Orders of the Day

Hon. R. Kahlon: In the chamber, I call Committee of the Whole for Bill 21, Legal Professions Act.

[2:50 p.m.]

In Douglas Fir Committee Room, I call Committee of the Whole for Bill 25, Haida Nation Recognition Amendment Act.

In Birch Committee Room, I call Committee Supply for the Ministry of Public Safety and Solicitor General.

Committee of the Whole House

BILL 21 — LEGAL PROFESSIONS ACT

(continued)

The House in Committee of the Whole (Section B) on Bill 21; J. Tegart in the chair.

The committee met at 2:53 p.m.

The Chair: We’ll call the committee to order. We’re dealing with Bill 21, Legal Professions Act.

On clause 1 (continued).

M. de Jong: The discussion has and will continue. I thought, as we move, maybe, with some greater particularity around some of the definitions contained in clause 1 of the bill, that a good way to characterize that or to preface that exchange would be…. I have heard the Attorney General’s response to a number of the questions about the approach that was taken, the process that was followed.

I think the Attorney will agree, though, that what is being proposed here is a significant realignment, and I use that as a neutral term, insofar as the regulation of legal professions is concerned. What is it particularly about the model that has been in existence…? By that I mean the Law Society, the benchers.

In the Attorney’s own words, what is it particularly about that model that the Attorney General and government feel is problematic and has prompted this significant, dare I say dramatic, shift?

[2:55 p.m.]

Hon. N. Sharma: I’ve spoken at length about the process that led up to today. I’m going to narrow it down specifically, because I think the member was asking about the governance structure in particular. I can go through all the reasons that led up to the many changes that are in this bill, but in particular, I think, the CBA did a governance review in 2014, and then I mentioned the Cayton report that the Law Society issued in 2021.

In Cayton, the core recommendations included proposals for the reduction of elected benchers, an increase in proportion of publicly appointed benchers and reform of the electoral college model in a manner that would facilitate not only geographic diversity but also an optimal level of skill sets on the regulator’s board.

That was one of the things that pointed to changes in the board structure. I know that the CBABC submissions to our intentions paper mentioned that a small, more agile board composition was needed to be consistent with effective and modern regulatory operations and that it should comprise a mix of appointed and elected members.

That was in the CBABC submission, the one that I just quoted. In the Law Society’s submission, when it came to the intentions paper, it was the view of the Law Society there that the self-regulation of legal professions requires that a majority of the board that governs lawyers be themselves lawyers and that the majority of lawyer directors be elected.

There was a lot of input that we received, particularly on the governance model and, of course, the notaries and the paralegals. Once you move to a single-regulator model — it was generally accepted by all professions that we would move to a single-regulator model — then the governance had to reflect the composition of all the legal professionals that would be represented in that self-regulator.

M. de Jong: There’s lots in that answer. I’ll try to break it down a little bit.

The Attorney has referred to aspects of a report that spoke to the representative nature of the present regulatory body, the benchers — and, I think, was intending to convey that the present regulator is not as representative of either the profession or the society; I’m not certain which.

The question is…. I suppose one could imply from what we have before us that the government and the Attorney General accept that as fact, but I think that on a shift as significant as this, it is worthwhile to ask directly whether the Attorney General agrees with that.

Does the Attorney General and the government today believe that the existing regulator, the benchers, are not sufficiently representative of either the profession or the society?

[3:00 p.m.]

Hon. N. Sharma: Of course, diversity and representation on the board are important, especially when moving to a single-regulator model. Now we need to make sure that legal professions that are under the single-regulator model are also represented in the new structure. That would be a shift from the current one.

I think that we have to acknowledge that the Law Society and the benchers have made strides in terms of representation. Certainly, when I look at the benchers today, it’s not the same group of benchers that I remember when I was a young lawyer and first starting out. I acknowledge those strides in terms of representation.

We think that the bill strikes a balance between maintaining diversity, giving new tools to ensure representation, and making sure we can continue to move forward on that.

[3:05 p.m.]

S. Furstenau: I’m glad to get up and have a moment to speak to the bill.

Noting the comments just now of the Attorney General about striking a balance, trying to create this diversity and representation…. I know the debate has been proceeding for a few days now. There have been a lot of concerns brought forward by the legal professions, by the judiciary, by people who are concerned about the pace at which this legislation is moving forward and the lack of engagement, at this point, and the lack of evidence that the engagement that has happened has been taken into account.

I just want to point to one particular aspect of this that members of the legal community have been considering at length and for a long time — the way in which we need to modernize our legal system, how we can get there, how to improve access to the legal system, particularly when it comes to people who currently can’t afford that access. I know this is part of what’s in this bill, but it’s unfortunate to see a lack of really concrete ways for improving the funding that would go to access to judicial services for people who can’t currently afford it.

In 2019, the Law Society commissioned the futures task force to consider these questions. For example, there is currently no consideration of how to prepare legal services and the legal profession to be resilient in the face of catastrophic events such as what we’re seeing in the northeast of this province right now or another pandemic or a natural disaster. This was one of the recommendations of the futures report. The futures task force was clear-eyed about the challenges facing the profession and that there be more done to ensure that all people have access to justice.

It’s disappointing that this government has moved forward with this legislation, which has raised a lot of red flags. It hasn’t created a sense that the engagement has been meaningful. There is a growing number of voices who are concerned about the implications of the changes proposed in this legislation. We get a bill, four weeks before the end of the final session of this electoral period, which isn’t particularly aligned with earlier indications of what the legislation would bring in and has raised these flags.

My question to the Attorney General. Why was this path, which was not aligned with the futures task force report, taken? How does the Attorney General propose to move forward with the goals set out in the futures task force report?

Hon. N. Sharma: I’m going to start in response to access to justice.

We’ve done a lot of work, as a ministry, using all the tools that we can to improve access to justice in the province, and that includes increased funding to legal aid. I’ve had a chance during this debate to speak pretty specifically about the government’s efforts on many fronts to increase access to justice.

[3:10 p.m.]

This bill gives the regulator the tools to expand legal professionals in this province so we can have registered paralegals and notaries providing legal services in scopes of practice across this province that will be less expensive than lawyers.

I want to say also — just to correct, I think — a little bit about who’s in favour and who’s not. I often hear that lawyers are against it. I have a long list of lawyers that are part of this and that are very supportive of the work that’s in this bill, including past presidents of the Law Society; including lawyers that are academics and are part of the faculty of law; lawyers like Jamie MacLaren, who is executive director of Access Pro Bono, which specifically provides low-cost legal services to people.

This is one of the tools that we have, as a government, to expand not only options but also access to justice in the province.

I want to say, also, that the futures report that the member mentions was taken into account, along with many others. In fact, in the CBA submission that they gave us on this, they noted that: “On the matter of regulation of lawyers, notaries and paralegals as an issue, this has been discussed at least over the past three decades.”

The submission goes on to list all of the reports that have talked about the future of legal services, how you can expand legal aid service delivery, submissions the Law Society provided, including the futures report, all the way back to 2012, when the then Attorney General wrote a letter to the Law Society and the notary society talking about an amalgamation under a single regulator. So this project has been decades in the making and has included many, many submissions and discussions, including from key components of the Law Society and the CBA, which talked about a new model of self-regulation.

We think we’ve landed on a way that takes into account everybody’s perspectives — the notaries, the B.C. para­legals, the Law Society’s submissions — and balances them in the public interest. My job as Attorney General is to represent and bring forward the public interest when making decisions, and we’ve balanced that in this bill.

S. Furstenau: I have one specific example around access to justice that I’d be interested in the Attorney General to contemplate. I’ve raised this before, I think with the previous Attorney General specifically. It’s an example of what I think is a pretty significant imbalance in terms of access to justice.

For families who are dealing with Ministry of Children and Families cases, often those families do not have the funds to pay for their own legal representation, so they use legal aid. Often the legal aid lawyers have many, many cases that they are managing, so they allot a very limited amount of time to each family. These are examples from families we have helped with in our constituency office.

On one side, you have a family — often Indigenous, often in poverty — trying to make the case that is probably the most distressing experience of their lives, the case to be able to keep their own children out of a system that is failing to protect children from the outcomes we see from MCFD. That’s one side. On the other side, we have government lawyers representing MCFD, who are on salary, who are earning significantly more than the lawyers who are representing the families.

So right in the structure of how these cases come before the courts, there is a deep imbalance in terms of the access to justice for the families who are trying desperately to be able to continue to keep their children in their homes.

[3:15 p.m.]

One proposal that our office brought forward and put up for discussion was to have government lawyers on both sides of this equation so that then there’s a balance, and the families get the same level of representation, the same funding going into representing them, as the MCFD staff get on their side.

There’s an access-to-justice imbalance that currently exists. The outcomes from this are deeply significant for the parents and families that are facing these conditions, that kind of ingrained imbalance that people face when they are facing off with government lawyers and forcing themselves to rely on legal aid in cases of MCFD files.

[3:20 p.m.]

Hon. N. Sharma: I want to thank the member for the question. It’s something I think about a lot, in terms of access to justice and power imbalances in our system.

I have a few answers for her, but I’ll start with the tools of the bill. What we know is that if you can have different licensing regimes for different levels of legal professionals — if you expand that out — you can actually use resources differently.

What I mean by that is that if a paralegal is able to do some part of the work under some scope of practice, however that’s determined, that’s related to that scope of practice, then that’s a way for you to use your legal services or your budget in a more effective way. There’s an aspect of diversifying legal professionals as a province that does get at cost and access to justice for people. That’s one of the tools.

Another, I think, very interesting tool in this that the self-regulator will have to grapple with as this expands…. When you think about situating a regulator, which this bill does, with the independence of legal professionals, the public interest and access to justice, that’s something it’s measured by. It’s a tool in this bill to have the self-regulator measure itself against how it’s promoting access to justice with the tools that it has.

Part of that is a new tool, which is specialized licensing, or licensing that could be very specific to a certain thing. You could theoretically think of a specially licensed legal professional that is to do with MCFD cases or can play a role that’s specialized in certain cases. You could see that developing as an access-to-justice thing.

There are a few other ways that I think we’re tackling this issue. One is with Indigenous justice centres. That is a funded program where there are lawyers that are staffed there to focus directly on providing free legal services for people that are dealing with various issues, including MCFD and child protection issues. Those are Indigenous lawyers that are there to provide those services.

Another is the influx of $29 million that is going to the family law legal aid system that we announced recently through a settlement. That’s particularly for people that need family law legal aid. We estimate that 4,500 more people will get access to a lawyer through that.

M. de Jong: I want to come back to this matter that we were discussing a moment ago, before our colleague, the leader of the Green Party posed a few questions.

Before I do, though, I wonder if I could put this question to the Attorney General. Depending on the answer, I may be critical, but I am merely, at this stage, seeking information that might help to guide the conversation and discussion going forward.

We are on section one of a 300-section bill. The Attorney would say: “Well, you in the opposition decide what section we’re on.” I’ve watched the exchange. I think, to her credit, she has endeavoured to answer the questions honestly and fulsomely. It has been a good conversation.

That said, we are on section one of a 300-section bill. Today, a few moments ago, the government introduced two more bills that, it’s my understanding, the government is going to seek to have passed, which is going to necessitate breaking into this discussion and debating those bills in this chamber. There are 2½ days of session left.

Can the Attorney confirm at this stage, given what has just taken place: is it her and the government’s intention to have this bill voted upon through third reading in this session?

[3:25 p.m.]

Hon. N. Sharma: I’ll just say that I’m frustrated by the pace at which this is going. I find myself repeating answers I’ve given. We have been at clause 1 for seven hours in the debate so far in the committee stage, and I am very eager to get to a clause-by-clause analysis of this bill, because a lot of my answers are better answered through looking at the different sections, as I think I mentioned last week when we were at this debate.

It’s my hope that we can get through everything in a way that we can explain to the public and to get the opposition to have a chance, to answer questions. I’m hopeful we’ll move on to section by section.

M. de Jong: Believe me, I am certain that there are times when the Attorney is frustrated, and she can be assured that there are times when members of the opposition are frustrated. We are at that stage, however, where…. There are always a finite number of hours in a legislative session, particularly when we have a calendar, as I think we still do.

Managing that time, which the opposition does have a role to play in, requires that we know with some certainty what the government’s and the Attorney’s intentions are. For better or for worse, we are on section 1 of a 300-page bill.

I asked the question politely a moment ago. I always try to be polite. I guess the more direct question is: notwithstanding where we are in this discussion, come Thursday, is it the government’s and the Attorney’s intention to impose closure on this debate?

Hon. N. Sharma: I’m hoping to make progress. I’m making myself available to do that, certainly past clause 1, in the hours that we’ve been debating. I’ll be speaking to the House Leader regularly about allocating time for that.

M. de Jong: I think the Attorney came perilously close to answering my question when, at the conclusion of her answer, she said she would be speaking to the House Leader about allocating time — her words. I hear “time allocation” when I hear the phrase “allocating time.”

Look, I hope the Attorney realizes that this is relevant for an opposition, any opposition, in determining how to conduct itself going forward. If there is to be time allocation, the sooner the opposition is informed of that, if there is to be the guillotine, if there is to be closure, the sooner the government informs the House and the committee of that, the better for everyone. I don’t think anything is achieved by the Attorney saying: “Well, we’ll see how it goes.”

Something as important as this, a rewrite of a regulatory scheme that has been in place for over a century and a half, I think — I hope we all agree — deserves scrutiny. If there’s a guillotine in the future in the next two days — a relevant question throughout, but made even more relevant by the government’s decision, in the last three days of the session, to introduce more legislation that it says it wants to pass — how the opposition allocates our time is influenced by that and by the knowledge of what the government’s intentions are with respect to this bill.

[3:30 p.m.]

Hon. N. Sharma: I know that the member opposite was House Leader at that point and understands how these things work. It’s not up to me as minister. But I do have to say that I really hope that we can get through, certainly, more than clause 1 in seven hours of this bill. In order to assist in the debate, I know that my team has provided the opposition with a concordance summary.

[S. Chandra Herbert in the chair.]

That is a summary that outlines, exactly, specifically where the differences are between the current Legal Professions Act and the bill before us, so we could start to focus on the content and the sections and move through this in a way that helps to answer questions but also focuses in on the changes that are being made.

M. de Jong: Yes, need I be reminded of those 12 glorious years as a Government House Leader. It’s at times a thankless job, and I think the Attorney appreciates what I’m saying.

Look, I’m not trying to be troublesome or trick anyone here. Is the Attorney….? Again, triggered by the introduction of more legislation that we certainly weren’t anticipating, is she likely to be in a position today to advise the committee whether the government intends to invoke some form of time allocation or closure on the discussion around the provisions of Bill 21?

Hon. N. Sharma: My intention is to explain this bill and to answer the opposition’s questions to the sections of the bill. It’s why I’m here.

I’m sure that our House Leader will be communicating with the opposition’s House Leader, as I know they do regularly, on how things will be scheduled in this House. I’ll make myself available as many hours as I can.

M. de Jong: Well, I’ll put one more remark on the record. Appropriately, the Attorney General is the person who speaks for the government with respect to this bill. Whilst the Government House Leader has other responsibilities relating to the management of House business, the Government House Leader isn’t available to answer these questions in these proceedings. The Attorney is, and I thought the question was a fair one. I’ll ask it one more time.

Is the Attorney prepared today to consult with her House Leader and come back to the committee later today to explain and to state authoritatively whether or not the government intends to impose closure or time allocation on these proceedings? It will influence the nature of the proceedings. That’s why I asked the question.

Hon. N. Sharma: Again, I would like to focus on the sections of this bill and the discussion that we can have about the content of the bill before us. I will endeavour to make myself available for the time that it takes.

M. de Jong: Well, look, I’ll move on and ask a question. But I will make this observation, because the Attorney reminded me of the time I spent as House Leader, and I think the record will show that there were times when governments that I was a part of imposed closure. In every instance, it was made clear weeks in advance whether there was any prospect of a bill being subject to that procedural manoeuvre.

[3:35 p.m.]

The Attorney can avoid the question and say: “I don’t want to talk about it. It’s not relevant.” It’s such a crucial and important piece of legislation, dealing with the regulation of our legal professions, that I would have thought that she would be sensitive to any allegations of procedural shenanigans or manipulation. The refusal to answer a straight-up question about whether or not there’s going to be closure come Thursday strikes me as just that: an attempt to be secretive and manipulative. If that’s the approach, I guess that’s the approach.

Before our colleague from the Green Party asked some questions, the Attorney, in response to a question of mine, made this statement. I think it’s accurate. I won’t read it as a quote. When I asked her about the general notion of representation amongst the benchers and the Law Society, she said that she wanted to acknowledge that strides have been made by the Law Society to create a more representative body. So that’s helpful.

Where have they fallen short?

Hon. N. Sharma: Of course, I take the Chair’s guidance, but some of these answers that I’ve been answering over the last few days are better answered when we get to the clause, because the clauses that deal with governance will help me explain how it shows up in the bill.

I will say that the Law Society has acknowledged that there have been gains in recent years with respect to the number of Indigenous benchers and with respect to gender diversity. The Law Society has acknowledged the following groups as being underrepresented among elective directors: racialized lawyers, LGBTQ2+ lawyers, lawyers with disabilities and young lawyers and solicitors.

M. de Jong: I understand the Attorney has said there will be an opportunity for her to expand upon some of those particular issues. But let me ask now in a general way.

She has pointed to commentary by others, by the Law Society itself. What I hear from the Attorney is, in part: “These changes are being made to address shortcomings in representation on the Law Society, on the benchers, and this is our legislative attempt to address that. And I, as Attorney General and the government, accept entirely those arguments around the lack of appropriate represen­tation.”

Have I got that correct?

Hon. N. Sharma: Chair, I believe I’ve answered this, and if it could be tied to something specific in clause 1, that would be helpful for me in answering.

I will say that we’ve talked at length over the last, I think, maybe more than seven hours of debate on the purposes and the goals and the intent and what reports we relied on to make the changes.

The Chair: Thank you, Attorney.

Yes. We’ve covered some of this already, so certainly it is helpful if members can review what we’ve already covered so we’re not asking repetitive questions. The Chair would appreciate that.

[3:40 p.m.]

M. de Jong: In clause 1, there are two terms. One is “discipline committee,” and the second is “discipline hearing.” They appear one after the other. They are defined terms and, of course, they emerge and present later in the legislation.

Let me ask in a general way, as part of our conversation around clause 1: what, if any, concerns does the Attorney have with the existing disciplinary procedure within the Law Society of B.C.?

Hon. N. Sharma: The Law Society has set up a tribunal of more independence, just in practice. What this bill does is enshrine that more in legislation in terms of the operation of it. I’m happy to speak to it when we get to sections 89 and 90.

M. de Jong: From that answer, am I able to take that the Attorney has absolutely no concerns with respect to the existing disciplinary proceedings within the Law Society?

Hon. N. Sharma: The sections, once we get to 89 and 90, will really help me go through each of the ways that discipline and the discipline hearing and committee process will be undertaken in this act.

I didn’t hear any questions about the specific definitions that are listed here, but I will say that a lot of the changes that we will get to in sections 89 and 90 were taken from feedback at the Law Society about different tools they wanted or needed with respect to the discipline of lawyers and other legal professionals.

M. de Jong: Not to harp on this, but the Attorney’s reluctance to answer my procedural question means we are left uncertain as to whether we will ever get to section 90. That’s part of the problem, you see. I appreciate that the Attorney says, “Well, we’ll get to it,” but we don’t know that.

Having said that, my specific question was less about the change that is encompassed by this legislative package than it was about better understanding whether there are concerns, or any concerns, on the part of the Attorney about the present disciplinary process within the Law Society.

For example, were there aspects of that disciplinary process that the Attorney and the government were unhappy with that they’re looking to address with this legislation?

[3:45 p.m.]

Hon. N. Sharma: You know what? I think that there’s always…. The point of introducing a bill and modernizing legal professionals is to work on the changes that will help make processes better, with feedback from our partners, and that’s certainly what we did in the discipline process.

I mentioned already that one of the key things was to enshrine work the Law Society was already doing on independence and an independent disciplinary tribunal, which puts it in there. There are better tools I hope we will get to when we get to the section. I’m happy to talk through, when it comes to those repeated disciplinary actions by the same individual lawyer and better tools for that, and just to make sure that that whole system operates with the independence and no conflict of interest necessary, which I can get through in a clause-by-clause when we get there.

M. de Jong: Thanks to the Attorney. Helpful.

For the purpose of the conversation around the definition and the need for change, though, what I’m seeking to better understand from the Attorney is to what extent, if at all, she and the government felt there was a systemic issue.

Maybe I can ask the question a bit differently. I was part of a government that eliminated self-regulation for teachers. And candidly, one of the reasons was a real concern around whether or not disciplinary procedures were either in place to the degree that they should have been or being followed to the degree that they should have been.

Have there been…? Are there concerns relating to the existing and present disciplinary process for legal professionals? I’m asking now about lawyers. A similar question is applicable for notaries.

Hon. N. Sharma: The member asked if there were serious concerns that I have, and my answer to that would be no. We maintain self-regulation in this matter. When we get to the sections on discipline, we can talk about how the structures that we put in place would ensure there was no conflict of interest and that there was an independence that was associated with the disciplinary process, along with tools to better ensure, especially with frequent repeated infractions — better tools for the new regulatory body.

M. de Jong: The Attorney and the government apparently have decided that that disciplinary process needs to be enshrined, to a greater extent, legislatively than has been the case in the past. Why is that?

The Chair: I believe that is clause 89 the member is referring to. We are on clause 1, but of course if the Attorney wants to address that…. I just believe that’s the way the bill rolls out.

Hon. N. Sharma: The sections that appear later in the bill talk about enshrining a tribunal, which is an independent disciplinary body. I’m happy to go through that once we get to that section, but really, like everything, it’s about looking at what exists and making it better, which is part of what’s in this bill.

[3:50 p.m.]

M. de Jong: So two terms.

I don’t actually have the existing…. I may have it, but I don’t have it open, so I’ll ask the question. Legal Professions Act — do those definitions appear in the same way in the existing Legal Profession Act?

Hon. N. Sharma: It’s just a matter of drafting difference. Those two terms — disciplinary committee, disciplinary hearing — are not defined in the current Legal Profession Act but are defined in this bill. So can’t compare.

M. de Jong: I understand what the Attorney is saying. But the question, of course, is: what has provoked the decision to include and enshrine the definitions statutorily? Presumably, the Attorney and the government were convinced or satisfied that that was necessary, that there was a problem that arose because of the absence of the statutory definition earlier. I’m just probing what that problem was or is.

Hon. N. Sharma: I’m told that the way…. Really, there’s no problem that’s trying to be solved by defining these two terms directly in terms of a definition. It’s really just that the current LPA is under modern drafting requirements or guidelines. Under those modern drafting guidelines, these are clarifying terms — discipline committee, discipline hearing — that help to clarify the use of them in the bill.

M. de Jong: This might be a theme that we come back to. I take it these were terms left to, in the case of lawyers, the Law Society to define in the Law Society rules. Is that correct?

Hon. N. Sharma: Just note that the two definitions that the member is talking about are pretty benign in their content. It just is a referential definition that defines, basically, what’s under section 8 or section 90. I’m told by the drafters that this is just modern drafting practice. Whereas these terms were used before, in the current Legal Profession Act, the modern drafting guidelines now would require that there just be a definition that’s referential and largely benign, but just for clarity.

M. de Jong: One of the points that the Attorney has made repeatedly during the course of the exchange over the last couple of days is the importance of protecting the public interest. I don’t think anyone in the committee has argued that objective and the importance of that objective.

[3:55 p.m.]

What I’m trying to do in focusing on the definitions included here is to ascertain whether or not, in a general way, the Attorney and the government believed that there were and are deficiencies in the existing disciplinary processes that require addressing in this legislation.

Hon. N. Sharma: Chair, I believe that was asked and answered — that specific question.

M. de Jong: Forgive me if…. I don’t question what the Attorney said. I must have missed the answer. Could she re-enlighten me?

Hon. N. Sharma: The member asked me pretty directly if I had any serious concerns about the process. I answered no, and then I went on to talk about what’s enshrined in section 89, which I hope to get to, about independence, better tools for repeat violations and things like that.

M. de Jong: A couple of more general questions. I can advise the Attorney and the committee that, just before four o’clock, my colleague from Kamloops will have some questions while I duck out, momentarily, for some other responsibilities and duties.

The Attorney had an exchange with the official opposition critic, from Vancouver-Langara, that touched on the role of the Attorney General within our existing legal professions regulatory structure and how, if at all, it will change under the regime proposed in Bill 21. Can I pursue that, for just a moment, by asking the Attorney to summarize in her own words what she sees as the role of the Attorney General, any Attorney General, vis-à-vis the public?

Hon. N. Sharma: Chair, I take your guidance on how this applies to any of the definitions in section 1. I have answered this question quite directly from a previous member about the role of the Attorney General and how I see this addressing the public interest.

The Chair: Yes. I think this question was asked by the member for Vancouver-Langara more than a few times in a couple of ways. But if we could draw it back to clause 1, I’d appreciate it.

M. de Jong: Can the Attorney differentiate for me how that responsibility vis-à-vis the public differs or is complementary to the responsibility/authority she has with respect to legal practitioners?

Hon. N. Sharma: Chair, I seek your guidance again. I don’t think the Attorney General Act is before the Legislature here for debate that sets out my roles.

[4:00 p.m.]

I talked about how I feel like this…. I’m certain that this bill is in the public interest and that we balanced the interests of legal professionals throughout the province.

The Chair: Of course, we would hope that all questions are relevant to Bill 21.

We are on clause 1, and so questions relevant to clause 1 and the bill are relevant, of course, ideally under the clauses that are appropriate. So we’re here on clause 1.

P. Milobar: I’ll just be following up from my colleague there for a little while.

I can understand government’s frustration, sometimes, on the questions from opposition. But I can assure the Chair and the minister that this comes after lots of discussion with people in the legal professions, in terms of their concerns around the bill; trying to guess what clause we may land on, or not, and end on; and trying to figure out…. At a minimum, some clarity around definitions is important.

Again, we heard the same frustration on Bill 25 at the end of last week, with the minister saying how many hours they’ve been on a bill. These are important pieces of legislation that are going to have impact for a long time. It’s important that not just the legal profession but the people that access legal professions understand what exactly is happening, in this case, in Bill 21.

Although it may be frustrating to a minister, last I checked we’re here till Thursday. If the government wants this bill passed, it will pass. If they want it to be with closure, it will be with closure. The minister and the Chairs may get frustrated, but this is actually the work that we’re here to do.

It’s the one time opposition can decide what they feel is of importance within a bill and just try to highlight it. It may not line up with the government’s view of what they feel is important within a bill, but it certainly shouldn’t be diminished, in my opinion, by the government, by any means, in terms of opposition trying to actually do their bill.

All that said, the minister will probably be thrilled to find out that what I’m about to say next is that I really don’t have questions until clause 3. We can move forward to clause 3, if the Chair is willing.

Clauses 1 and 2 approved.

On clause 3.

P. Milobar: As we rocket along to clause 317 or what­ever it is of this bill, clause 3 says: “The following professions are designated as legal professions for the purposes of this Act: (a) the profession of lawyer; (b) the profession of notary public; (c) the profession of regulated paralegal; (d) a profession designated by regulation.”

Would the minister outline for the House and, more importantly, for the broader public what other legal professions are being considered to be designated by regulation?

Hon. N. Sharma: I thank the member for the question on clause 3.

It’s one of the benefits that we see, strongly, of this bill, which is to give the government and the regulator new flexibility when it comes to conceiving of legal professions. I don’t have examples right now, except for one that I think may emerge in the future.

[4:05 p.m.]

That would be legal tech, there being this influence of technology on the legal profession, like many other professions, and an understanding of how you can conceive of, in the future, the need for a legal tech professional that has a scope of practice or a regulated role in legal professionals within the province.

What this does…. It doesn’t set it out, but it gives, under this section, the flexibility of that in the future without having to go through legislative changes or amendments to do that. It would be up to the regulator as it rolls out in a conversation with government about how that would be. It wouldn’t impact the board structure — that would require legislative change — but it would give the tools to provide that.

P. Milobar: Well, in fact, it doesn’t appear that it would give the regulator the authority to do that. It would give cabinet — the minister, by way of order-in-council — the ability to do that. Is that correct?

Hon. N. Sharma: It’s important to remember the starting point of this. Right now, if there’s a new legal profession that’s created in the province, it’s by legislation. You think about the Notaries Act. That’s how it was done before. That is actually, I would argue, a slower mechanism to be able to change and to expand or to include new legal professionals in the province. It’s taken a long time for any of those changes to be made.

Rather than requiring the legislators to come and draft a piece of legislation like the Notaries Act that says, “Here’s a new legal profession in the province, and here’s their scope of practice,” it’s done by regulation. It’s set out in the sections that we’re getting to where the government must consult with the regulator. How we see this showing up in practice is the regulator bringing a proposal or something through their work to government and working with government.

There’s a requirement to consult, have it be more integrated or, I guess, set out a collaborative process to have a regulation to add a legal professional.

P. Milobar: Thank you. That didn’t actually answer the question, though. The question was…. The minister says this gives the regulator more flexibility, but in actual fact, this gives cabinet, gives order-in-council, the executive branch of government, more flexibility in the ability to pick and choose when they want to add a legal profession by way of definition of what is a legal profession.

Is that not the case?

Hon. N. Sharma: Well, just to start with…. The regulator right now, or the self-regulator, in the province doesn’t have any role in setting out a new legal profession. Government could come and establish, like with the Notaries Act, through legislation a legal profession in the province.

What this does is actually create a role between the self-regulator under the Legal Professions Act and government to work together with government through making the regulation.

P. Milobar: Again, I get that it gives government the ability to talk to the regulator and work with the regulator. But they don’t have to. It strikes me that 3(d) is giving the executive branch of government the authority to designate a legal profession by regulation, which, in effect, is giving cabinet the ability to determine who can practice law, regardless of qualification, regardless of what the board determines is in the public interest.

Is that not correct, that cabinet has the ultimate say as it relates to 3(d)?

[4:10 p.m.]

Hon. N. Sharma: Section 4 sets out the process that requires government to consult, which, again, is new from the current one, in which government could just create a piece of legislation with the scope of practice. It also gives a role of the regulator to add to the scope of practice that’s set up by the new legal profession through their rules, the new legal professional that may arise, and also through the self-regulator to set up the competency criteria for that new legal profession.

The Chair: On clause 3, Member.

P. Milobar: I’m trying to be on clause 3. The minister has pushed back and been frustrated about the length of time of trying to get through this bill. I’ve asked a very straightforward question on 3(d) three times now, 15 minutes, going on 20 minutes, and the minister refuses to answer it.

It’s simply: does 3(d) not give…? I get the regulator. We’ll get to that in 4. But 3(d) creates the structure that gives the power of the executive branch of government, the cabinet, the authority to designate a legal profession by regulation, which, in effect, gives cabinet the ability to determine who can practice law, regardless of qualification and regardless of what the board determines in the public interest.

I get that we’ll have questions in clause 4, but 3(d) is about a profession designated by regulation. Unless someone else can set a regulation for government other than cabinet that I’m not aware of…. The minister could shed light on that. But I don’t understand why the government just won’t give a straightforward answer that, indeed, a regulation can only be set by cabinet, as it’s worded in 3(d).

Hon. N. Sharma: I’ll answer in a smaller number of words, because I believe I have answered.

Yes, it gives the government the power through regulation, which now would be legislation. It switches that to regulation, which we think is more flexible.

P. Milobar: Regulation is definitely more flexible. Does regulation get the same public scrutiny before it becomes law and is enacted as an order-in-council, as a piece of legislative change, which would result in this type of back-and-forth and discussion in the broader community and a timeline and being able to actually consult with others before it gets enacted?

Hon. N. Sharma: Section 4 of the bill, which I think we’re going to come to next, sets out the constraints on the exercise of that ability to enact a regulation, and that sets out the process that the government needs to be guided by, including consultation with the self-regulator before making that regulation.

P. Milobar: I thank the Attorney for that again.

Again, I’m not in 4 though. We’ve been asked to try to stick to the clauses. That’s what I’m trying to stick to. The Attorney’s answer on 3(d) was that it gives more flexibility by allowing cabinet the ability to use regulation instead of legislation to designate who a new subclass would be as a designated legal profession.

[4:15 p.m.]

Right now it’s only lawyers and notaries public and the profession of a regulated paralegal. So 3(d) will give the government more flexibility and be easier to enact.

Does 3(d) not make it so that on a Friday afternoon, by order-in-council, regardless of what consultation has or hasn’t happened or what people may or may not want to see happen, if cabinet wants to see something happen, a new designated legal profession can be created with a signature on an OIC, versus the process we’re going under right now? That would be a legislative change to actually now insert something as significant as designating what would be considered as a new legal profession within British Columbia.

Hon. N. Sharma: I know the member is saying that I’m not, but I am actually trying to answer the question under 3. But I can’t do that without reference to section 4, because section 3 sets out what’s designated a legal profession, including, to what the member asked, a profession designated by regulation. Section 4 is tied to that section, which sets out the constraints that government has to exercise when enacting that regulation. They actually work together.

As I’m attempting to answer the member’s question, I need to refer to clause 4 to do that, because it sets out the requirement to consult and the steps that must be taken in the decision-making of that regulation. That’s transparent because it’s listed in the bill itself.

Clause 3 approved.

On clause 4.

P. Milobar: Well, I’ll ask again, 4(1): “For the purposes of section 3 (d), the Lieutenant Governor in Council may, on the recommendation of the Attorney General, make regulations designating a profession as a legal profession.”

Again, the minister said this gives more flexibility. I’m asking a basic procedural question, more so for the understanding of the public that are watching, on the difference between cabinet having the ability to sign an order-in-council and release it on a Friday afternoon, maybe even without a press release, that we now have a new designation of who qualifies as a legal profession in B.C….

I get it’s more flexible for the government, but I’m trying to understand the reasoning why that is more critical than having it go through a legislative change like we are doing right now.

Why did the government feel…? If it’s taken this long to change this act in the first place and it’s already been met with so much resistance and the minister can’t say what a new legal profession would even be, except for possibly maybe in the future a legal tech, why did the government feel it necessary to give themselves the ability to sign an order-in-council to insert something as significant as a new profession that would be designated as a legal profession, versus needing to go through a legislative change and provide that level of scrutiny and understanding as to the significance and need for that change to happen?

Hon. N. Sharma: I’m going to take a step back and explain how the government and regulatory bodies, including under the current LPA, work.

[4:20 p.m.]

Although government could pass legislation, in order to practise in that…. Setting out a scope of practice in order to practise, the self-regulator would need to set up scope-of-practice competencies for that to happen.

What you have is a situation where…. Under the single regulator, you have this process of a potential of new licensing and new categories of licensing and the government needing to work with the self-regulator in order to do that. Both have to work together. Not only could government, yes, by regulation, pass a regulation that sets out that scope of practice; the single regulator would have to set up the competencies and the skills in order for that profession to practise. Both have to work together.

I think what the issue has been in the past is this lack of flexibility in our ability to adapt as legal professions.

Now, I think and I hear from lawyers that there is a huge potential for changes in business models and practices in this province, if you can think of an ability — and it goes in the bill about different business models that are possible — for there to be an expansion of legal professions and the self-regulator and the government working together to do that.

Yes, a regulation is more flexible. It’s done in a different way, as the member pointed out, as legislation. Section 4 sets out what the Attorney General, whoever it is at the time, must do in order to enact that regulation. Then I mentioned that the self-regulator and the government have to work together anyway. That regulator will, then, be tasked to set out the competencies and the standards for that in order for that new legal professional to be able to practise.

P. Milobar: Well, 4(2) says:

“Before making a recommendation under subsection (1), the Attorney General must (a) consult the board, and (b) consider all of the following: (i) whether the designation is likely to facilitate access to legal services in British Columbia without posing a significant risk of harm to the public; (ii) whether the activities performed in the practice of the profession are similar to, or overlap with, those performed in the practice of law; (iii) whether failing to designate the profession would undermine the regulator’s ability to regulate the practice of law in British Columbia; (iv) whether the practice of the profession is regulated in other jurisdictions; (v) whether the designation would have an undue impact on the independence of licensees under this Act.”

Now, the minister is correct that, under this, the minister or the Attorney must consult. It doesn’t say the minister or the Attorney must enact based on what has been provided to them for information. In other words, if the government decides that a profession shall be designated as a legal profession…. There’s nothing in 4 that says, if the regulator or others consulted don’t agree with that, the government has to listen to that advice.

In other words, the government, the cabinet, would still have the ability, despite whatever advice or consultation was provided to them, to designate a new legal profession, a new profession as a legal profession, regardless of that. Is that not correct?

Hon. N. Sharma: Just to go back to what the member read out under section 2(b), from my perspective, whoever the Attorney General is considering that at the time….

These are excellent considerations for somebody that’s focused on access to justice interests of the public, which are laid out pretty clearly in terms of not only protection of the public but how it could be set up and, actually, the independence. That is something that’s very important, and it’s actually listed in there, the independence of licensees. These were very well-thought-out factors to be considered that will be important.

[4:25 p.m.]

In reality, the way self-regulation works…. The government needs to work with the regulator in order to set up the eligibility criteria for that scope of practice. As I mentioned when I answered the question before, that has to happen together. Government can set up a regulation that sets out a scope of practice for a new legal profession, and then the self-regulator will set out the eligibility requirements for that person in order to practise in the province.

Although it sets up a structure for more flexibility in practice…. It would be something that the parties would work together on. I think it’s actually a pretty exciting development.

I know the Law Society has done really interesting things through the innovation sandbox to understand what’s possible for the future of legal professionals and lawyers in the province. If we have that ability to be flexible and to add another legal professional and license them for a scope of practice, I think it’s only going to further the interests of all parties.

P. Milobar: I respect that the minister feels these would be great things and logical things to take under consideration for any Attorney General. But the question was…. There’s nothing there that actually binds the Attorney General or the cabinet to actually have to follow whatever the outcome is.

In other words, the Attorney of the day feels legal techs should be deemed to be a profession. They consult. They talk with…. They facilitate other discussions. They get advice saying whether failing to designate the profession would undermine the regulator’s ability to regulate the practice of law in British Columbia. All of the advice they get is contrary to the Attorney’s and the cabinet’s opinion that legal techs should be part of the profession.

Does cabinet not have the ability to override and, basically, ignore all of that advice and input and consultation and still forge ahead and make the designation?

Hon. N. Sharma: I would just say that what the member has articulated is a common practice with government. It’s a basic principle of democracy that you can’t bind future governments or democratic institutions in legislation.

Although consultation is required and we’ve set out the things they have to look at, there’s no ability to say “the minister” and bind them in a way that the member suggests, because that’s not how legislation or democracies work.

P. Milobar: Well, I’m not suggesting a cabinet should be bound. I was simply trying to get an affirmative answer. In fact, nothing in this prevents cabinet from regulatorily making the designation of who is a legal profession, regardless of what outside voices might be telling the government of the day and the Attorney General of the day.

This legislation is designed or intended to last a long time. I would assume the government is hoping. That means it will see many Attorney Generals have to shepherd it through. That means there will be many other professions likely knocking on the door of government and saying: “Well, it’s just a regulatory change. We want to be included as a legal profession.” When that standard of being included becomes much easier, the lobbying from other professions gets started.

It is important to ask these questions. Last I checked…. It’s not like this bill has been heralded unanimously out there by lawyers and the legal profession as something they wanted to see. Yet government is pressing ahead regardless. And that’s with legislation, not just regulation.

I get that you wouldn’t normally bind the hands of government. The way to not bind the hands of a future government is to make things by way of regulation as opposed to by way of legislation.

[4:30 p.m.]

Again, knowing that there was push-back from the legal community, knowing that there were concerns about this new structure, knowing on the heels of what we’ve seen under a few years now with the reshaping of how engineers are dealt with in B.C., Bill 36, with the health care professionals and the concerns there, why was the government so insistent in 3 and 4 to give cabinet the ability to, essentially, designate a legal profession of their choosing, instead of going through this process to update and amend a piece of legislation?

Heck, it could have been buried in a miscellaneous statutes housekeeping bill, as this government has done with other fairly significant pieces from time to time. And all governments tend to do that; I’m not trying to make that a partisan comment. That’s the way politics works, and it’s opposition that needs to read those misc stat bills and find out if there’s something of consequence in it or not. I get that.

[J. Tegart in the chair.]

There are lots of ways this could be amended, moving forward. Why did the government choose — on the backdrop of everything else that’s been going on with this bill, the concern about whether we’ll have enough time to even debate it or not, as an example, because of what we’re hearing outside of these walls — to give them the maximum flexibility and ability with the least amount of problems to create, essentially designate, new legal professions in B.C., instead of just sticking to the profession of lawyer, the profession of notary public and the profession of a regulated paralegal — given, especially, if the Attorney General can’t say that there’s a definitive list?

I could almost understand this if there was a definitive list of two or three other professions that were in active talks with government right now and they just weren’t ready to go by the time this legislation came forward. But that didn’t seem to be the case when I asked that question on the front end.

Why is the government insistent on giving themselves so much flexibility on this when you have 14,000 lawyers nervous about the implications of this and what it may or may not do to their practice?

Hon. N. Sharma: I’ll start by saying that the legal marketplace is changing. The legal profession is changing. I think it’s something that the Law Society, the CBA and many members of different jurisdictions around the world have been grappling with, what those changes mean. What clearly has come through is a need for a modern regulator that oversees legal professions.

I’ll note that right now, any version of a government would have the power to legislate and set up a separate regulatory body for that — let’s say if it was a legal tech professional; by legislation, it set up a legal tech professional self-regulator, as happened with the notaries. But that is cumbersome. It’s inflexible. It doesn’t respond to the changing marketplace.

What this does is, instead, give flexibility. It’s a tool for both the regulator and government. Because we anticipate that what will happen in the course of this is that the self-regulating body will identify the need according to the principles set out of how they’re meant to do their work in the public interest, access to justice, seeking underrepresented people, protecting the independence of professions. All the things that we set out in the bill. They will identify the potential for another legal professional and come to government for that.

This is a tool for both parties to be able to be flexible. We think it’s important in how fast things are changing in our society. And the need for access to justice for six out of ten British Columbians that don’t actually go to a lawyer. They look for legal services, and they’re in need of legal services, but don’t do that. So actually, these are things that we think are very important to modernize the legal professionals in the province.

P. Milobar: While the government was giving itself this power within this bill, between 3 and 4, to, just by way of regulation, deem who would be considered a legal profession, did they consider at all that by making this easier, it actually opens the door to more confusion by the public, ultimately, moving forward?

As you add a fourth or fifth designated legal profession…. I get that this Attorney’s intention would be to have great and wonderful, wide-open public consultation and everything else. Nothing says you have to….

[4:35 p.m.]

There’s no prescriptive way you have to consult. It just says: “Consult.” Governments do that differently all the time on that topic. I can think to the Land Act. The government consultation portal for the Land Act changes was buried in between “Click here to give your input on a reimagined Royal B.C. Museum,” and then there were the Land Act changes — “Click here to give us your comments and see what’s going on with the Land Act changes” — followed by public consultation on the B.C. Parks licence plate program.

So there are all sorts of ways governments consult. Some are a little more upfront and in people’s faces, and others a little bit more hidden and behind the scenes.

Some of the concerns we’ve been hearing, though, are that if there are more professions added — yes, I understand, to be clear to the Attorney, I’m not talking about the scope they may or may not have — the average person is going to hear: “Oh, there’s a new legal profession.”

Does the Attorney not see how that could create actually substandard access, in a way, if people think they’re accessing one form of legal services when in fact, by regulation, they’re going to be restricted on what that person can practise, but they think they’re actually getting the services of that full-package lawyer or even the services that a notary would normally provide?

Hon. N. Sharma: I’ll start by saying that we did public consultation on the bill that’s before the House right now, that we’re debating, and the what-we-heard report sets it out. By and large, the public was in favour of access to justice and different tools for us to do that. That’s why it’s guided by a big piece of this work.

The other thing that I would say is that the Law Society did an innovation sandbox, where they talked about the idea of limited licensing, the fact that you could license somebody for a limited area — the idea being, and I think this was in discussion, that that could, through that limited licensing by the self-regulator, lead to the development of a legal profession just through that trial of learning what’s working in that field or how the limited licensing is working. That would be the way that that could develop pretty naturally through self-regulation.

The other thing I would say is it’s up to the self-regulator to have set up practice standards. So if you are having regulated paralegals, for example, as is contemplated in this bill, you would have a practice standard — competencies that that regulated paralegal would have to do in order to be able to practise, like continual education, if that’s a part of it, and standards of ethics. Then there would be a disciplinary process that would be triggered if that person breached them, just like lawyers today.

P. Milobar: On 4, I don’t see anywhere where it’s required that cabinet consider whether designating a new profession would undermine the regulator’s ability to actually regulate the practice of law.

Failing to designate a profession is listed as a relevant consideration, but government seems to not see it as relevant as to whether designating a profession would affect the regulator’s duties and abilities. Why was that?

[4:40 p.m.]

Hon. N. Sharma: That section that the member is talking about — part 2, clause 3 — is to prevent a specific thing happening that has happened in other jurisdictions.

You could imagine a situation where there were a group of, I guess, professionals that were basically practising law or practising it in a way that should be regulated under the legal professions but isn’t. Failing to designate that profession undermines the regulator’s ability to regulate the practice of law in British Columbia. Having this group operate and provide services that you would determine as legal services, without being regulated, is hampering the regulator’s ability to do their work.

Then you could imagine a situation where the self-regulator says to government: “Hey, there’s a whole group of people that are doing this type of work” — let’s say, paralegals that aren’t registered — “and they’re providing legal services. We have no way to set standards of practice, to do the work of making sure the public is protected.” Then you would say government should regulate a scope of practice so that the self-regulator can set out what the competencies and abilities of that person to operate in that space are.

M. de Jong: Well, I depart for a bit, and we’ve launched ahead to section 3, I think.

Interjection.

M. de Jong: Four — 3 and 4. Let me further explore the theme that the Attorney has been canvassing with my Kamloops–North Thompson colleague. I’ll ask the general question first.

It strikes me that if we look at the construct here and the themes of statutory construction at play, a lot of what was formerly in the existing Law Society rules — things like non-practising versus practising lawyers and the classes of licence, all these things that heretofore have been in the Law Society rules — are being embedded in legislation. Ironically, with respect to section 4, some of the largest questions are being dealt with by regulation — in this case, the designation of an actual legal profession, as in the case of sub 4(1).

Obviously, the Attorney is comfortable with it, or she wouldn’t have sponsored the legislation. But shouldn’t big questions about whether something should be considered or designated a legal profession, versus more administrative matters, be dealt with by legislation, or is the Attorney telling the committee that these things might change far more quickly than they have in the past?

I mean, it’s not as if there has been a proliferation of new legal professions. Wouldn’t that logically be something that the Legislature itself would want to consider?

[4:45 p.m.]

Hon. N. Sharma: We had a chance to canvass this question with the previous member that was asking questions, and I’ll just repeat it. The legal marketplace is changing pretty rapidly, and the goal of having a single regulator is to have all legal professionals regulated under one body. With that comes the need to contemplate a new environment where you’re thinking about the future of what legal professionals could be and, potentially, another type of legal professional.

We had a chance to go through this in detail, before the member came back — with the Law Society’s innovation sandbox and the way they’re looking at limited licences and this potentially evolving into a new legal profession — about why we think that this interplay between the government and the regulator, as set out in 3 and 4, would have to set the competencies and the eligibility requirements for each new legal professional.

Working together, in the context of the new, changing legal marketplace, this model will provide for the flexibility that was needed in order to do that.

M. de Jong: I’m with the Attorney with respect to the advisability of the government, the regulator and the regulating body working together. What I didn’t really hear, though, was an explanation for why the legislative branch of government should be excluded, going forward, from that important consideration: the designation of a new legal profession. Surely there is still a role for the legislative branch of our government to play a role in determining whether that is advisable and appropriate.

Hon. N. Sharma: This was a decision that was led by the fact that it’s our view, and it’s been I think proven over the decade that even this project has been in the works…. The CBA and one of the reports mentioned it was three decades in the making, to think about a new model for legal professionals through legislation. Given that legislation can take that amount of time and given, like I mentioned, the legal marketplace and how it’s changing, we think this is an important tool in that development.

In practice, the way we expect it to show up is the self-regulator, through the course of their work and their principles that are adhered to in their work, has identified the need for setting standards for a new type of legal that’s practising or the potential of it and coming to government to figure out the regulation and scope of practice for that.

Of course, government is guided by the principles, set out in section 4, that lay out exactly, in a very transparent way, what will be considered before making a decision like that. It has those kinds of checks and balances built into it.

M. de Jong: Great, except the only check and balance missing is legislative oversight. If this legislation passes, all of those changes going forward happen, independently of any consideration by this body.

The Attorney can tell me if I’m going down the wrong path here. If the regulatory powers sought in this legislation and these provisions we’re dealing with now were existing today, much of what is in this bill wouldn’t have had to come before the House, unless I’m mistaken. The reconfiguration and the recognition of additional legal professions would happen separately and apart from any need to consult this assembly.

[4:50 p.m.]

Hon. N. Sharma: To answer the member’s questions, there is so much more in this bill about the modernizing of legal professional regulation in this province that is much bigger than these two particular provisions. Because of that content, it would be, of course, before the Legislature, as we are today, in contemplating all those changes.

M. de Jong: Well, I respectfully disagree with the Attorney General. Surely the recognition of a legal profession and all that that implies is huge? Huge for all sorts of reasons: protection of the public, competencies.

The Attorney sort of minimizes the significance of these provisions. Surely the recognition of whether an activity constitutes, or should be recognized as, a legal profession goes to the heart of regulating the provision of legal services in this province.

Hon. N. Sharma: I’m not sure I caught the question, so the member will correct me if I missed the question. But as I mentioned before, we think the right checks and balances are in place to not only have a system that’s more flexible through regulation but sets out, to the public, what the minister will consider when making a decision with respect to a new legal profession in that scope of practice. I laid out before about the ways that the regulator will have to work with government.

I’ll say that right now I think it would illustrate the issue that is in need of having a new regulatory body. It’s my understanding that under limited licences, under the innovation sandbox, the Law Society was issuing a no-action letter to people to test out new ideas in terms of limited licensing. But the issue with that — and one of the reasons that it’s built in later on in the bill, and one of the many things that this bill will do — is that it didn’t give them the tools then to regulate or discipline or set standards for that limited licence or practice.

There are ways that this bill expands the regulator’s ability to hold legal professionals in this province accountable to standards, even through limited licences that don’t exist today. With the conversation that the self-regulator will have with government if, through that limited licensing, the information that they’ve achieved through that is that there’s a need for a separate licence category of legal professionals, then that also will give them the ability to be able to set standards and protect the public in the operation of that legal professional’s duties.

M. de Jong: I don’t think I’m explaining my concern very effectively. I apologize for that. Let me try to go about this a slightly different way.

In the legislation before us, the government and the Attorney saw merit in identifying legal professions involving lawyers, notaries, a practising regulated para­legal, and saw merit in having this Legislative Assembly, the third branch — or second branch, whatever number you want to use — of government to be directly involved in validating that, going forward under this regime, this body would have no role to play in determining whether or not a group of professionals should be recognized as a legal profession.

I’m suggesting to the Attorney General that that is problematic, that something as fundamental as that deserves to have legislative oversight. I take it she disagrees. What I haven’t heard is why she disagrees with that.

[4:55 p.m.]

Hon. N. Sharma: I’ll endeavor to clarify.

Yes, we went with the regulation power and clause 3 or 4 in this bill for many reasons that I talked about, flexibility. In particular, I think, to the member’s point, the way we’ve ensured that the public has confidence in the decision-making that’s involved in this through regulation is through what the Attorney General must consider. This isn’t unlike many regulatory-making powers, where you set out what the Attorney General should consider so it’s in a transparent way, to the public, of what considerations have been made in deciding on that regulation.

We think that section (2)(b) covers very important aspects of the decision-making process. I expect that whoever’s making that decision, who is in my role in the future, will have had, and they must, consultation with the board, and this will be something that makes sense to British Columbians for access to public. But on top of that, it’ll be something that can change quicker than a legislative process. As we’ve seen over the last few decades, it took three decades to get to the single-regulator model.

Access to justice is a serious issue in the province. We think that having the flexibility with the transparency, and the clear factors that the minister must consider in making a decision, is striking that balance.

M. de Jong: I fear, to my mind at least, that the Attorney is conflating two issues. On the one hand, she points out or makes the argument that this bill is about far more than determining what constitutes designating a profession as a legal profession. On the other hand, she says, “Well, we need the flexibility to, by regulation, address that issue of what is a legal profession,” as if that has been the hangup over the last number of years.

I don’t think that’s the case. I think there has obviously been an issue that this Attorney and others before her have grappled with as it relates to the relationship between lawyers and notaries, scope of practice issues. The legislation, obviously, deals further in with the composition of the regulator in ways that have attracted a great deal of comment. But something as fundamental….

Well, let me ask the question this way. To be fair to the Attorney General, I did hear a part of this answer as I was re-entering the committee, so I do apologize for asking her to expand on this a little bit.

Let’s give the committee an example of how that rapidly changing landscape may give rise to the need for a recognition of an additional legal profession sooner rather than later.

[5:00 p.m.]

Hon. N. Sharma: I think this is going to be illustrated clearly in this example.

With the innovation sandbox, the Law Society, it’s my understanding, was thinking of limited licences for a legal tech company that was providing services for making wills for people. Now, if you can imagine, in a limited scope…. The ability of a regulator to set standards and protect the public in an instance like that is limited. Are they a lawyer? Are they a paralegal? Are they a notary? What is the category of services they’re providing, and how do I set standards?

Where I see one of the biggest potentials, and the reason it needs to be rapidly changing, is because the nature of technology is changing so much. I can see the Law Society or the legal professions, the single regulator just thinking about it. If there is a proliferation of legal tech companies that are out there providing legal services to people in a way that is providing a problem in the sense of…. How is the public interest protected? How is there a standard of conduct being provided to assure the public that the right checks and balances are in place for that person providing that legal service? How do we do that?

Well, then, the answer may be that, through using these mechanisms, three and four, we need the government to work with us on a regulation that sets out a scope of practice for legal tech platforms or tech companies that says that if you’re providing this legal service, here’s your scope. It would be then up to the self-regulator to set out what the competencies are, how we protect the public. How we ensure that that service is up to a standard to protect the public interest is one example.

What we’re seeing in the legal marketplace is rapidly changing technology, the way people want to get legal services, where they might be getting legal information. So this regulator, under the single regulator, really needs to be able to adapt over time to protect the public, access to justice, all the things that we want them to protect.

M. de Jong: Thanks to the Attorney for the helpful example.

Let me just take a moment to explore that a little bit, because what the Attorney has, I think helpfully, described for the committee is how a service is provided through the use and advent of technology, how people are accessing that service. But, presumably, there is always somewhere a person or a person-populated organization behind that technology.

[5:05 p.m.]

To use the Attorney’s example, does she see the legislation being utilized to allow for the designation of a legal profession based not on what it is providing to a client in terms of legal information, not what the kind of advice is but how that advice is being dispensed?

I don’t quarrel with the example, but that strikes me as a pretty interesting distinction — that the regulator will have a different approach depending on how advice is being provided and how a legal service is being provided, rather than what that advice and what that service is.

Hon. N. Sharma: The answer to that is actually very complex. Probably when we get to other sections of the act which, I can suggest, would better explain the different tools that the self-regulator would have — to answer that question that the member asked.

I will say that in the changing use of technology, in the changing way people access technology, the idea that there would be, presumably, a lawyer that has a standard of practice, that licence could be removed from…. May be the case, may not be the case. There may be somebody providing legal services, or providing legal services without any kind of regulatory oversight, on an online space.

This will, and I hope to get into it as we go further down in the tools of the regulator, give the regulator the tools to be able to more easily adapt. If it came to the point of having to have a new legal profession under that…. If it was a legal tech platform or a legal tech category where there’s a person that you can actually regulate that’s providing legal services or setting a standard…. It gives the power that’s carried forth in the other one to regulate a law firm too. You could think of how you define a law firm and how you provide that accountability.

We can get into that as we move on, about the different tools that the regulator has once that profession is set out.

M. de Jong: Yeah, it’s interesting.

Am I wrong? I approach this…. I recognize I’m not on the leading edge of the deployment of technology. But isn’t there always…? Is it fair for me to assume that in the provision of legal services, there is always, ultimately, a person — the person could be corporate, but there is always a person — that is ultimately to be held responsible or regulated? When I say “person,” again, I mean person, an individual or a corporation.

Hon. N. Sharma: I can bring up ChatGPT, which is an example of an AI-generated platform.

[5:10 p.m.]

Actually the solution, we think, or one of the solutions to that is, under this, which I will get to later on in the clauses, the ability of the regulator to regulate law firms — actual enterprises, rather than individuals. So you could think of a way to do that if you can’t in the area of technology.

I’m happy to get into that when we get into that section.

M. de Jong: Just to make sure I understand this, though. When we are regulating law firms, we’re not talking about the creation of a new legal profession, are we? A new legal…. The term we’re referring to here. Yeah, legal profession. We’re not talking about a new legal profession in that sense?

Hon. N. Sharma: The member is right, in a way, but I think that it gets complicated once we get into the different tools that the regulator will have to hold people accountable or entities accountable in the breach of standards.

When we get into that section, I’m happy to go through that in detail.

M. de Jong: All right. Trying to stay focused, then, on the section before us. Legal professions that fall within the ambit of the proposed regulator — lawyers, notaries, regulated paralegals. The Attorney has mentioned the possibility, in the future, of a technology-related legal service that might require designating as a legal profession and has said…. I accept what she’s saying, that she will have more to say about that if and when we get to those provisions.

Is there another example of a separate legal profession that might need designating?

Hon. N. Sharma: I’m not going to speculate on that, because it really will be up to the working of…. What we expect is that the regulator will, through their limited licensing regime, start to see trends and identify things that may be happening in the legal professions, like a whole group of people operating in an unregulated way that we need to set standards on, and then come to government, and that will be a dialogue about that.

M. de Jong: I’m not asking for the Attorney to speculate wildly. I am, to be fair, testing the proposition that says that the reason we have to exclude the Legislative Assembly from the decision-making process around the approval of a new legal profession is because this can happen rapidly and with regularity.

I don’t think I agree with the proposition of excluding the Legislative Assembly, but it is the approach that the government and the Attorney want to take. If it is so, that this is anticipated to happen with regularity, I’m merely trying to explore how it might happen and in what areas.

Hon. N. Sharma: I mentioned the reason why we think regulation, working with the regulator is the better way to go in the changing marketplace. I won’t repeat myself. We may just differ in that view.

I will say that we think that the bill on its whole has many tools available to the regulator with limited licensing and the way to have a review built in on how it’s meeting the access to justice and the goals of it. I’m happy to get into that once we get there. This is just one of the tools that I would expect. I’m just speculating with this — that it wouldn’t be used as often as the other tools that are in the bill.

M. de Jong: I’ll do this quickly, but I feel honour-bound at this point to refer to the ghost of one Leonard Krog, who used to, in his time, many years here, point to the trend — most of that time he was criticizing a government that I was a part of, to be fair — towards broader, more general regulatory powers in areas that are fundamental to the subject matter being dealt with by the bill.

[5:15 p.m.]

I would say, and I understand that the Attorney disagrees, that this is one of those areas where it would have been more appropriate to leave to the Legislative Assembly as the final arbiter of what constitutes a legal profession in the province of British Columbia.

I take it the…. I understand the Attorney is not nearly as exercised about that as I am or Mr. Krog would be or presumably still is. I don’t think the Attorney…. Or maybe she did sit here when Leonard Krog was…. No, their time here did not coincide. So she has not heard that impassioned plea from Mr. Krog. I will not endeavour to repeat it here except to register, on behalf of the opposition, our concern around this particular provision.

The Chair: We are going to take a short break for ten minutes.

The committee recessed from 5:16 p.m. to 5:25 p.m.

[J. Tegart in the chair.]

The Chair: We’ll call the committee back to order.

Clause 4 approved.

On clause 5.

M. de Jong: The provision seems relatively clear in terms of the structure of the new regulator. I note the specific reference in 5(3) confirming that the provisions of the Business Corporations Act don’t apply.

Does the Societies Act apply?

Hon. N. Sharma: No, the Societies Act doesn’t apply. The reason for subsection 5(3) is because, as you’ll see in 1, it defines it as a corporation. So it was necessary to put in subsection (3) to make sure that the Business Corporations Act — that it was clear that it doesn’t apply.

M. de Jong: The Business Corporations Act doesn’t apply. Societies Act doesn’t apply. So any internal management provisions, anything to guide the operation of this corporation must be contained within this legislation. Is that correct?

Hon. N. Sharma: Because independence was such an important factor related to this, particularly with legal professionals and lawyers, the rules are left up to the independent regulator to set out.

M. de Jong: When we say rules of the sort that would otherwise appear or be determined by a societies act or a business corporations act, anything that isn’t contained within the provisions of this bill….

[5:30 p.m.]

[S. Chandra Herbert in the chair.]

In terms of the administrative processes, in terms of disputes that might arise, those procedures, any rights that might exist to challenge, those are either all contained within this legislation or require the regulator, that this legislation purports to create, to set those rules that uniquely apply to the Legal Professions of British Columbia.

Hon. N. Sharma: The member is correct. If it’s not in the act, then it’s up to the regulator to come up with those rules.

M. de Jong: There are obviously many provisions of this legislation that touch on aspects of what the regulator, the authority, and the jurisdiction of the regulator….

Is there a particular provision, though, that relates specifically to the statement the Attorney has just made about the jurisdiction of the regulator in that respect?

Hon. N. Sharma: It’s section 27. I’m happy to get to that, if we want to, next.

M. de Jong: Well, I can’t take this to 27, but I think I can take this to 6.

Clause 5 approved.

On clause 6.

M. de Jong: Not an insignificant provision, insofar as it — clause 6 — purports to lay out the duties of the regulator. They are…. Well, I was going to say they are different. I guess, over the course of the next little while, we’ll determine how different they are. They’re certainly enumerated differently, and we’ll ascertain to what extent that is reflective of actual differences.

The present Law Society’s overriding duty is to uphold and protect the public interest in the administration of justice. It lays out various areas: preserving and protecting the rights and freedoms of all persons; ensuring the independence, standards and competence of lawyers; establishing standards and programs for education for lawyers and students; regulating practice; supporting and assisting lawyers to fulfil their duties in the practice of law.

There is significantly different wording employed here. Let’s, again, start with the general question: what is the difference between the duties of the present Law Society and what the duties of the new regulator will be?

[5:35 p.m.]

Hon. N. Sharma: The member points out the differences between the current Legal Professions Act and the bill before us, and I’ll just maybe talk generally and then maybe more specifically about them.

The general intent and goal of the changes in this particular provision was to simplify and to clarify. It was based, also, on an exploration that my team did about what other modern law societies were saying in a simplified version of what the duties of the regulator were and also to make sure that that clarity involved duties to the public interest rather than, maybe directly, individual lawyers, so just to clarify the role of the regulator when it comes to the oversight provided for the practice of law and the protection of the public.

M. de Jong: I’ll just deal with those maybe in reverse order.

The last one the Attorney General mentioned…. I think what she said was emphasizing the duty to protect the public interest or the duty to the public interest. I, like the Attorney today, at one time was, by virtue of the position, a bencher and of course as a lawyer always tried to emphasize to people, as the Law Society does presently, that the overriding duty is to protect the public interest. That is something that I think the Law Society continues to take very seriously and always has, contrasted with an organization like the CBA B.C. branch which advocates on behalf of lawyers.

Has that, to the Attorney’s mind, been in doubt? She made a point of highlighting that distinction. Is there a reason for that? Was there confusion about the Law Society having, as its primary objective, protection of the public interest? What has given rise to the need to distinguish that differently?

Hon. N. Sharma: Really, this was a way to simplify and clarify. I know that the Law Society situates itself in the public interest right now, but a lot of the language in the previous or current one is not really simplified or modernized or at the heart of the duty. So it was just really a way to…. The idea of a new regulator with single regulating of all professions — to just make it really clear, what we thought captured the essence of what the goals of a regulator should be without, maybe, too many provisions or too many words, just to capture it.

M. de Jong: I don’t want to belabour this, but I thought the existing provision said something along the lines of upholding and protecting the public interest in the administration of justice. That seemed pretty unambiguous to me.

[5:40 p.m.]

Hon. N. Sharma: The reason for not using that, I think maybe a difference of opinion from the member, is that the “administrative justice” term as a term is not one that’s, I would say, generally understood by the public. It’s included in some of the law studies across Canada — that term, administrative justice, in that provision. Others are not.

Really, the intention with this is to clarify the mandate and to focus that. So administrative justice is not defined in the current Legal Professions Act. It’s a broad term that generally means the process through which the justice system works, and it’s not a phrase that’s understood by the public. That was the reason we didn’t include it.

M. de Jong: All to say that the Attorney is telling the committee that there is no question today that the present Law Society has done anything other than operate to protect the public interest. This is merely meant to be a stylistic change, as opposed to some sort of substantive change.

Hon. N. Sharma: There’s no doubt that I have that the benchers and the members of the Law Society act honourably, and they do their best to protect the public interest.

What this bill does is provide better legislative guidelines and framework and modernize the language to situate the regulator in a way that is in accordance with the report that the Law Society conducted on its own volition under the Cayton review in 2021. That talked about ways you can strengthen the legislative framework and the regulator to make sure that all of those duties to the public interest are clear.

M. de Jong: To the Attorney, I think I know the answer to this, but I’ll ask it anyway. Is she aware of any circumstances, or can she call to mind any examples or circumstances that she is aware of where she feels the Law Society has been guided by something other than a desire to protect the public interest?

Hon. N. Sharma: There is nothing that I’m particularly concerned about. But this is a journey, I’ll note, that the Law Society has been on over the last few years to understand, not only with the Futures report but also the Cayton review, what should be in a modern law society and how that could look under a regulated body. I think this bill has a lot of those elements of improvement in it.

M. de Jong: In a couple of instances and just a moment ago, the Attorney used the term “modern law societies,” and I take it that some of this language…. I think the Attorney has pointed out to the committee has been taken or borrowed from what she would term modern law societies.

Is there one in particular that has guided the drafters of Bill 21, and in the specific case of clause 6 that we’re on, is that drawn from a particular example, a particular jurisdiction?

[5:45 p.m.]

Hon. N. Sharma: I would say, just generally, that what you have before you is a made-in-B.C. solution, although I did mention that we looked, as we always do, at other examples. Some of the ones we looked at were Alberta, Manitoba, Ontario and Quebec, along with other jurisdictions. But I wouldn’t say that one was guided by the other.

What guided us was…. Before we made the intentions paper, we sat down with the notaries, the B.C. paralegals and the Law Society. It was very clear during discussions, and I think that’s in the intentions paper, that the duties of the regulator were an important aspect of this whole project, or one of the important aspects of the project. A lot of time was spent speaking with those key stakeholders when it comes to the content of what section 6 has in it.

M. de Jong: We were, I think, having this conversation specifically in the context of the reference in sub 6(2) to the protection of the public interest or the obligation to perform its duties in the public interest. I contrasted that with the existing phrase from the regulator, and the Attorney pointed out that the term “administration of justice” has fallen out of use.

Sub 6(2) is reflective of more modern regulators. Is the sentence in sub (2) drawn from a specific jurisdiction?

Hon. N. Sharma: Essentially the same answer as before. What this section is, is a made-in-B.C. solution. So we went through that process that I described in my previous answer to arrive at that.

M. de Jong: Sub 6(1)(a) includes the phrase…. Well, on the surface it perhaps states what one would expect it to say to regulate the practice of law in British Columbia. However, it is a legal document written by and about lawyers.

Is that phrase “practice of law”…? I don’t think that’s a defined term. I’m curious. Well, why don’t I start with that? Is it a confirmation that it’s not a defined term?

Hon. N. Sharma: It’s under section 35. For a second there, I thought I’d have to go back to the definitions, but no. It’s further down in the bill under section 35, where that’s defined.

[5:50 p.m.]

M. de Jong: In 6(1)(b), there is reference to the establishment of standards and programs that might apply to applicants, trainees, licensees and law firms. Is the specific reference to law firms differentiated from the existing provisions and, if so, can the Attorney explain the significance of that inclusion?

Hon. N. Sharma: The member has identified a change that we talked about earlier, about the better tools. So, no, law firms is not included in the LPA. It’s defined, but it’s not included, in terms of specifically calling out, in that similar section that’s been adapted. It’s for the reasons that we talked about in detail, about giving the regulator ability to do things with respect to law firms. That might come into play with things like legal tech companies or things like that.

M. de Jong: The Attorney has correctly talked about it in the context of future technical advancement. But beyond that, in an existing regime that regulated, in the case of lawyers, individual lawyers and imposed requirements on those individuals that were enforceable against those individuals, does this substantively…? I recognize that the Attorney has said yes in the context of technological advancements. But is this more significant than that in terms of what it means from a day-to-day regulation of law firms?

Hon. N. Sharma: Because of the nature of self-regulation in the Legal Professions Act and the broad scope of that, the Law Society currently has the ability to regulate about law firms. I wouldn’t say it’s a power that’s been used rigorously at this stage, but as we were talking about a lot in this debate, we see that there will be a need in the future, or a potential need in the future, to that being a more robust role for the regulator, in terms of setting rules and enforcing those rules against law firms.

You’ll see it in the bill as something that has been, in some sections, not only brought clarity to but also strengthened.

M. de Jong: I don’t want to over dramatize this, but does that represent a slightly expanded range of responsibility? I mean, it’s a duty, so it’s not something that the regulator might do or could think about doing. It is a specific duty that is now imposed upon the regulator. Does that…? The Attorney has offered one example of where that duty would operate, but it strikes me that it represents not just an expansion of things they might do but an expansion of the things that the regulator must do.

[5:55 p.m.]

Hon. N. Sharma: It’s not a must, particularly in this context, but it provides clarity that I think is necessary in the field of regulation of legal professions, that law firms is included in the area of establishing standards and programs and practices. The regulator has the following duties to do that. So we leave it to the regulator, as we do with a lot of self-regulating professions, to set up those standards and to enforce and to regulate.

As I mentioned before, I think this will become an increasing role for a regulator in the future. Certainly, it’s something that’s built more prominently, I guess, into this bill, but not in a way that it’s a must.

M. de Jong: Sorry. At the beginning of her response, the Attorney said something, and then right at the end, and I’m not sure I understood it either way. I thought what I heard was the Attorney saying that it’s not a case of must, but I may have misheard her. My impression is that when something is a duty, the regulator must fulfil that duty. It’s not an option. But I may have misheard the Attorney.

Hon. N. Sharma: I thank the member for asking the question.

To clarify what I said, as a duty, it does require that regulator to turn their attention to that, like the regulation of law firms, but there’s no must in the sense of what those actions must be in order to fulfil that. That’s kind of…. Maybe I’ll just provide that clarity.

M. de Jong: I guess to follow that through, though, what we can say is that under this provision, the regulator, as one of its duties, must establish standards and programs for the education, training and competence, practice and conduct of law firms. I understand what the Attorney said. This doesn’t particularize what they must be, but it does say that the regulator must now establish standards and programs in these areas, must establish those standards and programs for a law firm.

Hon. N. Sharma: I’ll go back to the fact that this is also…. As I mentioned, it provides clarity, because in the existing Legal Professions Act, we would understand that scope to include law firms, and my understanding is that there have been some rules developed about law firms.

The regulator has the following duties to establish standards and practices and all that. But it’s not a must in terms of what that actual content is. So, yes, they have that as part of their duties — it’s not in addition to anything different that they have as an existing one — and then there are different provisions in the rest of the bill that would contemplate how that comes into play in decision-making.

[6:00 p.m.]

M. de Jong: So these duties to regulate the practice of law, as defined later in the bill, to establish these standards and programs, to ensure the independence of licensees, to protect the public interest…. This now extends to all of the legal professionals, as designated here, and any additional legal professionals that may arise pursuant to clause 3, which we’ve already dealt with.

Would the Attorney characterize that as representing an expansion…? If we take what the Law Society, for example, does today, does that represent an expansion of their area of responsibility?

Hon. N. Sharma: I wouldn’t characterize it as an expansion, but I would say that the bill…. When we get further on in the provisions, it’s a more explicit reference to the regulator’s role with respect to law firms.

M. de Jong: To the Attorney, I have her point about law firms. I was going further with my question, to: this is a regulator whose responsibility will now include notaries, will include lawyers, will include regulated paralegals.

I guess the question that has been asked is: to what degree, if at all, has any analysis been done to authoritatively answer the question about the workload involved and to what degree this represents an expanded workload?

Hon. N. Sharma: There are transitional provisions that I’m happy to go over in detail that talk about the process that we will get there for.

But I will just say that it’s not a straightforward answer because right now, we have two regulatory bodies for the notaries and one for the lawyers. So you would think that there would be two boards, two CEOs, two executives — two basic organizations that are geared towards regulation. What the transitional provisions set out, which are further on in the bill, is the process by which those analyses and processes will be made.

We expect, and we’ve said this, that it would take up to 18 to 24 months for that transition to happen.

M. de Jong: There will be an opportunity to discuss that — I hope there will be an opportunity to discuss that — further along, but we are talking about this essential aspect of the bill, section 6, and that is the duty.

We’re going to take two organizations that today operate independently — are, as far as I recall, self-financed — and then we are going to combine them to fulfil the duties required here. Has there been any analysis done on the cost of doing that?

[6:05 p.m.]

Hon. N. Sharma: That process is set out in the transitional provisions, about how you would get to those kind of discussions and estimates.

M. de Jong: Yes. I’ve seen the transitional provisions. My question, though, was whether or not the Attorney and the government itself, the ministry, have done any analysis to consider what the cost might be.

Hon. N. Sharma: Not at this stage.

M. de Jong: Well, that is a bit troubling. I’m not suggesting that…. Well, maybe I am suggesting…. Surely, on a change of this magnitude, one of the considerations that the Attorney would want to have before her is the degree to which the changes being contemplated would impose costs on either the Crown or the organizations being regulated. To hear that there has been no analysis whatsoever associated with that is surprising, although, I’m sorry to say, in the last number of years, less surprising.

Hon. N. Sharma: There’s a very important reason that we are having these discussions at a later date, and that’s because independence is implicated as a clear factor related to this. As the member mentioned, self-regulatory bodies cover the costs of their own operations, and that includes the notaries and the Law Society at this stage.

We have had pretty deep discussions for a few years now on the move to a single regulator, and we’ve thoughtfully set out transitional provisions that have been part of that discussion about the process that it would need.

But it’s really important, given the importance of operational independence of the regulatory bodies, that any such arrangement would need to be very carefully considered, given the need for independence of government from the operation of the regulator.

M. de Jong: I’m cognizant of time, but I don’t want to be disrespectful, and hopefully I won’t be.

There’s another school of thought that takes what the Attorney has just said and says: “Well, these are self-regulated professionals. They cover their own costs today. They’ll cover their own costs tomorrow. And by the way, they’ll cover their own costs of the transition.”

So as government, we’re not really that interested, because they’re going to pay for it. The Attorney can say: “Well, we want to preserve absolute independence. Sure, someone else can pay for it.”

Anyway, I don’t want to get dramatic about this. It just strikes me that in a change of this magnitude, it would be normal for the government to have had a conversation with the present bodies that are in charge of regulation to say: “What do you think this is going to cost?”

Can I say this, because I do…? I want to be fair. I think in the first year we did an estimates debate, the Attorney General did comment on this and said: “Well, we’re prepared to have a conversation about the costs associated with the transition, because it’s going to be individual members who have to absorb those costs.” I expect they’re interested to know what kind of levy or what impact this is going to have on their fees. So, independence: fine.

[6:10 p.m.]

I think there’s another school of thought here that says the government is not too concerned, because it intends to have the members absorb all of those costs themselves — or not. I’ll wait for the Attorney to reply.

Hon. N. Sharma: I’ll just say that the transitional provisions are well-thought-out, on how we get to those questions that the member is asking. I’ll just remind the House that the project of a single regulator was agreed to by all existing regulators — the notaries and the Law Society — that this was a project that would result in efficiencies and better processes in the regulation of legal professionals. That was an agreed-to thing.

Now, the next question is: how do we have a process where the regulator has their independence and we figure out the transition to the new regulator? That’s set in the transitional provisions, which I’m happy to get to.

M. de Jong: Okay. One last observation, and it’s simply this: as logical as the Attorney might want to make that sound on the sequencing, my recollection is that when a change of this magnitude was contemplated, the Treasury Board would be involved to assess whether there were any costs involved to the Crown and, if so, how those costs would be apportioned.

It sounds like none of that happened here. The Attorney is relying upon provisions contained later in the bill, and the government has decided to proceed in the absence of any analysis as to what the cost might be.

Hon. N. Sharma: I’ve nothing more to add than in my previous answers.

M. de Jong: I have nothing more to ask.

Clause 6 approved.

On clause 7.

M. de Jong: Guiding principles — I don’t know how recent a phenomenon they are. I think at one time drafters were hesitant to include provisions like this that, by definition, were the kind of thing you would see in a preamble.

We don’t do preambles to legislation in this province. I don’t think we have in a long, long time. Here they are — I’m not suggesting that it’s unique; we’re seeing these more frequently — embedded within the main body of the legislation, about what the regulator must have in its mind as it embarks upon its duties.

It lists four general areas of concern, the first one being “facilitating access to legal services.” The government has chosen to include this in the section right after the duties of the regulator, and has provided this statutory direction. That’s what this is. It’s a statutory direction to the regulator that says: “In exercising powers and performing duties under this Act, the regulator must have regard to the following principles: (a) facilitating access to legal services….”

What are the measures that the Attorney intends to rely upon in the days, months and years ahead to determine whether the regulator is meeting that objective?

[6:15 p.m.]

Hon. N. Sharma: The way that the guiding principles are incorporated in the act is set out not only in section 7, as the member notes, to be in there, but also in the annual reporting, which is in section 23.

It would be government overreach for government to set out the measurement and the way that the regulator will measure themselves against these principles, but they have to figure out a way to openly report, in the annual report, about how they’re assessing their progress on it.

We would expect that that would include data — which they are the keepers of, when it comes to regulation, where they would have specific ability to do that — and measurements related to that principle, which they’re set out into the world to implement, independently of government.

M. de Jong: That’s a good start. The Attorney says it will be for the government to set out, pursuant to the provisions of section 23. Well, what better opportunity…? The only opportunity we will have to gauge what is in the government’s and Attorney’s mind would be to pose the question right now around the specific provision. What does the Attorney believe would be appropriate data, appropriate measures, to indicate whether or not the regulator is facilitating access to legal services?

Hon. N. Sharma: Thanks for the question.

At this stage, the Law Society has started to ask questions about measuring access to legal services in a way. In this debate, I’ve mentioned a survey that they conducted, which said that six out of ten British Columbians, if they have a legal issue, don’t access a lawyer. This is the type of information that they could see — if it’s changing the dial or moving the dial over time.

I’ll list a couple more examples of what I could see as potentials. The member would know that we have an Anti-Racism Data Act and collection of data when it comes to how demographics interact with things like the justice system or access to services. That data will be transparent and free, along with the coupling of data that maybe the new regulator will collect with respect to underrepresented groups and access to services so that they could track how that was happening or doing or how that was showing up over time.

Another particular one has more to do with 7(b), but you could say it is implicated in different ways. We know through some of the research that, although there may be an increasing level of Indigenous law students that go through law school, there’s a drop-off when it comes to how many of them become members of the bar, and there are statistics on that. If that were something that was showing up, then the question to the regulator is: why, and what’s happening?

Of course, they have a big spectrum of tools. Licensing, the entry level — all that is within their scope. It’s one of the things that they could measure.

With that, I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 6:20 p.m.

The House resumed; the Speaker in the chair.

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

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

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

Hon. N. Sharma moved adjournment of the House.

Motion approved.

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

The House adjourned at 6:21 p.m.