process now being allowed to happen every year, rather than every three years, in the busiest months of the season — for construction operators, for road maintenance operators, for tourism operators and for everybody that is, certainly, in business — could create a complete nightmare in your busiest months of the year.

I guess my concern about that, too, is: what’s the cost to that, and who’s going to pay for it? You’ve gone through a certification process. Your workforce has been certified. A year later or perhaps even less…. I’m unclear, in the bill, whether that could happen six months later or seven. I’m unclear as to who will pay for that. Will it be the small business? Will it be the loss of hours, production, etc.? Will the business be made to allow certain things to happen in its workplace at their cost?

Then what about the transition? Now we’ve certified in October. Are we having a potential change of union in the middle of summer, in our busiest season? If we are, what does that transition look like, and who is going to pay for that? I am very concerned about that.

This has been attempted before. I do want to mention that. There were obviously some relationships back in 2019. This attempt at getting this passed was not supported by the Green Party, and the NDP was in a position to have to back down on this legislation. I’m very concerned that this didn’t fit the bill then. I’m not sure what’s changed between then and now. Certainly, I am concerned that this is not a good program for anybody, not for the employees and not for the workforce.

I just want to mention one poll that was done in The Orca. Seventy-nine percent — I’ll repeat that, 79 percent — of British Columbians support a secret ballot, as compared to only 9 percent. It’s not a poll done by me or us. That was done in The Orca. Nine percent, only, support the card check. Again, I can’t help but wonder what the motive is behind this bill if so many people — close to 80 percent of British Columbians — support the secret ballot, as compared to only 9 percent that don’t support it. I’m not sure what research the government has obtained to think that this is a better system.

[4:30 p.m.]

Mr. Speaker, before I close, I just want to thank you, of course, for the time here today. I cannot, in its current form, support this bill. I hope that the government will consider some sort of a mechanism or just simply make an amendment to keep the secret ballot. I know that many people have reached out to me to ask for me to convey that to this House. Hopefully, I’ve done that in a way that’s appropriate to you.

J. Sims: It’s my pleasure today to speak on this piece of legislation that is before the House. I don’t think it will come as any surprise to anyone who is watching — or will be reading this later during the early hours of the morning when they’re suffering from insomnia — that I support this legislation. As a teacher, I have looked at the issue of unionization and the roles unions have played in building our country. I can tell you that I have taught the history of the labour movement as part of the social studies curriculum.

I’m always, always in favour of having rules that are clear and are specified between people. In this case, what we’re talking about is when there is a unionized contract between a group of workers and the employer. What that contract is, is a very clear set of rules as to how that employer-employee relationship is going to work. It specifies the hours of work, your compensation, your benefits, the different leaves you’re covered by, the different privileges and responsibilities you have.

I have worked with a collective agreement, myself, in my life, as I was a teacher for a long time. There was a time, when I was a teacher, when there was not a collec­tive agreement for teachers, and I worked during that time as well.

But please bear with me as I give us a little bit of a background on the formation of the labour movement, of the unions back in the 19th century. It’s just as relevant today as it was back then.

As we know, when industrialization came in, there was a huge imbalance of power between the employers and the workers. In those times, there were lots of workers as the new machinery came in and began to be utilized — lots of workers who died at the workplace, lots of young children working as labourers, lots of people who were physically harmed and then unable to work. But also, all the power was in the hands of the employer. The workers found that they were at the mercy of the employer when it came to their working conditions and their compensation.

One of the things that happened was that a group of people got together and said: “Why don’t we go together?” I’m not going to give you a blow-by-blow history of the union movement, but at that time, workers got together. They sat down, and they said: “Okay, what are the issues that we are facing? What are our challenges? What are the dangers to our health and safety? What are the problems with the compensation?” And they went to meet with their employer together. Through the union movement, as it became formed, more of a level playing field was created between workers and employers.

Today people who have worked in a non-unionized environment have often shared with me how they feel once they move into a unionized environment — how the rules are so clear for them. They know what is expected of them, and they expect that kind of a fair treatment, and there is that respect.

I’ve also talked to employers who are very happy to have a unionized workforce, both in the private and the public sector. In the private sector, they say: “It gives us that clarity. It gives us a book of rules that both sides have to follow. It gives us that predictability we need for our businesses.”

[4:35 p.m.]

One thing we have learned throughout the pandemic is that workers were under incredible strain, as were the employers and the businesses. I think the pandemic gave people a moment to reflect — reflect on their working conditions and reflect on their compensation — and to look at quality of life. During that time, we’ve heard more and more workers saying that they are not getting fair compensation. Or the employer is saying: “Look. I’m finding it hard to attract and retain workers.”

We know we do have a labour shortage. We also know that when you have a workplace where the rules are clear and where there is mutual respect, then there is a stability about that workplace that will attract workers. When workers know that they have a voice at the table, that they have representation, that gives them that added comfort about being at that workplace.

Being unionized is not about being against the employer. It’s actually both sides having a set of rules as to how you’re going to engage and work together in order to benefit the company, because it’s in the workers’ interest to make sure that the company or the employer’s business is successful. So we always have to keep that in mind.

I know that when a problem arises in an non-unionized place, it can lead to some very lengthy litigation, whereas when you have a union, when you have clear rules, then you follow the process that is laid out there.

Being a member of a union…. We know that if we study our history, it is the labour movement that gave us what used to be our five-day week — though I’m wondering where it’s gone now — that gave us our weekends and gave us the holidays that were built in so that workers could have those and then later fought for benefits. One of the things I think all of us agree with is that every one of us deserves to be…. Plus, it gave us a lot of our health and safety rules and regulations.

Every one of us deserves to be in a safe workplace. On this international day of remembrance for those who were injured or lost their lives at their workplace, I think we can really say kudos to the labour movement and the employers who have done incredible work together to ensure that workplaces become safer. I always say: “Lots done. Lots more to do.” So we will proceed with that.

The labour movement has added a lot, and it has also…. When a union fights for better wages, that actually trickles down into the non-unionized workforce as well, because then everybody else has to raise their pay a little bit. One thing we do have to know is that people today are struggling with the cost of living. Throughout the years, the unions have played a major, major role in representing the voice of the workers, not only for their compensation in the way of pay and benefits but their working rates as well. All of that is important.

I’ve heard my colleagues from across the aisle speak quite strongly about “What was wrong with things? Things were working really well.” Well, I have that question for them as well, because things were working well with the card check, and then out of the blue the card check was gone, and the Liberals changed the system without real consensus or collaboration or sitting down and working through things.

I’m pleased to say that the Minister of Labour has worked very, very hard with a panel of experts leading up to Bill 30, and this was part of the consultation at that time. This was the piece that was left over, because people wanted to give employers an opportunity to show that these changes may not be needed. That’s what happened during the last number of years.

What I really want to say is…. I heard one of my colleagues previously say: “Look, we built the Canada Line. There wasn’t an issue then.” Well, I happened to be working out of an office that was right across the False Creek SkyTrain station. I can remember people marching up and down there at the treatment of the workers of the day.

[4:40 p.m.]

These were temporary foreign workers who were brought in to provide cheap labour — yes, I say that — and paid well below what would be acceptable, and their living conditions were absolutely deplorable.

There was a ruling against that, and we got condemned, even by the International Labour Organization, for our labour practices then. So I take no lessons from my colleagues across the way when they talk about how well things were built back when they were in power.

That is just one example. I could give you a litany of examples of workers and their compensation and how they were treated and how we didn’t grow the labour force that we needed to grow during that part — the skilled labour force — but also of the impact that had on workers right here in Canada, when there were people willing to work, but they were not given that work because temporary foreign workers were brought in. During that time, the amount of…. The only word I can use is “abuse” — on a level that is unbearable to think about.

I’m very, very proud that our government has committed to building infrastructure in a way that pays a unionized wage, provides benefits, but at the same time has built in that we are going to grow a B.C. labour force that is skilled, with apprenticeships, with diversity, with a First Nations workforce being trained and included in that as well.

When I was sitting here listening to some of the speeches over the last few days…. I want us to remember that sometimes when our colleagues try to paint the good old days of the previous government, it didn’t feel so good for workers in health care when they had their collective agreement destroyed. The majority of their work — mainly a women’s workforce, by the way — was contracted out, and their wages dropped, in some cases, by more than 50 percent.

I’m so proud that our government has brought those workers back into the workforce, back into the public health care system, and has started to look at that contracting out to see the damage that it has done. I’m proud of the work we have done in the amendments to the labour code as well.

This particular change…. The way my colleagues have gone on…. I’ve heard comparisons to Russia, in light of what’s going on in the Ukraine right now. I was sitting at home, shaking my head, thinking: what reality are these speeches coming from? Then today when I heard about how good things were back then, once again, I was forced to sit here and reflect on my experiences on the streets of Victoria being filled with working people. I can tell you that employers are not that happy either, because when your workers are not happy — let me tell you — they’re not as productive. When they’re not as productive, then it has a real, real say in the production that happens at the workplaces.

A unionized workplace in the private sector gives the employer a sense of security and a set of rules that they know are going to be in effect for two, three, four years for the length of the collective agreement. Then they know that when that is over, they’re going to come in and sit at the table and renegotiate. There are rules around negotiations that they follow as well. That further gives stability. I think that is also very important for us to remember.

The other question I heard was: has there been a problem since the legislation came in that we have to do this amendment? The panel of experts was very, very clear.

[4:45 p.m.]

They were kind of divided on this issue and said: “We need to give this an opportunity for the employer to see if the right things can be happening. If there isn’t that persecution and harassment and interference with the rights of workers to organize….” This, as we know, is a basic right under the labour code, but it is also a right that is recognized by the international labour agreements. We actually cherish that right, right here in British Columbia and Canada, not only because we know how good it is for workers and for employers but because we also know that it gives that respect, both to the worker and to the employer, that is so needed for a relationship.

The question was asked: “Why now?” Well, monitoring was done since 2019, since the legislation came in, and the consultation occurred. At that time, it was decided to give it a little bit more time, which was given. And remember that we do have this right to unionize under our Charter of Rights as well, and workers do deserve to have a say. The single-step certification system is maybe one of the cleanest ways to move forward and allow unionization to take place without giving that window of opportunity for the harassment.

Long before I became an MLA or a Member of Parliament, I heard about the horrendous challenges faced by some workers — I’m not saying all — when they tried to unionize and the barriers that were put up in their way. I remember people from the hospitality sector coming to speak with me when I was an MP and saying that anybody who spoke up, very conveniently, their shifts either got altered so badly that they couldn’t do them or they just didn’t get called to work, despite the fact that they had worked there for a long, long time.

Seniority, as we know, is important, and when you’ve done ten years of service with an employer, with that do come some rights and responsibilities if you’re doing your work. Nobody here is talking about defending workers who don’t do their job or when there are problems. That’s where the collective agreement, once again, has rules for fair process, due process, that the employer has access to and the employee has access to. When that process is resolved, either the differences are resolved or, in some cases, there is a parting of the ways, because the employee might have transgressed some of the critical components of the collective agreement. This isn’t about protection that way, but it is about due process.

I want to read into the record a few examples where, after 2019, there is evidence. When you look at the LRB and look at the roster, you will find many other pieces of evidence there as well to show that there has continued to be harassment and unfair labour practices that do interfere with the workers’ right to unionize, to organize collectively and to choose the union that they want to work with. Sometimes years of work has gone in to get them to a certain process, and then it’s that in-the-background interference that really derails and interferes with the basic right of a worker.

The three examples I want to read into the record today. One is from February of this year, 2022 — so it’s not that old, not that stale — where the LRB ruled that an electrical contractor on Vancouver Island interfered with their workers’ attempts to organize their workplace, with tactics such as threatening layoffs.

Just because you try to organize, to fight for fairness and to fight for a set of rules and ask for respect, you should not have to face threats of layoff. There are many workers who are living with that every day. They are trying to organize, they know it’s best for them to unionize, but they are really worried.

[4:50 p.m.]

January 22…. For my second example, a waste management company in the Lower Mainland fired a worker with 22 years’ experience for attempting to organize their workplace. Those are not my words. Those are the words of the Labour Relations Board — that the person was improperly fired, who had 22 years of experience. And what was the one thing that they did? They were trying to organize, which is their right in the charter. It’s the right under the labour code. It’s an internationally recognized right that we have in Canada.

In 2020 — here’s another case — a food processing company in the Okanagan fired two workers for attempting to organize their workplace. For attempting to organize, they just got fired, because in private workplaces where you don’t have a union, an employer can hire and fire, can give you hours here or move your shifts around.

Your compensation is also all over the place. There are no clear rules, and your rights are not written down anywhere. You have to rely on a very lengthy process through the Labour Relations Board and through the Employment Standards Act, which can take a long, long time and puts many people off. That length of time doesn’t put bread on your table. It doesn’t feed your family. What do you do then?

I’ve just given you a few examples, and those examples are post–Bill 30 from 2019. These examples point to why the Labour Minister has brought forward the amendment that is before this House today.

Workers still vote. They sign a card. Nobody forces them to sign a card. They sign a card. Once they’ve signed a card and a majority of them have said that they want a union, then the unionization process begins. That seems fairly straightforward to me.

I am really, really happy…. Because of the concerns I’ve had prior to my elected office and the concerns I hear on a very regular basis since I’ve been elected into office, around the challenges folks face when they do try to unionize…. The labour code protects the right to collective bargaining, and as we all know, that’s also guaranteed under the Canadian Charter of Rights and Freedoms.

Under the current system, unfair labour practices exist, and it is the duty of an elected government to make sure that where unfairness exists, we do our best to address those and to remove those barriers for workers. And I would argue that unionization is good for workers and good for employers. Nobody has been able to convince me otherwise during my working years.

I can tell you that as a teacher, before we became unionized, at the end of the year, the teacher shuffle used to happen. We used to call it…. Some people are not going to like the sound of this, and for many teachers, this will be old, old history. It was like the meat market, where you felt you were sort of being bartered off and being moved around. Now school boards have a right to move teachers around where they are needed, but all they have to do is follow a process.

In the same way, employers have a right, where transgressions are made by the employee, to discipline right up to removal. That right is not taken away from them. The right that’s taken away from them is to act willy-nilly and just to act on a whim or a feeling you have or because of a rumour you’ve heard.

[4:55 p.m.]

What you actually have to do is give that person what each and every one of us would want, which is due process, where they get a right to be heard, where they get a right to have their perspective put forward. This happens in a unionized place in a very respectful manner, with both sides having representation, and things get resolved.

I have argued and I believe to my core that workers need organization in order to create a level playing field. We do not need to fear unions.

I’m going to tell you a short story about a student of mine when I was teaching in Nanaimo. I had an executive from the MacMillan Bloedel mill come to talk to me, very, very upset that I was teaching his son the history of the labour movement, of the unions and why unions were important. I met with him, and I explained to him: “This is part of the curriculum. This is what we cover.” He was fine with that.

I can tell you that ten years later, when I met up with the same executive, he said to me: “One of the best things my son did was to learn about the importance of unions and organized labour and how to treat workers and how important it is to have rules.” He said: “My son has taught me a lot. I’ve learned a lot from him. I want to thank you for giving him that other perspective, which I was not able to give him.”

When we talk about unions…. A union is not some kind of a beast or something that exists on its own. It’s a group of workers at a worksite. There is an employer. They have an agreement that they have reached between them. There has to be give-and-take from both sides. That’s what negotiation is all about. The give-and-take has been done, and then they have a collective agreement.

For the duration of that collective agreement, they work according to those rules. Once time comes up for renegotiations, they renegotiate a few different rules. Most of it might be the same. There might be a little bit of friction. At the end of the day, by talking at the table…. I’ve always argued that a resolution is always found at the table. At the end of the day, a resolution is found, and people move forward.

I want each and every one of us to reflect on how a worker feels when they do not know their rights, when they do not have the support they need in order to exert their rights, when they do not even know how much their colleagues make who do the same job. They do not know when their employer is going to walk in and say to them, “You’re gone. I’m bringing in this other person tomorrow,” without cause.

I also want to say to employers that happy employees are more productive. They actually improve the bottom line. We know that when workers feel valued, they feel respected. They feel they have a say in their worklife. A place that works collaboratively, works together is going to be far more productive than us-and-them, with the employer being here and the workers being down here.

For me, having a union is a way of levelling the playing field in our workplace in a way that is clear, where the rules are written, and each side knows what their responsibilities are. Along with responsibilities, they also know what their rights are.

Card checks are not new to British Columbia. They were here before and worked fine. I know they will work fine this time too.

[5:00 p.m.]

As I said at the beginning, it’s no surprise to anyone that I support a unionized workplace and that I think workers have the right to choose to be a collective and to belong to a union. This amendment will help them, will assist them and will be of value to the employer in the long term as well.

Thank you for allowing me the privilege of speaking on this very, very important topic.

E. Ross: I take my place on behalf of Skeena to speak to Bill 10, the Labour Relations Code Amendment Act. We just got through listening to the member for Surrey-Panorama talking about how abusive employers can be without a union or without good, solid representation. I agree. I agree fully. In fact, it’s one of the reasons why we’re bringing up the gag order that’s been placed on nurses who have been told that if they proceed with whistleblowing on the work conditions and the way they’re being treated by their employer, they will be threatened with dismissal. Well, guess who their employer is: the B.C. government.

That’s what unions do. They advocate against abusive employers. We’ve got a medical system that’s in crisis, on the verge of collapse, and the workers that want to be part of the solution, who want to speak up, are not allowed to. Where is their union? Where are the members on that side fighting for their voice to be heard, whether it be doctors, nurses?

I agree. Workers need protection against abusive employers that threaten to dismiss you if you disclose what’s actually happening within a work climate and a work environment.

I’ve never been a part of a union. I’ve been lucky in my lifetime to work for employers who were very fair to me. But my dad was part of the organizing committee for the Native Brotherhood, a fishing union. In those days, the companies did not respect First Nations fishermen.

That side of the House, the government, wants us to believe that this conversation is going to rotate entirely around the need for unions. Everybody in this House agrees unions are needed. They’re crucial to keep a fair playing field.

What we’re really talking about here is a secret ballot. The government is actually talking about eliminating the secret ballot in terms of certification of unions. That’s what we’re talking about. Nobody’s disputing the rationale or need for unions. What we’re talking about is something so fundamental to democracy, so fundamental to the freedoms of Canadians.

I find it very ironic that myself, as an Aboriginal, am standing here having this conversation and trying to convince this House that we need to protect the sanctity of the secret ballot, mainly because as an Aboriginal, I’ve always lived a parallel life to Canada under the reserve system. It wasn’t until I became an elected leader in 2003 where I started to realize the value of the secret ballot. And I think what’s really troubling in this case here is that this government is actually depending on the apathy of British Columbians to push this bill through when you’re really talking about eliminating a secret ballot.

Prior to 2003, I’ve got to admit, I was one of the ones suffering from apathy and ignorance. It would have been easy enough for those rights to be eliminated or eroded because I had no interest in it prior to 2003. In fact, many of the non-Aboriginal ancestors that came to Canada came to Canada because of democracy, because of freedom, because they came from countries that did not have it.

[5:05 p.m.]

The secret ballot is just one component of our democracy. It’s a slippery slope when you start to take away the building blocks of democracy. The secret ballot is one crucial building block. I’m going to tell British Columbians: if you allow this to happen, if you allow this government to take away one building block, you have to be prepared for what the second building block will be, the third building block. One day you’re going to wake up, and you’re going to find out that democracy has eroded to something you don’t recognize.

In a place like Canada, in a first-world country that understands freedoms — in fact, fought for and battled for it in rooms like this, like the B.C. Legislature, for over 100 years, 150 years, to fine-tune what we have as a democracy — to turn around and start to take away something as fundamental and precious as a secret ballot is outrageous. I can’t believe we’re having this conversation. We’re talking about taking away a secret ballot.

Somebody on that side of the House, somebody in government, stand up in your speech and tell me why we’ve got to take away the secret ballot. Don’t divert the conversation. Don’t try to divert me and talk about the rationale for unions. I understand the rationale for unions. Explain to me why we have to take away the secret ballot.

This is an absurd conversation. It’s an absurd debate. Why am I, as an Aboriginal, standing up for Canada, when everything I’ve read, whether we’re talking about Australia, whether we’re talking about Canada, the United States…? Democracy and freedom is one of the most precious things that, actually, a lot of people around the world envy us for, that people are dying for around the world. But here we are clouding the issue and trying to make this an argument about the rationale for unions.

I don’t think there is anybody in this House who would vote against the idea for unions. But I think we all should stand up in this House — all 87 MLAs; every one of us stand up — and state: what do you think about secret ballots, whether it be in the context of provincial elections, federal elections, municipal elections? Even in terms of the NDP themselves, who use secret ballots for their own elections — secret ballots for their presidents, for their treasurers, regional representatives. They use secret ballots.

In fact, in 2018, the NDP’s own Labour Relations Code Review Panel report recommended keeping the secret ballot. The NDP ignored that and planned to scrap the secret ballot anyway, in terms of union certification. This is serious. Over 150 years in Canada alone where the secret ballot has been in place to protect the individual’s right to make their decision in private with no coercion, with no intimidation.

The battle even today is how to get more voter participation at all levels. But when you introduce a public system of voting, and you bring back the old days of coercion and intimidation because you’re not allowed to keep your decision secret anymore, you’re actually discouraging participation. Nobody in any setting wants to be coerced.

This is worth a long debate. This is worth a rigorous debate, and I don’t see it. I’ve heard my colleagues on this side of the House talking about the secret ballot, yet when we look across all the articles around the free world talking about democracy and freedom, you can read in these articles how much it’s valued — the electoral system in Canada.

[5:10 p.m.]

Democracy does not implement itself. Nor does it remain strong and healthy without underlying values and a firm will to apply and enforce them. That’s what we’re trying to do here. We’re trying to enforce and keep the secret ballot at all levels, because if you allow the secret ballot to disappear in one form, who knows where it’s going to end up next?

I’m really going to ask British Columbians to take a good look at this bill in terms of eliminating the secret ballot. This is not what I read in terms of how Canada was formed and how we continue to evolve over the years. As a democracy, it’s not a very clean system, of course. It’s not the most efficient. It’s very costly, and it’s hard work to maintain it. But that’s the way it should be.

We’re talking about individual freedoms and the power of government and the actual potential of government to abuse its authority, to abuse its power. I know we’re talking about a third party here in terms of union certification. But it’s the principle of the secret ballot we’re talking about. That’s what we’re talking about.

We heard the stories about how some of the members go home and talk to their children about union certification. Can you go home tonight and talk about the secret ballot and then come back and report to us what your children said? Educate them on democracy. This is not something to be taken lightly. With all the diversionary tactics that are typical with politicians, in this case, you’re playing with fire.

I’ll leave you this. The only way that we can defeat apathy and ignorance is to go out there and communicate and ask for feedback from British Columbians. There are many ways to do it, whether you’re talking about formal consultation or, in some cases, polls. In a recent poll, it showed that 79 percent of British Columbians oppose doing away with the secret ballot, and only 9 percent supported card checks. Bill 10 ignores this. This is a major step back for B.C. It’s a major step back for Canada. It’s a major step back for democracies. It’s a major step back for secret ballots that have been in place, that have been talked about ever since ancient Greece times.

It doesn’t make sense to go backwards in time. The central topic, in my mind, has got to be the secret ballot, because it is a fundamental principle to what Canada is, to what British Columbia is. We should aspire to build on that, not take it away.

P. Milobar: As we wrap up the week here, I’m proud to be able to take the floor to speak to Bill 10 on behalf of the constituents of Kamloops–North Thompson, as the previous speaker mentioned, an area like everywhere else in the province where all but 9 percent think that card checks should not be the only option for people as they try to unionize. That is the fundamental problem with Bill 10.

Bill 10 strips away democracy, and it’s just, frankly, bad legislation. We’ve seen bad legislation time and again come forward over the last couple of years with this government. It’s about the usage of time as they create and how they prioritize the bills that come forward.

[5:15 p.m.]

I look at this coming forward through the Labour Minister, who took five years to bring forward the legislation that we just finally passed around asbestos remediation and certification in an industry that’s claiming one-third of the lives in workplace accidents in a year.

On this, the Day of Mourning, that didn’t get priority. It took us five years to have that legislation brought forward. It was started to be worked on under our previous government. If we want to talk about the protection of workers, as we heard the member for Surrey-Panorama talk about, in workplaces, that takes all sorts of shapes, and it’s government’s job to find ways to protect workers. Asbestos legislation took five years. One-third of workplace deaths every year are associated with asbestos.

[Mr. Speaker in the chair.]

Whistleblower protection for nurses — not until, potentially, late 2024. Why is that important? Well, when you talk to the nurses, they want to be able to speak freely, without retribution from their employer, from the health authorities, from the Health Minister, about what’s really going on, about what’s making their workplace unsafe, about the assaults that they’re subject to from patients on a regular basis.

Was that prioritized by this government? No. Instead we have a piece of legislation that seems to be prioritized, and brought forward in fairly quick order, to take away the fundamental right of democracy for workers that would like to unionize.

I look forward to continuing my comments. I’m not sure, Mr. Speaker, if you’d like me to note the hour at this point. I see the committee is in. I will reserve my place in the speaking order and move to adjourn debate.

P. Milobar moved adjournment of debate.

Motion approved.

Committee of Supply (Section A), having reported progress, was granted leave to sit again.

Hon. L. Beare moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until Monday, 10 a.m., May 2.

The House adjourned at 5:17 p.m.