Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, JUNE 5, 1997

Afternoon

Volume 5, Number 15

(Part 2)

[ Page 3989 ]

The House resumed at 6:36 p.m.

[G. Brewin in the chair.]

Deputy Speaker: The hon. Minister of Small Business, Tourism and Culture has advised the Chair that she wishes to make a personal statement.

Hon. J. Pullinger: I've had an opportunity to review today's Blues , and I wish to offer a statement and an apology. Yesterday I apologized to members of the House; however, I wish to strongly emphasize that at no time did I intend to mislead the House. If any member believes I misled the House, I unreservedly apologize to both the House and Mr. Hughes.

Deputy Speaker: The Chair considers that in keeping with parliamentary practice and traditions, that apology ends the matter.

Hon. J. MacPhail: In Committee A, I call Committee of Supply. For the information of the members of the chamber, we will be debating the estimate of the Ministry of Agriculture, Fisheries and Food. In this chamber, I call Committee of the Whole to debate Bill 23.

CHILDREN'S COMMISSION ACT

(continued)

The House in committee on Bill 23; G. Brewin in the chair.

section 2 (continued).

V. Anderson: When we broke for recess we were talking about the appointment of the commissioner and how independent that person is as a result. I know the Attorney General has a bias that if judges get appointed they're still independent, so I gather the appointment . . . . It was a good discussion, and I think we need it on the record so that other people out there might understand it, as well.

One of the realties, though, is that we do have the concern in the community at large, as well as among ourselves, about the effectiveness or the independence of the commissioner. Part of that will be seen in how the recommendations are not only made but also acted upon. One of the suggestions that's been made to help that process along -- and I'm wondering if the minister would be willing to comment -- is the use of the Select Standing Committee on Health and Social Services. As the minister knows, that committee deals with things when they get referred to them.

If it was to be referred to them and the commissioner could report to them on a periodic basis, I think that would go a long way to giving the confidence of independence that everyone is seeking. I wonder if the minister would be willing to comment on that.

Hon. U. Dosanjh: If it's the Gove committee the hon. member is referring to, I understand that the commissioner has been present whenever she has been asked to be present.

With respect to whether or not on an ongoing basis the matter with respect to the commission ought to be in a state of standing referral to a particular committee, I don't believe that is something that is either desirable or appropriate when there are matters that the commissioner would report to me, as well as publicly at the same time. So far, in fact, all the reports that the commissioner has made have come to me at the same time they've been made public.

Unless there are difficulties with that process with respect to severance and issues such as that -- with respect to privacy and confidentiality of private information -- the process would continue to be that. I believe that the commission, as it's framed within the legislation, is as it would stand.

V. Anderson: I appreciate the minister's response. I wasn't referring to the Gove committee. Let me rephrase it. Perhaps it might come up later, but I'll raise it now and if we want to discuss it later, that would be fine.

Is it within the power of the commissioner -- who can speak to any group she wishes to, if I understand the act properly -- to request a meeting with any of the standing committees of the Legislature that relate to concerns of the commission? The Health and Social Services Committee is the one that would cover a lot of the areas that she deals with, as a report back for information or interaction.

Hon. U. Dosanjh: The standing committees do not have any jurisdiction to inquire into anything, unless the matter is specifically referred to them by the Legislature. And what the hon. member is asking me to say is that the commissioner and her jurisdiction would be referred to a particular standing committee every year, on an ongoing basis. No, that wouldn't be done, nor is it desirable. The commission is independent. The commission would make recommendations. They would be as public as the recommendations of any officer of the Legislature, and would have the same force and effect in trying to influence a government into action.

R. Neufeld: I was surprised a bit by the minister's earlier comments about officers of the Legislature, and that he feels there is actually no need for that -- that the Lieutenant-Governor-in-Council should be able to appoint people to these positions at will.

We have a child and family advocate that reports to the Legislature, an auditor that reports to the Legislature, and so on and so forth, for some perfectly good, sound reasons. I'm certainly not trying to say that there would be anything untoward done by the children's commissioner or the minister, but I think that what is seen by people when someone is an officer of the Legislature . . . . It's much easier to explain to the public and have the public understand that those reports would be going directly to the Legislature instead of going first through any ministry and then being put out.

I'm not saying that the commissioner hasn't given us the same information, as far as I know, that you have received. But I think that it's what is seen that is much better, and I think it probably safeguards the minister and the government more than anyone else if that commissioner reports to the Legislature as a whole.

One of the main concerns I had with the bill was the reporting procedure. I'm certainly not trying to indicate that the present commissioner wouldn't report fairly, but I think it's what's seen to be done rather than what is done.

[6:45]

Hon. U. Dosanjh: Hon. Chair, I think we've kind of exhausted this issue. I have indicated that Judge Gove wrote to the Premier subsequent to his report and indicated that a commissioner appointed for a certain term through a Lieutenant-Governor-in-Council appointment would be as

[ Page 3990 ]

appropriate as an officer of the Legislature in this case. And the government decided to go with this arrangement, as we feel that this arrangement would be satisfactory under these circumstances.

I appreciate the comments the hon. member has made. I have nothing against the officers of the Legislature. They do a wonderful job. I just happen to think that we shouldn't be proliferating officers of the Legislature, because in real, practical terms, they are less accountable to you, hon. members. When was the last time we had any officer of the Legislature in this House answering questions directed at them by you? And that's not to say that they would not do so, if you asked them to come and do it. However, you have the opportunity to ask questions of the Attorney General, to whom this commissioner would report on a constant basis.

I think that we do a disservice -- and I feel very strongly about this -- to ourselves as elected legislators of this province when we begin to say that an independent commissioner appointed within the framework of this legislation would not be seen to be independent. I think it's our job out there to say to people that government that's elected is, at the end of the day, most accountable -- more accountable than anybody else.

I think it's important for us to recognize that within the Ministry of Attorney General, is housed, in fact, the most important independent function that this system ever performs: criminal justice. Nobody ever says that that is not seen to be independent. It functions every day without any interference; it is seen to be independent.

And I think it's important for us to begin to instil some confidence and integrity and dignity back into what we do here, day in and day out. Let's not cast doubt over our own honesty, over our own integrity and over the integrity of those who work for the public of British Columbia.

G. Wilson: I actually thought that we'd canvassed this issue, but I want to respond to the comment that the Attorney General just made: when was the last time that members of the House had a chance to question an officer of the Legislative Assembly? I think the record should show the last time was not long ago, and it was Joyce Preston, who was an officer of this assembly, who came out with a report as a child advocate. I, for one, can tell you that in both the questioning and discussion with her, even though she was not within this chamber -- certainly she didn't come within the chamber, that's for sure . . . .

But she certainly has made herself available -- at least to this member and, I would assume, to other members -- and has been exemplary in her reporting of issues that are in place.

I know that the Attorney General was not trying to suggest otherwise. I'm just saying that this is a debate that could be ongoing. And I will use the Attorney General's words to argue, when we deal with such officers as the gold commissioner and some others, motor vehicle authorities and so on, with respect to . . . .

Interjection.

G. Wilson: And the Police Act -- exactly. As the Police Act comes out, we will then come back and revisit this debate. But I have no further questions on this section.

V. Anderson: I thought I was finished, but I want to pick up on the minister's last comment. He made the point that we could question and ask about the commissioner through him, which is the very thing that indicates that the commissioner is not as independent, because the commissioner can then only speak to the Legislature through his voice. If we want to question it, he's indicated we should question the commissioner and ask questions of the commissioner through the Attorney General. And that's the very thing that concerns us: it's a secondhand interaction rather than firsthand.

They were his words that triggered again . . . . I was almost willing to settle for his comments, and then his words triggered off a concern that I had to respond to.

Hon. U. Dosanjh: I understand the commissioner is meeting with the Liberal caucus next week, at their request. You can ask her any questions without me being present.

Section 2 approved.

section 3.

G. Wilson: I'm assuming, of course, that this

section 3 doesn't list, in order of importance, what these guiding principles should be. It would strike me that if that's the case, then it is ironic that the responsibility being shared by government, families and communities for the protection of children from abuse and neglect would be at the bottom of the list and not right at the top of the list. I think one could argue a number of them, in that sense.

But I think that the area that causes me some concern -- and that I'd like some response to -- is

section 3(d), in particular. Essentially it talks about "the importance of providing children and their families with opportunities to participate in making decisions that affect them." It's not just important for them to be participating and to have some opportunity to do that. Surely to goodness we have learned, if anything -- and that clearly is in Joyce Preston's report -- that when you're making decisions affecting children, the children frequently should be directly involved in that process, especially as they get older in years.

What sits in my mind were her comments when she was giving her press conference. We did have a chance to have some questions and answers, where she invited us -- those of us that were listening to her remarks -- to imagine how it must feel to be sitting in a room outside of a meeting where you had no opportunity to hear what was being said and to know that inside that meeting there were people sitting down and making decisions that affected your personal future. Imagine how it must feel to us. I don't think most of us would like the fact that we'd have somebody sitting there making decisions about our future without our direct involvement.

So I think that as a guiding principle, it shouldn't be a question of whether or not there are opportunities to participate in defining. It would strike me that as a guiding principle, there has to be direct involvement. Even though it suggests . . . . The next one,

section 3(

e) says: " . . . the importance of giving children, their families and communities opportunities to participate in defining, planning . . . . " They need more than opportunities. The guiding principle of this commission, surely to goodness, must be to put the onus on those who are directly responsible and involved to be directly involved in decisions that affect their lives.

One of the big problems we've got, and I think it was something that was so clearly identified in Joyce Preston's comments and remarks, is that when we have these decisions made in the absence of input from the people we are making decisions about, we run into problems, because resentments

[ Page 3991 ]

are built in, fears are built in. All kinds of future problems, which were not considered because we didn't know about them, come to the fore.

So I'd like the Attorney General to look at that language and to comment on that, because I think this is a critical issue. It's certainly one that Ms. Preston made front and centre in her remarks to this assembly, as an officer of this assembly.

Hon. U. Dosanjh: There is no question that what the hon. member is saying is correct, that the families and children have to be involved in making the decisions that affect their lives. That is, in essence, what these principles are supposed to mean. One could have different words to convey the same meaning, but I think the meaning is conveyed: it is an important principle in the commissioner's work that the families and the children have the opportunity to be involved in making decisions that affect them. In essence, that's what it says.

G. Wilson: But I think the minister would agree that the language is weak, in the sense that it doesn't say, as a guiding . . . . Because these are guiding principles, this is presumably what is directing the commission. This is an important section. I think the language says that you have to give these people opportunities. Do they have an opportunity once in the decision-making process, or twice? Or maybe you consult them two or three times? Or are they directly involved in the decision-making issues and discussions? There's a difference; there's a distinction.

It's like saying: "Well, we were going to consult with you." But does that mean that we phone you up and say: "By the way, we're talking about what's going to be the future of your life."

So I think the language is weak here. I would go on to say that the language is also weak under 3(

b) where it talks about, as a guiding principle, the importance of the child's best interests. Now, I hear this a lot. I've heard it in the courts, where judges sit up there and pontificate about what is in the child's best interest, based on an argument that's presented by two lawyers. They frequently have never even met the child and the judge has never met the child, and yet they're determining what's in this child's best interest. Well, how on earth do they know what's in the child's best interest? They're going strictly on a verbal argument.

So it strikes me that this issue of having children, especially as they get into their later years . . . . I mean, I recognize that if we're dealing with infants here, it becomes more problematic. It is critical that these young people are engaged in the discussion and at least hear the arguments so they can fully understand what each party is saying and can fully understand the process.

I don't think we give young people enough credit, frankly. I'll tell you, the biggest fear that young people face is adults making decisions, in what they see to be an arbitrary way, that affect their lives. They feel totally lacking in power or ability. It reminds me, if I may digress into my own situation, of a young man who is now part of my family.

He said to me once, in a rather poignant way: "When do I get a chance to talk to the judge so I can tell him what I want?" That's a pretty tough question to answer, because the answer is: "You don't, under this system." The next question was: "Well, how is it that I don't have a right to say what is in my best interest from my perspective?" Unfortunately, the system says: "Because you're too young. Because you're not old enough. We know best."

The discussion and decisions would be very, very different, I can assure you, if children were engaged in this process. Even if it didn't go the way they wanted it to go, they at least would have been participants in the discussion and would fully understand how the decisions were made.

I ask the minister to reflect on this language, because it doesn't say, as a guiding principle, that children and families must be directly involved in those decisions, and I think it's critical that they are.

Hon. U. Dosanjh: If the hon. member looks at

section 12, there is obviously a notice provision with respect to the complaint -- the commission notifying the child, if he or she is 12 or more years of age, with respect to that complaint -- so the child is involved.

However, there is something else that I want to point out to the hon. member, and that is that these would be the guiding principles by which the commission would judge the decisions made throughout the system with respect to children. Obviously, it would be the commissioner taking guidance from comments made here in this Legislature.

The commissioner is not sitting like a judge, basically interpreting a particular word from a particular section; the commissioner would take guidance from both the debate in this House and from the legislation in order to make decisions with respect to the actions, or lack thereof, with respect to the conduct of various agencies and ministries that serve children.

In that regard, although the hon. member's point is well taken and very well made, I believe the fears and concerns are not well founded, in the sense that I believe the commission will not be making direct decisions with respect to an individual child. These would be the guiding principles for making decisions about how the ministries treat children. The commission would keep in mind the importance of the opportunities that the ministries or other agencies need in order to provide for the involvement of children and families in decisions that affect them. There is that certain distinction, although the member's point is extremely well made and taken.

[7:00]

R. Neufeld:

Part 2,

section 3(a): " . . . the need of children for services that are (

i) geographically accessible." I brought that up in second reading. Maybe the minister could just expound a little bit on how he envisions that that

section would take place across the province and how it's going to be provided in the rural parts of British Columbia. It's

section 3(a)(i). Maybe the minister didn't hear me.

Hon. U. Dosanjh: The commission obviously would take that as one of the guiding principles for assessing any service that's provided to children or a child and would, of course, openly state whether or not that service is, appropriately, regionally accessible or what changes should be made to make it accessible. Obviously, ministries would be guided by those recommendations of the commission. So in a sense, the commission would be a watchdog to make sure that designated services provided to children, where the commissioner has something to say, are regionally accessible.

R. Neufeld: I appreciate that response. If, for instance, I was having some difficulty with the range of services in the north, how would I access the commissioner to deal with those issues? Would I do it through your office or through the commissioner's office?

Hon. U. Dosanjh: Obviously, there is the complaints section, and there are persons indicated who can make a

[ Page 3992 ]

complaint. Above and beyond the complaint process, the commissioner, on her own initiative, can investigate any service or services with respect to a child or children anywhere in British Columbia that it is appropriate, in the commissioner's mind, to investigate.

Let me just read

section 9(2):

"In addition, the Children's Commissioner may present a special report to the minister or comment publicly about a matter relating generally to the work of the commission, if the Children's Commissioner considers it necessary to do so."

So you could actually walk into the commissioner's office and say, "I am very concerned about issues A, B and C in a particular region," and if the commissioner deems it appropriate, she would investigate that and make a public comment.

B. McKinnon: Could you just expound a little bit on "the need to provide services to children in a consistent and timely manner," and just exactly what you mean by that? Is there a certain time frame within which you want to deal with the child? I just want you to expound a little and give me a little more information. That's

section 3(

f) of the guiding principles.

Hon. U. Dosanjh: That simply means -- in addition, maybe, to other things -- that if, for instance, the ministry is obliged to provide a particular service to a child or children within 30 days and isn't providing that service, the commissioner would make comment on that and say that it should be provided. Or if the commissioner felt that 30 days was too long a period and that it should be done within 15 days, the commissioner would say so.

M. Coell: A comment has been made on item (d): " . . . the importance of providing children and their families with opportunities to participate in making decisions that affect them." I wonder if the minister could expand on the type of opportunities that this bill is expecting out of ministries.

Hon. U. Dosanjh: It is difficult to give a concrete example, but the commissioner has a wide mandate. Within that broad mandate, the commissioner could, of course, look at whether or not . . . .

Let's say, for instance, with respect to health or education, that if there are decisions being made with respect to a particular child, and there isn't the involvement or sufficient involvement of the child or the family in making those decisions, the commissioner could come in, make a public comment and say that should be rectified -- that there should be a different level of participation, a higher level of involvement than existed at that particular time. It's very difficult to concretize the examples, but that's the direction that I think it would happen in.

G. Plant: I'm about to ask a question that may already have been asked, and I apologize if it has been. I'm looking at the list of principles. There's no statutory priority accorded to them; there's just a list. Is there intended to be any priority? Or is it just intended to be a list?

Hon. U. Dosanjh: A list.

G. Plant: I was interested in and mindful of the comments made by the member for Powell River-Sunshine Coast about the phrase "the child's best interests." I listened with interest to his expression of concern about that. This is the principle in subsection (b). It is, though, perhaps the oldest principle that we have in the area of evaluating the role of the state in relation to children. It's usually stated as "the best interests of the child." It is here. That means there will be, for the commissioner, continuity of that principle.

It is or could be interesting that it's put second as opposed to first in the list. Should I or the readers of this list take anything of significance from that?

Hon. U. Dosanjh: No. All of these are equally important or as important as the commission may think, in its wisdom, in a given situation.

G. Plant: Looking at the list and being mindful of the many duties that the commissioner and the commission have, I take it that one of the expectations here is that over time, on a case-by-case basis, we'll see these principles work themselves out in a way that will start to develop a bit of a sense of what they actually mean, at least from the perspective of the first commission. Is that a reasonable expectation on my part, that we will sort of over time get a bit more help?

Yes, it is very true that these words are in some ways not terribly precise. They are, many of them, just general statements, and over time I think people will want to know what they mean. But it does seem to me that one place we will get that is in seeing them work out in particular cases. So my question again is: is that a reasonable expectation?

Hon. U. Dosanjh: It's a pleasure to answer yes.

V. Anderson: I'm wondering if the minister . . . . In (

d) and (

e) under

section 3, they both talk about the importance of children and families participating. I'm wondering if the minister could indicate for me the significance of (

e) as over against (d). What is the difference between those two? There's two statements, (

d) and (e), talking about participation of children and families. I'm wondering what is the difference in meaning or implication of those two statements.

Hon. U. Dosanjh: These are fine lawyerly distinctions, but they are important. In

section 3(d), this would be a case-specific factor. The other one would be a factor related to an investigation with respect to a system, or systemic investigation.

V. Anderson: I just have one more question. It has to do with

section 3(g): " . . . the importance of cultural and kinship ties in a child's development." A real concern has been raised by extended families about their participation, and involvement of the children particularly. There has been a strong movement to get more recognition.

What I'm trying to ask is: does kinship here refer to the extended family? What is the implication of that reference? Does it indicate that kinship family will be given some priority and consideration in the care and well-being of children? That has not always been the case in the past, as has been referred to earlier by the member for Powell River-Sunshine Coast. Actually, the involvement of kinship has been prevented by the legislation. Are we suggesting -- and I would approve if we are -- that there is more concern and opportunity for kinship to be involved because of this statement?

Hon. U. Dosanjh: Yes, there would be. That's the hope, as a result of this clause being included.

Section 3 approved.

section 4.

B. McKinnon: One of the statements here on

section 4(1)(

h) is: " . . . at the request of a minister of the government or

[ Page 3993 ]

on the commissioner's own initiative, conduct special investigations . . . . " Does that mean that any minister of the government can request the commissioner to do an investigation?

Hon. U. Dosanjh: Yes.

B. McKinnon: Does the commissioner have to be instructed by a minister before any investigations are done? Can she on her own decide that an investigation of a child should be done? The reason I ask that question is because sometimes during question period when we questioned the Minister for Children and Families about a child, she had to wait until the minister asked for an investigation. So I'm wondering if that's the same or if it has been changed by this bill.

Hon. U. Dosanjh: It would be forever changed. The commissioner would be able to do the investigation on her own.

[7:15]

G. Wilson: My questions around

section 4 have to do more with the discretion of the commission in investigation -- to what extent there is discretionary power and to what extent it is obliged to investigate.

The second is with respect to its accountability in the process, in the decisions it has taken. For example, it says, within the commissioner's jurisdiction: "The commission may do . . . . " It doesn't say it must or shall do. It says it may do, so it clearly has some discretion.

Section 4(1)(

a) says: " . . . collect information about the deaths of all children and investigate the death of any child if the commission considers an investigation is necessary to determine the adequacy of services to the child or to examine public health and policy matters."

Now, in light of the difficulties that may be encountered with respect to internal problems in terms of staff issues that may relate around the custody question and the services that are being provided to children in custody who are receiving some form of designated services, and in light of the public opinion which is clearly out there now with a public that is obviously quite agitated and concerned about what they're hearing and what they read in the popular press -- whether it's accurate or not -- the fact is that public opinion out there is becoming well established.

I wonder what the Attorney General's thinking is with respect to providing that level of discretion, and to what extent there may be some obligatory requirement of the commission with respect to these investigations. That's the first part of my question. Maybe we can get an answer to that, and then we could talk a little bit about the accountability of that.

Hon. U. Dosanjh: Well, obviously this has been very deliberately drafted in this fashion to give the broadest possible discretion to the commissioner for two reasons: one, broad discretion means independence and not necessarily all direction; it also means that the commissioner could choose to investigate certain things and not choose to investigate other things. But I am told by the commissioner that the commissioner intends to continue to investigate all of the suspicious deaths, all of the fatalities generally, and critical injuries, as she's been doing for the last nine months.

G. Wilson: I appreciate that answer and the frankness of the answer. I can understand that discretion would obviously work to the advantage of the commission, in terms of its decisions on how it should proceed.

However, there is a second concern, and that is the extent to which the commission may, for whatever reasons it deems necessary, decide not to proceed in an area where other agencies who are equally involved in the process -- because remember, we have several agencies that get involved around suspicious deaths -- may in fact deem or even require or suggest that additional investigation be undertaken.

I guess the fear that some who read this may have -- and I don't want to get too hypothetical here -- is that this may be used as a means by which investigations will not proceed, and that in fact internally, within ministries of government, this commission may essentially act as a dead end, and therefore investigative issues may not come forward.

I think that was part of the reason that members on this side of the House wanted to have the commissioner as a function of the assembly, as opposed to the minister. Ultimately, the commissioner is appointed by government; the agencies of government are directly involved. Whenever one has an agency of government investigating another agency of government, clearly there are problems involved with how those investigations can or will proceed.

Hon. U. Dosanjh: I understand the hon. member's concern. That problem, if it is a problem, is quite curable through the catch-all regulatory power that exists in the legislation so that you list all of the various things the commission must do in addition to the broad discretion. But I don't believe that that would be a problem.

I haven't, in the last few moments, looked at the complaint section, but if one felt that the commission wasn't doing what it was supposed to do and was ignoring the problem, one could actually go through the complaint process. It seems to me that there is not a broad discretion to refuse a complaint, except under certain circumstances. So there is a way of getting around it.

G. Wilson: Unfortunately, we don't get to debate the regulation section, so I guess we have to wait and see how that's going to apply.

Under

section 4(

c) it suggests that this commission may "make recommendations regarding any deaths or critical injuries investigated under paragraph (

a) or (b) . . . . " I guess my question is: make recommendations to whom? What is the weight of those recommendations with respect to whatever they might contain, in terms of whether it's obligatory on those who receive them? To whom are they making the recommendations -- to the minister or to the agencies that they've investigated?

Hon. U. Dosanjh: The Attorney General would always get a copy of all of the reports that the commission would make. Plus, all of the agencies that need to do the appropriate work to enhance the safety and protection of children would get copies of those recommendations. Of course, those recommendations would be directed to the specific agencies or institutions within government to make sure that they're implemented.

The commission has recommendatory power. It does not have power beyond that. But since it's in the public domain, I'm certain that it would carry some weight.

G. Wilson: I'm tempted to bring up Joyce Preston,

section 9, at this point. That's in the public domain, and those recommendations are there, but we haven't quite got there yet; we haven't quite acted on that yet.

[ Page 3994 ]

I'm assuming, then, that under 4(d), where it says to "set standards," that would also fall under exactly the same category. Unless that's different, I'll just assume that to be the case and move on.

Under 4(f)(

i) it talks about "breaches of the rights of the children in care." I'm assuming that if one looks at the definition of "rights," it's talking to

section 70 of the Child, Family and Community Service Act. Reading

section 70, it gives a whole list of what those rights may be, one of which is a right of privacy.

I think that we could be running into some complications here with respect to language that follows in the act with respect to the commission's access to information in the next section. If that's the more appropriate place to deal with it, I will. I'm assuming that "in the rights of the child" applies to all of what is included in

section 70 as per the definition of this act -- which says that's what it means. If that's the case, then either now or perhaps when we get to

section 6, we might want to talk about the extent to which privacy of the child as a right of that child is protected from this commission. Whenever we want to do it -- we could do it now, or we could do it later.

Hon. U. Dosanjh: Just as a general observation, the privacy of a child under this legislation would be protected as it is protected, for instance, with respect to the ombudsman's legislation. It would have the same protection.

V. Anderson: For clarification, when we're talking about the accountability of the commissioners themselves . . . . If I remember, in the ombudsman's report, the ombudsman indicated that because the commissioner is appointed in the way she is, she's in the ministry in the sense that the commissioner comes under the supervision of the ombudsman, and that gives some security to those who might be concerned about accountability. Is that true? If so, that would be helpful.

Hon. U. Dosanjh: That is true.

V. Anderson: On

section 4(d), "set standards." I'm interested in this because if I read it rightly, it's not that it recommends standards to prescribed ministries, but actually directs "prescribed ministries or agencies" as to the kinds of standards that they must use in their operational processes. It may be a very healthy one, but I'm wondering if the other ministers are aware that those set standards are there in the way it's written.

Hon. U. Dosanjh: They are quite aware of this.

G. Plant: There are two or three points I want to raise about

section 4. I was going to raise the same issue about the use of the permissive word "may," and I understand that the point here, I suppose, from the other side is that this is intended to empower the commissioner. I'm not sure that it is . . . . I've never been particularly happy with the use of the term "may" in that sense. I think if we're deciding by statute to give somebody a job, we should probably oblige them to do it, but on the other hand, I suppose we'll find out soon enough if these jobs are in fact being done. We have the Attorney General's assurance that we can always fix the problem when it arises.

So I'll move from that to another issue, which is: the commission has a fair amount of power to do things of its own motion, as it were, and to act as an educator, as an informant and in some respects as an advocate for children's issues. The commissioner is also the sharer of the tribunal, which is the part of the complaint process that we'll get to later. This is as good a time as any, perhaps, to raise the issue.

In many contexts, those two roles would be seen as roles that ought not to be discharged by the same person. For example, in the human rights context, the human rights legislation now has an officer who is essentially the public advocate for human rights issues in British Columbia, and that person is not a member of the tribunal which is charged with the task of adjudicating complaints. Now clearly, the Human Rights Tribunal is much more like a quasi-judicial body than the tribunal established by this act.

But I am interested, nonetheless, in knowing whether the minister has perceived a potential conflict there and has a response to my questions. There is, I think, a risk, at least a public-perception risk, that if an issue is placed before the tribunal, that it not be there as sort of part of a cause or a campaign by the commissioner.

Hon. U. Dosanjh: Firstly, you have the child and youth advocate, who has the advocacy function in general terms, and I think we are all secure in the knowledge that she is there. Secondly, the advocacy function with respect to the commissioner is with respect to systemic change. The need for systemic change may be sparked or arise from a particular case that she may investigate or make recommendations with respect to, but she would be an advocate for systemic change. So there isn't necessarily that kind of conflict.

[7:30]

With respect to the human rights issues, the Human Rights Tribunal is independent of the commission because the commission does mediation and investigation, and then the tribunal adjudicates on those decisions,

whereas these roles aren't contradictory or in conflict.

G. Plant: I am hearing the answer. I guess it occurred to me that perhaps in some respects the commissioner has a role analogous to coroners in that respect. I'll watch how that role gets discharged.

The other question that I wanted to ask -- and this is one that may have been asked already, so I apologize for repetition . . . .

Looking at (d), when we are talking about "standards to be applied by prescribed ministries" in relation to "the provision of designated services to children," I take it that presumably the commissioner, if the regulations permitted, could make decisions about the way the public school system works under the School Act in respect of some of the services that essentially the public school system provides to children -- if the Ministry of Education were a prescribed ministry and if some of the services under the School Act were designated. Is that understanding correct?

Hon. U. Dosanjh: The answer, of course, is yes, if that was a prescribed service under the School Act. Obviously the School Act would rule in that situation, as well.

G. Plant: Yes. I mean, the example wasn't all that deliberately chosen, but yes, there are in the School Act statutory procedures and review processes that are supposed to be responsive to complaints concerning the provision of education services to children. So I was just trying to see whether or not the Attorney General had a plan in mind to set up the children's commissioner in competition with the Minister of Education. I was going to be interested in watching that happen.

[ Page 3995 ]

I have to apologize one more time if this is repetitious. If the answer appears somewhere, the minister can just say so. Do we know now, in a general sense, which ministries will be prescribed and which services will be designated? Or is this something that we're going to learn about in due course?

Hon. U. Dosanjh: All I can tell the hon. member is that we are starting right away with the Ministry for Children and Families, and beyond that, obviously these are decisions that cabinet would make.

G. Wilson: I just have a couple more questions under

section 4.

Section 4(1)(

f) talks about "review and resolve complaints," and yet there is clearly a process for making complaints and resolutions of complaints under

part 3.

If that's what's intended here, then it would render, given the language -- because this is all completely discretionary --

part 3 purely discretionary on the part of the commission as to whether or not they intend to hear or resolve those complaints. I don't know if we mean two different things here. Is that what that's intended as saying?

Hon. U. Dosanjh: The word "resolve" is, I believe, the problem for the hon. member. That refers to the ability, in

part 3, of the commission to resolve matters before they end up at the tribunal, through mediation and the like.

G. Wilson: But the language says that they may "review and resolve complaints made under

section 10." Well,

section 10 gives the commission the discretion to stand that complaint down, to defer, but it doesn't give -- I don't think -- the commission the right to simply decide whether it will or won't hear the complaint or deal with it. Yet the language under this

section says that it "may do any or all of the following." So it seems to me that the use of the words "resolve those complaints," in reference to

section 10 is not discretionary. The commission has to deal with it. So it just seems to me that on the one hand in this

section you're saying it may do it, but as I read

section 10, that's a pretty defined process. So you can't under this

section say that they may or may not do it, but under the next

section say that they have to do it -- I don't think.

Hon. U. Dosanjh: Obviously the commission is obliged to take the complaints under

section 10 and deal with those complaints as

section 10 and other subsequent sections indicate.

Section 13 specifically goes on to say: "The commission may review the complaint and may attempt to settle it by any process the commission considers appropriate . . . . " That's what it refers to. But then if it can't be resolved, there is a process -- which is mandatory -- that it then goes to the tribunal.

G. Wilson: Well, okay. I guess I'll accept that explanation. Because what I'm understanding, just so the record's clear, is that it is not discretionary as to whether or not the commission is going to hear that complaint. When that complaint comes forward under

section 10, it's going to hear it and it's going to attempt to resolve it and find some means to do that. Through the somewhat more permissive language of

section 4, it simply isn't able to say: "But we choose not to involve ourselves in that." This is what I understand the Attorney General to be saying.

Hon. U. Dosanjh: That

section 4 would not entitle, over and above what's given in the subsequent sections, the commission to refuse a complaint. The only way the commission could refuse a complaint would be under

section 11, and there are specific grounds.

G. Wilson: I just had a couple of other small items -- I think they will be reasonably small items. Under subsection (

h) it says: " . . . at the request of a minister of the government or on the commissioner's own initiative, conduct special investigations and prepare special reports concerning matters affecting children." It also says under subsection (

e) that this commission is going to "monitor other ministries and agencies . . . . " So I'm curious to know to what extent it's anticipated that this commission is going to be an investigative agency for other government agencies. If they're monitoring, and if they can set up special reports, do special investigations and prepare special reports, is it anticipated that this commission would then have investigative powers that would allow them to go in and to basically check out all the other ministries of government? Is that what's intended?

Hon. U. Dosanjh: With respect to the obligations of the commission, that is in fact the bulk of the work that the commission would be doing: keeping all the ministries on their toes to protect and assist the children.

G. Wilson: That was my understanding, and that's fine.

Now, with respect to the material that comes from those reports -- this comes back to a question that I think was asked by the member for Vancouver-Langara a few minutes ago -- does that information then . . . ? If those investigative reports are done, those reports are presumably going to be made public. Or to what extent are those reports going to remain internal, dealt with at an assistant deputy minister or deputy minister level, or dealt with strictly through an internal adjudication process? Because this is really the crux of the argument we were trying to make earlier about the transparency of the work that's being done.

Hon. U. Dosanjh: As per

section 9, all of the reports must come to me. There is an annual report and then other reports pursuant to that section. I must make those reports public within 30 days of the receipt of the report.

G. Wilson: We'll talk more about that under

section 9. I think that would be more appropriate than getting into it now.

V. Anderson: I just want to make sure I understand subsection (f), that when the complaint . . . . Let me get a scenario. Someone has gone to one of the ministries with a complaint. They have dealt with that internally and worked it through and come up with a decision within the given ministry that is the designated ministry. They have been unhappy with the decision made by that ministry. If I understand right, they could then complain to the commissioner, who under subsection (

f) could review and resolve that by, if they felt it were necessary, overturning the decision made by that ministry. They could either affirm it or overturn it under this "decisions concerning the provision of designated services . . . . " So they would have a chance to review whether a ministry had made a wrong decision and they could rectify it.

Hon. U. Dosanjh: The commission can order a particular ministry to reconsider the decision. The commission can also make a recommendation as to what the commission thinks the ministry should do in addition to simply reconsidering it.

G. Wilson: I don't want to belabour this point, but we also don't want this commission to become a babysitting

[ Page 3996 ]

service for the ministries associated with children -- no pun intended. We don't want to have an internal watchdog that is going to look at what's going on, find out where those reports are, internalize those reports and not have those reports come forward for review.

I just read

section 9 again, and we'll get to this in

section 9, but what's really important here with respect to the commission's work is that, first, it has to be independent. And I understand what the minister is saying -- that it is going to be or is intended to be. We'll see how well that works. But secondly, that the work it does is transparent -- it's open, it's public, it's for review -- so that the public is confident that now we are actually going to have a commission that will do more than simply go in and try to keep the lid on some difficulties within family and children's services and the provision of that. We don't want an internal watchdog that never barks nor bites.

Hon. U. Dosanjh: I don't believe a simple guarantee or undertaking given by me in the Legislature would suffice. I would suggest that the hon. members read the reports issued so far and the work done so far by the commissioner. If they did that, they would come to the conclusion on their own that the commission makes those reports public promptly and that the ministries are obviously paying attention to those reports.

With respect to the earlier question from the hon. member for Vancouver-Langara, in the case that the hon. member raised, for instance, if a ministry does not reconsider the decision that the commission might want it to reconsider, does not follow the recommendation otherwise made by the commission, the commission then reports to the Attorney General that a particular ministry has not done as she has recommended. So obviously, you have all of these processes and all of this process is public.

[7:45]

V. Anderson: Again in 4(1)(f)(i): " . . . breaches of the rights of children in care." One of the concerns that I've had -- and I can't place where it comes at the moment . . . . But under

section 70, where the rights of the child are listed, which lists the whole

section of the rights of the child in the Child, Family and Community Service Act,

section 3 within that act says that these rights do not apply to a child who is in a place of confinement. Somewhere, in what I've been reading -- and I can't put my finger on it at the moment -- it applies on one hand to a person who is in corrections . . . . It seems strange to me that they don't have any rights. That is implied. But beyond that, a person who is in a mental hospital setting or a psychiatric setting and is under confinement . . . . And that confinement may have been voluntarily undertaken, because they're under psychiatric care and have made an agreement for a certain period of time.

There's some concern somewhere in what I've read here in the material as to whether that lack of rights applies to them. It concerns me that if a child is under psychiatric or mental care rather than correctional care, that their rights are deprived. And I know that's a question that's raised somewhere in the material I've looked at in regard to these acts. So I'd like to highlight that at the moment, because I think it is significant.

Hon. U. Dosanjh: These are rights, of course, of children who are in care. Children in confinement would have the right to complain to the commissioner with respect to a designated service such as corrections. So you have that avenue open to children who are in confinement.

Section 4 approved.

section 5.

B. McKinnon:

Section 5(2) says: "In an investigation or review under this Act, the Children's Commissioner and each deputy commissioner may consult with any person, including a multi-disciplinary team of advisors." Who makes up this multidisciplinary team, and who decides who's going to be on it? Basically, where does it come from?

Hon. U. Dosanjh: The members of the team are listed in appendix B to the January 31, 1997, report of the children's commissioner, with the exception of one person, Joyce Preston, the child, youth and family advocate, who believes there might be a conflict. She has left the team for that reason. Otherwise, all those names are mentioned there. And it's an impressive list. There's an associate professor; there is a director of child protection; there is a regional coroner; there's the child care expert, Penny Parry, who I believe used to be the child advocate for the city of Vancouver; and there are several other people.

[F. Randall in the chair.]

G. Wilson: Hon. Chair, welcome to the Chair. An invigorating debate underway here.

Under this

section 5 . . . . I'm a little bit concerned about the language, given that we're talking about privileges and protections that are given under sections 12, 15 and 16 of the Inquiry Act. It says: "In an investigation or review under this Act, the Children's Commissioner, each deputy commissioner and each member of a panel has the power, privileges and protections . . . . "

Under

section 12 of the Inquiry Act, it says: "A commissioner appointed under this Part has the same protection and privileges, in case of an action brought for

an act done or omitted to be done in the execution of the commissioner's duties, as are by law given to the judges of the Supreme Court."

And I'm assuming, then, that the language reads that each member of the panel will be deemed a commissioner as is defined in the Inquiry Act. Or does that power or protection only pertain to the commissioner and deputy commissioner?

Hon. U. Dosanjh: These are the same powers that exist in

section 83 of the current legislation for the Child and Family Review Board -- exactly the same powers and privileges that are needed to effectively do the job.

I don't understand the hon. member's concern. If he has a concern, maybe I can address it.

G. Wilson: I'm not concerned about the fact they have the powers. What I'm trying to do is define whether or not . . . . The reason I'm asking the Attorney General is because the question has been asked of me, and I want to give them an informed answer. Under

section 12 of the Inquiry Act, it says: "A commissioner appointed . . . . " It uses the word "commissioner." We're dealing with a commission in which we define, in this language, "the children's commissioner, each deputy commissioner," and then it says "each member of a panel." So the question I'm asking is: is each member of a panel considered a commissioner as defined under the Inquiry Act, and will they have those powers as defined or given to a commissioner under

section 12?

Hon. U. Dosanjh: Yes. Each member of a panel, including the commissioner and the deputy commissioner, would

[ Page 3997 ]

have those specified powers for the purposes of the task at hand -- for the hearing or investigation or whatever they're doing, but not beyond that.

G. Wilson: If that's the case, my next question is on the extent to which each member of the panel will have the powers of subpoena. Does that power rest only with the panel as a collective -- as a whole -- or can each member request and act on a power of subpoena as provided for under

section 16(1) of the Inquiry Act?

Hon. U. Dosanjh: The panel would consist of either one person or three people, with the commissioner being the chair. It is the chair in each case that would have the power to subpoena.

G. Wilson: That actually answers my question.

So the act says that the investigative powers and privileges will be provided under sections 12, 15 and 16. Sections 15 and 16 are the power to summon witnesses, and

section 16 deals with the enforcement of summons and being able to mete out punishment for those that don't abide. The Attorney General is telling me that sections 15 and 16 rest with the chair, not with each individual member of the panel, whether it's one, two or three, as I understand it. In other words, if we have somebody who is involved in the panel, are they able to effect that subpoena independent of the majority will of the panel?

Hon. U. Dosanjh: In the case of a three-member panel, obviously the chair alone could not issue a subpoena; obviously, the majority would rule in those cases. That's part of administrative law, and it is also part of administrative law that the chair issues the subpoena, at the end of the day.

G. Wilson: I'm not trying to be argumentative here. I'm really trying to understand this, because the language in this act says . . . . The way it has been explained to me . . . . Believe me, I'm not a lawyer and I don't pretend to be one, but every time I sit down and talk to one and then talk to a second, I get two different opinions. What I'm hearing is that the language doesn't say that in an investigation or review under this act, the commission has the powers. What it says is: " . . . each deputy commissioner and each member of a panel has the powers, privileges and protections . . . .

" So it writes it in the singular, not in the plural. Given that those powers are pretty extensive, because they've got the power to subpoena and punish for contempt and so on, the question is: does that power rest with each individual member? Or is it intended that it rest with the panel itself -- and thereby the chair, I would assume?

Hon. U. Dosanjh: I understand, by administrative law as well as by regulation, of course, that we will make sure that power to subpoena and the like is exercised by the chair only, although for administrative purposes, in this legislation it is given to each one of them.

Section 5 approved.

section 6.

G. Plant: The first part of

section 6 gives the commission the right to any information that is in the custody or control of a director or of a public body as defined in the Freedom of Information and Protection of Privacy Act. Is that provision intended to override the provisions of the Freedom of Information and Protection of Privacy Act which would otherwise apply to the release or disclosure of information in the custody or control of public bodies? That is, is this a general override of the protections of the act, or is it a power to obtain information that is subject to all of the provisions of the Freedom of Information Act?

Hon. U. Dosanjh: This simply defines who the commission has the power to get information from. There is an override in the legislation subsequent to this.

G. Wilson: This may be a foolish question, and the Attorney General can tell me so, but it seems to me that subsection (3) suggests that the only person who is able to protect information from claim of disclosure is a lawyer who may be arguing on behalf of their client. Is that the way I read this section? It says: "This

section applies despite any other enactment, but is subject to a claim of confidentiality based upon a solicitor-client relationship." So it sounds to me like everybody else has to cough up the info, but if you're a lawyer who has a client, you can duck behind the old client-lawyer relationship. Is that what it reads?

[8:00]

Hon. U. Dosanjh: That is correct. Obviously, the solicitor-client relationship is of extreme confidentiality, and the information could be subpoenaed. But it's not otherwise available to you.

G. Wilson: It's one of the reasons we pay lawyers such big bucks, eh?

The other question I have is with respect to . . . . It says: "A director or public body that has custody or control of information . . . . " I'm curious to know how we define "control of information to which the commissioner is entitled." Clearly, it's custody if you have the information on premises, but if you have control of information -- and that may involve third-party disclosure -- is it intended that a person has to disclose that third-party involvement? Is that what's meant by that?

Hon. U. Dosanjh: Yes, this is with respect to information that may be within the control of an entity or a body, but it is in the physical possession of a third party that may be doing some work for the entity under contract and the like.

G. Plant: I looked for the provision that the Attorney General suggested I might find earlier in answer to the question I asked earlier, and I didn't find it. I found something that doesn't have anything to do with that subject.

I guess I just want to say again . . . . I think this is consistent with the member for Powell River-Sunshine Coast's thrusts here, although I don't necessarily agree with his construction of the solicitor-client relationship. The way this is worded is that the commission has the right to any information. That doesn't simply define people; that gives the commission the right to information that is in the custody or control of a public body.

So I guess I want to be sure again: is the intention here that the commission has a right that overrides the protections that exist, generally speaking, in relation to things like the disclosure of third-party financial information? It's the kind of stuff that's dealt with in sections 21 and 22 of the Freedom of Information and Protection of Privacy Act, which would

[ Page 3998 ]

ordinarily allow someone to say to a head of a public body: "You shall not release this information, because I am entitled to the benefit of the exemptions in the Freedom of Information and Protection of Privacy Act."

It looks to me, on reading

section 6, that the commission has a higher power. The commission has the power to go in and say: "Notwithstanding all of what's in the Freedom of Information Act, it's necessary . . . . " I mean, it has to pass the second test. It has to pass the test of being necessary to enable the commission to perform its duties or exercise its powers. But if it does that -- if it passes that second test -- then subject to the

section 14 report exemption, the commission has the right to it, notwithstanding the Freedom of Information Act. Am I right in that?

Hon. U. Dosanjh: This is the override. Yes, you're correct.

Sections 6 and 7 approved.

section 8.

B. McKinnon: I'm probably going to ask the question that these two gentlemen are going to ask, too. "After completing an investigation into a child's death or critical injuries, the commission may report its findings and recommendations . . . . " Does that mean that the commissioner does not have to report anything? What do you mean by the word "may" in there?

Hon. U. Dosanjh: This is simply an enumeration of who the report could be made to, provided to. In some cases it may not be appropriate to provide a report to the parent, for instance, who may have committed the homicide. So the commission has the discretion to choose to provide a report or not to a particular entity or individual under those circum stances.

[G. Brewin in the chair.]

G. Plant: I think I do want to pick up on the theme of the question that was just asked. I understand that there are circumstances where the commission may not wish to make a report on a particular case to some of the individuals who are enumerated in the subparagraphs there. But the original question, the prior question, is whether an obligation exists to actually make a report, or whether this just becomes a kind of internal process that doesn't actually result in a document or a report.

I guess I have to say -- and I'm sure this is a fault I have; I can't help but read these things the way I'm trained to -- that I don't see any obligation here on the commission to in fact make a report after completing an investigation into a child's death or critical injuries.

Hon. U. Dosanjh: I think, at the end of the day, the protection is in

section 9, where there is an annual report and the reports or summaries of reports made by the commission on various items. Then, I have to make that report public within 30 days. There is a provision -- if I can find it -- which says that if I don't make it public, the commission will make it public after 30 days.

G. Plant: I understand that. The interesting thing, though, is that when you look at

section 9(1), the obligation on the part of the commissioner is to present reports or summaries of reports which the commission has made. That obligation only has content if in fact there are reports or summaries.

So now that we've returned again to the question, where do I find, or where does one find, the obligation to make a report? I don't think it exists in

section 9, at least not on the strict wording. I respect the fact that the minister will stand up and say: "Well, this is the whole way the scheme is intended to work. The commissioner is supposed to make reports after doing investigations." The idea here is that the commissioner doesn't have to make a report known to all of the players in the case and that there may be good reasons for that.

But, you know, at some point the bill and its provisions only mean what they say. So I'm looking with interest to find in this act any obligation on the commission to make a report. We know what happens if they do. It goes, among other places, eventually to the Attorney General. But I don't see the obligation to make a report. I mean, I'm not asking the question just in the abstract. I'm asking it because I care about whether or not the commission should have that obligation -- because I think the commission should have that obligation.

Hon. U. Dosanjh: There is no question that there is no obligation on the commission to make a report. If you look at 4(l)(a), that the commission may collect information and, of course, investigate if it considers necessary and "make recommendations concerning any deaths or critical injuries investigated under . . . (

a) or (

b) if the commission considers this will enhance the safety and protection of other children . . . . "

If there is nothing to learn from a particular report . . . . I would rather let the commission decide whether or not we have something to learn from a particular report. If there is nothing to learn, nothing critical to be said of any agency or ministry or someone, I don't particularly want the commission to be churning out reports that have nothing to say. I think that's the balance here.

The commission, at the end of the day, does perform quasi-judicial functions, in a sense. I've just been advised by the commission that every report they've made so far has been made public. In fact, they have made reports on all of the issues that you looked at, generally -- major issues.

But there may be issues which the commission looks at that do not require or warrant a report. I would not want a bureaucratic obligation on the commission to produce a report about everything that comes the commission's way. I think it's an important balance. It's an important discretion, which also engenders independence. In a sense, I'm not the only one accountable; at the end of the day, the commission is also accountable by the fact that it makes reports or it chooses not to make a report on a particular issue.

G. Plant: I thank the Attorney General for his statements. I think there's a debate that could be had here. I'm not going to propose going very far down the road of that debate, but I can't resist pointing out this: I think the reason we're looking at this bill tonight is in large measure a result of failures on the part of the past apparatus to act in a way which demonstrated accountability, which demonstrated integrity, which demonstrated openness, which demonstrated that the system in fact was working in the way that it should work.

I have even less desire than the Attorney General to create unnecessary bureaucratic apparatuses, but I think it's important that when we talk about that in this particular context, we recognize how sensitive this particular context is.

[ Page 3999 ]

I think, for example, that's one reason why the Attorney General has heard so much in the context of this bill about the independence issue, because we have a history of independence not working. So all we have now, of course, are the institutional structures created by the statute and the promise that they will work well, and we were looking forward to that.

Here again, there is an issue. I agree, there is no need for unnecessary bureaucracy, but I must say that I am slightly concerned when I hear the Attorney General say that if the commissioner doesn't think there's anything particularly interesting or significant, or a point raised by an investigation requires criticism, then the Attorney General doesn't really want to hear from the commissioner about that.

That may well be the case, that some day down the road, when public confidence is restored in this whole process and all these institutions, we could be happier about that. At the moment, I'm afraid that that doesn't provide me with the assurance that I would like to have.

Really, all I've done, if I may say so, is simply put my point on record, as it were. I don't see the obligation in the act. I understand the Attorney General's point, and I'm sure he understands mine, although that may be giving too much credit to my ability to express myself.

In this context, though, I do want to make the only other point that I want to make about

section 8 -- others may choose to debate the issue that I've just talked about.

Section 8 speaks about reporting findings and recommendations to "(

a) the parent." When I turn the page over to

section 10(2)(b), now dealing with the complaint process: "The complaint may be made by any of the following: (

a) the child; (

b) the child's parent . . . . " Now, it's not clear to me that any difference is intended. In fact, I've looked at the two sections; I've thought about it.

I hope the people who are responsible for writing the act will forgive me for saying this, but I think this is an instance where there has been less than careful attention to draftsmanship. Frankly, I think the author of the statute means "a parent of the child" in both cases. But anytime you have these two terms used -- and they're two different terms -- then unfortunately you create problems for people who eventually come along, who don't care much what we say in committee stage debate, who wonder just exactly what it is the statute is all about.

So anytime I see a problem that I think exists in relation to the wording of a bill, my antennae get a little more sensitive, and I start to worry about the other more fundamental issues. Those are issues that I've already dealt with in the context of

section 8.

[8:15]

Hon. U. Dosanjh: I in fact accept the point made by the hon. member, and we will have an amendment drafted and rectify that shortly.

V. Anderson: When we're considering the amendment -- because I think it's very important . . . . One of the realities of what's happened lately is that the families who are concerned, whose children have died or been critically injured, have heard again and again from the newspaper, rather than directly, reports and results that came out, and usually it was not a fair and accurate reporting. I think that following up the discussion here, it's very important . . . .

The kind of wording that was running through my mind was something like: "The commissioner should report the findings and recommendations to the following if they are directly involved." It seems to me that if a person who has responsibility for a child . . . . It's the same as getting a doctor's report directly from the doctor, not indirectly from someone else. If it's your child, you're waiting to hear the correct and accurate statement, rather than somebody's

summary of it.

I think that as a parent, if something happened to my child and somebody did a report on it, and I'd had input to that report -- because I probably would have, as part of the discussion -- then I would expect to get a direct report back immediately, not down the line someplace, after it went through a bureaucratic structure. Then it may or may not come back to me, and it may come back only partially and out of context.

It may be necessary to step this part down. I'd be happy to do that in order to have it reworded to meet that demand.

Hon. U. Dosanjh: No, the amendment the hon. member is suggesting is not appropriate. The current practice of the commission is to send letters to all parents of the children with respect to whom the commission may have conducted an investigation unless the parent or parents are implicated directly in injuring or harming the child. The practice is what the hon. member wants it to be. You can't have that in the legislation, because we want the commission to have the discretion to not send a report to, for instance, a parent if that parent is involved in harming the child. I think you have to have a balance in what you must do and what you can do.

G. Wilson: Just by way of trying to deal with the matter of provision of reports to the Attorney General, I would offer what I hope would be considered an amendment that would be in order and would speak to that issue.

Section 8(1) would read (

a) through (

e) as currently drafted. It would add a subsection (2) that would read: "All matters contained in the findings of investigation into a child's death or critical injuries that are relevant to the matter under investigation must be included in the commissioner's report to the Attorney General under

section 9(1)."

I apologize for the handwritten nature of this, but I hadn't anticipated we'd be in committee stage today.

What that essentially will do is suggest that where matters of investigation take place under

section 8 with respect to a child's death or critical injury, the findings of that investigation must be included in the report that goes to the Attorney General under

section 9(1).

Hon. U. Dosanjh: I've looked at the amendment. If the hon. member looks at

section 9(1)(b)(i), that in fact does exactly what the hon. member wishes to have happen under

section 8.

G. Wilson: With respect, I don't think it does. It says under

section 9 . . . . This gets a bit complicated, because we're really under

section 8. Anyway,

section 8 says: " . . . completing an investigation into a child's death or critical injuries, the commission may" -- it says "may"; we've discussed that and dealt with that -- "report its findings . . . . " Under 9(1)(b), it says: " . . . reports or summaries of reports made by the commission on (

i) the commission's findings and recommendations under

section 4 (1) . . . . " Well, under 4(1), once again we get back to the fact that the commission may do . . . . It's again a discretionary issue, and I raised that at the time under

section 4. Or, it goes on to say: " . . . (

a) to (

c) concerning children's deaths or critical injuries, and (ii) any responses made by ministries or agencies . . . . "

[ Page 4000 ]

What the amendment essentially speaks to . . . . It says that where an investigation has taken place, all matters that are relevant to those findings . . . . We're not talking about summaries or discretion or some oblique reference in the report. What it says is that all the matters that are relevant to those issues must be included in that report, so that we're not likely to be subject to some oblique reference or some

summary of what took place. I think what's important here is that the public is aware that through this process, not only is the work done in investigation thorough but that the report to the minister, which will ultimately be made public, will include all of the findings in detail of that report. I think that's a critical distinction between what the amendment suggests and what the minister suggests is in

section 9(1)(b).

Hon. U. Dosanjh: The amendment is obviously misplaced. If it is to be, it should be in

section 9. I just want to say, rather than playing around with it, that it is really unnecessary; it's unwarranted. So far the commission has made reports, both public and to me. In fact, if the hon. member has seen the summaries of the reports put out yesterday, those summaries contain all of the important details that can be provided, subject to FOI. The reports' summaries contain all of the findings of the commission.

I believe that there has to be a measure of discretion vested in the commission to do its job, and if there are problems at the end of the day, we'll be here in six to eight months, and we can deal with those. I just think that we need to have -- while we try and inject a measure of confidence in the way we deal with children -- a certain measure and trust and confidence in the ability of the commission, under the legislation, to do its work within its broad discretion and mandate. I think we should leave it at that at this point.

The Chair: Hon. members, on the strength of the point made by the minister, I'm going to rule that that amendment is out of order in this section.

V. Anderson: I was just wanting clarity. Is the minister bringing in an amendment himself or not? Just so we know.

Hon. U. Dosanjh: Yes. I move that

section 8(

a) be amended by striking out "the parent" and substituting "the child's parent" in its place.

On the amendment.

V. Anderson: The amendment is changing "the parent" to "the child's parent." Could the minister explain the significance of that change?

Hon. U. Dosanjh: That is simply for consistency in drafting, which we are trying to achieve.

Section 10(2)(

b) refers to the child's parent, and the intention is the same in

section 8(a). It refers to "the parent," and we simply want to say that it should refer to "the child's parent."

V. Anderson: Either way, I would ask the same kind of question, which has to deal with the definition of "parent" in the Child, Family and Community Service Act. Parent is defined as: " . . . (

a) the mother of a child, (

b) the father of a child, (

c) a person to whom custody of a child has been granted by a court of competent jurisdiction or by an agreement, or (

d) a person with whom a child resides and who stands in place of the child's mother or father . . . . " So what I'm asking, first of all, is: does that definition of parent (a), (b), (

c) and (

d) still apply as whichever one of those is relevant? So it's the child's "parent," which might be any one of these four.

Hon. U. Dosanjh: Yes.

V. Anderson: If that implies . . . . Just to give an illustration of the implication, if a child is in the custody of a foster care home, which has been granted by a court or by an agreement of the ministry, or if a child resides with a person who stands in place of the child's mother or father during the time they're in foster care, is the foster parent who's looking after the child -- say for a year or two years or five years, whatever the case may be -- included as the child's parent under one of either of these (

c) or (

d) definitions?

Hon. U. Dosanjh: That definition in the Child, Family and Community Service Act makes it very clear that a caregiver is not a parent within that definition, and the caregiver will not get that report.

[8:30]

V. Anderson: What other persons, then, might be covered by (

c) or (d)? They're not the mother or the father of the child and, as you say, a caregiver is not covered. Who would be other persons who would fit the description of (

c) or (

d) if they're not a caregiver?

Hon. U. Dosanjh: In 8(c) . . . . Obviously the director means "a director designated under the Child, Family and Community Service Act or the Adoption Act," so that has a very specific meaning.

The foster parents -- if that's what the hon. member is concerned about -- may in fact get that report through 8(d), which says: " . . . the ministry, agency or person that is the subject of the recommendations." The foster parents, or parent, may be the subject of the recommendations and may get a copy of that report. Otherwise, it wouldn't go to the foster parent.

V. Anderson: I can appreciate the minister's comment, but I'm still curious to know: what kind of persons would (

c) or (

d) apply to? Who would (

c) or (

d) apply to, and what is the distinction between them? If they're not living with a caregiver, who are the kinds of people that (

c) or (

d) applies to? What's the meaning of (

c) or (d)?

Hon. U. Dosanjh: Is the hon. member talking about 8(

c) in Bill 23 or (

c) and (

d) in some

section of the Child, Family and Community Service Act?

V. Anderson: I'm asking about the definition of "parent," which is in the Child, Family and Community Service Act under "Definitions." The definition of "parent" is: . . . "(

a) the mother of a child, (

b) the father of a child, (

c) a person to whom custody of a child has been granted by a court of competent jurisdiction or by an agreement, or (

d) a person with whom the child resides and who stands in place of the child's mother or father . . . . " The minister has indicated that that's not a foster parent and it's not a caregiver. So I'm asking: who does (

c) and (

d) apply to as a parent?

Hon. U. Dosanjh: It could obviously apply to the directors that I have indicated. It could apply to XYZ, who may

[ Page 4001 ]

have custody of the child. It could be an aunt, uncle, grandmother. It could be anyone who has legal custody of the child at that given time.

Let me just clarify -- and I understand this correctly -- that foster parents, when they are providing care for children, are not the legal custodians, legal guardians of the children. They do not get legal custody. Custody vests and resides with the director.

The Chair: The first amendment was ruled out of order; the second amendment proposed by the Attorney General is before us now.

Amendment approved.

section 8 as amended.

G. Wilson: We slipped by very quickly as to . . . . The Chair ruled that the amendment was out of order. I didn't understand why it was out of order, other than the fact that the Attorney General wasn't going to vote for it. That doesn't make it out of order. He's certainly prepared to vote against it.

The Chair: Hon. member, if you wish an explanation, I ruled it out of order because the Attorney, who knows about these things, said it was in the wrong section. On the strength of that point, I ruled it out of order for

section 8.

G. Wilson: Just let me get over my mystification on that ruling for a moment. Let me say that the only other question I have with respect to these reports and where these reports are going to be filed is that it suggests under 8(

e) that this report may be available to "the child, if the investigation was into injuries sustained by a child who was 12 or more years of age when the investigation was completed."

I wonder if the Attorney General might tell me whether or not 12 has a legal significance in this, or whether it is something that is more consistent with other policies within the child and family relations act. There is considerable debate now with respect to when the child has the legal right to information. There is not a consistent age throughout the legislation.

Hon. U. Dosanjh: As we discussed earlier with respect to the Child, Family and Community Service Act, age 12 has a certain significance. At age 12 you're able to enter into agreements and you're considered to be of certain wisdom -- if I can use usual terms -- and to be able to receive information and to make some decisions. That's why if there is a report, and if you are 12 and over, that report may be made available to you by the commissioner.

G. Wilson: Just one last question on that: can a 12-year-old child then make a request? I know that with respect to a complaint procedure -- "Notice of complaints," under

section 12 -- there is a proposition for complaint. But with respect to a request, is it anticipated, then, that a request can be made? There doesn't seem to be anywhere in this

section where a child may actually request information with respect to such a report. It seems discretionary to the commission.

Hon. U. Dosanjh: There is no

section in this legislation whereby you could so-called officially request a report, but anybody could ask for the report, and the commissioner would then make a decision as to whether or not it should be made available.

Section 8 as amended approved.

section 9.

G. Wilson: I'm tempted to move my amendment, which would clearly be in order in

section 9, but I'm not going to, because I think that we can maybe get the minister on record here, and hopefully that will suffice.

I am concerned with respect to what is included in the reports. I have had an opportunity to review the reports that the Attorney General made reference to earlier on, and I agree: they are fairly thorough, and I think they are fairly detailed.

I'm more specifically interested in

section 9(2) and

section 9(3) and what that might entail.

Section 9(2) says:

"In addition, the Children's Commissioner may present a special report to the minister or comment publicly about a matter relating generally to the work of the commission, if the Children's Commissioner considers it necessary to do so."

I'm assuming that those reports are not tied to the annual report. These are additional special reports that are quite independent of that.

It then goes on to say that a report or

summary under subsection (1) or (2) may include recommendations respecting various measures of principles and legislation and so on. I'm curious about that, because under

section 9(5) it says: "A report or

summary presented to the minister under subsection (1)(

b) or (

c) must be made public within 30 days . . . . " I wonder if it's intended that the same latitude be extended to reports that may come under

section 9(2) or 9(3) -- if these special reports are made to the minister, whether or not they also will be made public, or if it's intended. The language is quite specific here that the 30-day presentation to the public makes very clear reference to subsections (1)(

b) and (c). It's actually "(1)(

b) or (c)," which I'm assuming is inclusive. But it doesn't make reference to special reports, particularly those that may advocate a legislative amendment to protect children.

Hon. U. Dosanjh: In fact, the legislation reflects the intent quite correctly. Of course, when the children's commissioner may do special reports, they may be done of the commissioner's own volition. The commissioner may, in fact, provide advice to cabinet on what amendments to make to a particular piece of legislation. That advice may have been sought in the first place by a minister, as well. That's why there is no provision for mandatory publication of those reports.

However, if the commissioner chooses to make those reports public, I don't believe anyone who says she couldn't do it. Obviously the Attorney General could choose to make those reports public as well. But I think there is that discretion just in case there is some advice that's being sought by a minister -- not with respect to a particular matter that has been investigated but with respect to a general issue. It's relating to general issues. That's why I think it's important that this discretion be there.

G. Wilson: Just to make this absolutely clear, my understanding of the reading -- and the minister can tell me if I've read this correctly -- is that any report with respect to untimely death or injury or matters relating to an incident affecting a child's death or injury will be included in the reports that are obliged to come to the Attorney General under sections 9(1)(

b) and (c). That's my understanding.

The special reports that we're talking about, where there is no obligation for public disclosure, deal more specifically

[ Page 4002 ]

with special reports that may be done with respect to internal administration changes, the kinds of things we talked about in an earlier section, where the commission in fact could -- I think I used this word -- "watchdog" what's going on inside. So it's not intended in this section. This has caused some concern among a few people who read it. It's not intended here that there could be an opportunity for the use of subsection (2) or subsection (3) under

section 9 to simply hide these reports from the public. All matters relating to a death or injury are included in the reports that must be public.

Hon. U. Dosanjh: The hon. member's view is correct. The reports that are described by the hon. member must be made public. There is no question whatsoever. The reports that may not have to be made public are reports, for instance, about a matter relating generally to the work of the commission. That's the subsection 9(2). That's important to remember. But the reports about critical injuries or fatalities or a report sought by a minister about a specific matter would have to be made public.

[8:45]

Section 9 approved.

section 10.

G. Wilson: Just a couple of quick questions on 10. It talks about the breach of the rights of the child under

section 10(1)(a). Then it says: "The complaint may be made by . . . the child." It says here, in the

definitions that " 'child' means a person under 19 years of age." Does the 12-year-old cutoff apply to the right of the child to file a complaint? Or can a child nine years old, for example, file a complaint -- or younger?

Hon. U. Dosanjh: Any child who has the capacity to make a complaint may make a complaint, and the commission would consider that complaint as it would any other complaint.

V. Anderson: In 10(1)(

b) it says a person may make a complaint "subject to the regulations and any enactment respecting appeals, about a decision concerning the provision of a designated service to a specific child." I find it difficult to understand that meaning in the first place. Then, when we turn over to 29(2)(e), the Lieutenant-Governor-in-Council may specify types of decisions that may be the subject of a complaint under

section 10(1)(b). So I find it difficult to understand the meaning of

section 10(1)(b), and doubly so when I refer it to

section 29(2)(e). So I'd be helped with an explanation of first the one and then the other.

Hon. U. Dosanjh:

Section 29(2)(

e) simply indicates that there would be, by regulation, enumeration of designated services or designated decisions with respect to which complaints could be made. So that's pretty simple.

With respect to

section 10(1)(b), "A person referred to in subsection (2) may make a complaint to the commission subject to the regulations and any enactment respecting appeals . . . " and, of course, subject to the regulations made under either this legislation or any other legislation, or subject to appeals with respect to any other legislation, as well. There may be appeals available under that legislation.

If I am correct, what it means with respect to appeals is that before a complaint could be heard, one needs to exhaust one's remedies of review and possibly other issues under those pieces of legislation under which the particular institution may be operating.

V. Anderson: I'm not entirely clear, but I'll leave it at that. I'm not sure I can get it any clearer at this point.

I would ask, too, about

section 10(2)(c): " . . . any other person representing the child." What's the meaning of the word "representing"?

Let me give a number of illustrations and see if any of these apply. Does that apply to a school teacher whose complaint is on behalf of a child in her class? Does it apply to a neighbour who is concerned that nobody else is speaking up for the child? Does it apply to a caregiver who's concerned about the well-being of a child or to any other person representing the child? Do any or all of these categories apply?

Hon. U. Dosanjh: In fact, that is the subsection that gives me the most amount of comfort. That simply means that anyone who knows about a difficulty with respect to a child can come to the commission and make a complaint. And of course the commission will then decide, on the merits, whether or not to accept the complaint and proceed with the investigation.

Section 10 approved.

section 11.

V. Anderson: Maybe the minister referred to this a few minutes ago with respect to the previous question.

Section 11(1)(

a) says: "The commission must refuse to accept a complaint . . . if, in the commission's opinion, an internal review process of a ministry or agency is available to deal with the complaint and that process has not been exhausted."

I can understand that an internal review might want to go on first, before the ministry got involved. But in cases that we've had in the past, internal reviews have gone on month after month and year after year, and they've not been exhausted. Does this prevent the commissioner from stepping in and saying that the internal review is not getting done appropriately and properly, or must they wait until that internal review is complete no matter what?

Hon. U. Dosanjh:

Section 11(1)(

a) says: "The commission must refuse to accept a complaint . . . if, in the commission's opinion" -- those are the important words -- "an internal review process of a ministry or agency is available to deal with the complaint and that process has not been exhausted." So if you bring a complaint to the commission and there is an internal process going on . . . . It may not have been exhausted theoretically, but you may come to the commission, and the commissioner may look at that complaint and say: "No, I'm not going to give this agency any more time.

They are effectively not dealing with this issue, and I'm going to investigate." So at the end of the day, that mandatory refusal is based on the commissioner's opinion, and that opinion has to be an informed opinion. It's not an automatic refusal if there is another process available.

V. Anderson: I appreciate the minister's comment. I would ask for the distinction between (

a) and (b), where an investigation is going on through a court or tribunal, and then under subsection (2), the commission has the option to hold the complaint until the other investigation is completed. Why would the same option not be available in (

a) as it is in (b)?

[ Page 4003 ]

Hon. U. Dosanjh: The same option is available. With respect to (b), it's very clear that that's a process that may be before the court. Therefore that is treated differently. I think that at the end of the day, the commissioner could in fact . . . . As a lawyer, let me just tell you that in (b), theoretically, the commission could investigate even if the matter is before the court -- I beg to differ with the advice that I'm getting -- or the court has made a decision with respect to it. But it may also defer, obviously. So the commission has the option of looking at that and saying, "We're going to investigate," or "We will defer," depending on how well the matter is being dealt with.

V. Anderson: I would have no problem if 11(2) read, "Instead of refusing to accept a complaint under

section 1(

a) or (b), the commission may defer," because then it would say it could defer in either case. When it only refers to (b), the implication is that it can refer under one but it can't under the other.

Hon. U. Dosanjh: This is somewhat of a complex matter, so let me just try to be as simple as I can.

The argument is being made that if the matter is being dealt with or has been dealt with by a court or if the investigation or dispute resolution is in progress under another law, someone may argue that the commission no longer has the jurisdiction. By putting

section 11(2) in, it clarifies that even if the matter is deferred, the commission doesn't only have the option of refusing under those circumstances, it has the option of deferring the matter and preserving the jurisdiction to deal with the issue even after it may have been dealt with under another law, before another tribunal or before a court.

G. Wilson: I agree with the Attorney General because he knows about these things, and I'm sure he's right.

My concern is under

section 11(1)(b). The wording actually is "or a decision has been given by a court" -- i.e., a court has given a decision. Now, I'm hoping that what I'm hearing from the Attorney General is that such a decision, if it's a matter, and the complaint surrounds a custody issue, and therefore a court has ruled, and it's deemed that the decision by the court has been a bad decision -- as rare as I'm sure that would be, and I'm being just a little facetious here . . . . In a sense, a poor decision has been taken and a complaint is filed. Now, what I'm hearing the Attorney General say -- and I hope he's correct -- is that this

section would not preclude the commission from hearing a complaint on that matter with respect to a custody issue, if it's deemed that the interest of the child is affected by what the court has decided to do.

[9:00]

It would strike me that the commission -- and it's a perfectly logical thing for them to do -- should have been able to look at that process and procedure and make some recommendation with respect to it if there is a legitimate complaint with respect to the child.

Hon. U. Dosanjh: Obviously the commission cannot overrule a court decision. However, the commission can and may consider the information or matter that may have been considered by the court in the process of arriving at a decision, and deal with the issues.

Section 11 approved.

section 12.

V. Anderson: In

section 12, I have a concern out of our past history of dealing with complaints. Let me just set the circumstances. A complaint is laid concerning a child with regard to treatment by their parents or whatever, and the child is taken and placed in the care of the ministry, and then we get caught up in the court trying to deal with this. One of the results is that there is no direct representative for the child in between the two systems. That's been an ongoing concern.

What I'm asking about is . . . . If a complaint is about a breach of rights of a child in care, the director caring for the child, which is one side of the issue . . . . In the case of a child that's over 12 years of age or even under, there's no provision for somebody that's speaking directly for the child -- a legal representative or someone who's speaking for the child and who will stand up for the child's benefit at this point.

That's been a major concern which we hope might have been resolved by the advocate having the ability for legal counsel when needed for the child. But there's a major concern here. When a complaint comes, the child is caught in the middle, between the different functions of the ministry trying to do what's right or the family trying to do what's right. Nobody's speaking directly on behalf of and with and to and for the child. That's a complaint here that I sure hope can be covered.

Hon. U. Dosanjh: The regulations have already been developed, in the hope that this legislation would pass, and those regulations would enshrine in them a process whereby the child advocate would be advised with respect to every complaint that is accepted by the commission. The child advocate could then decide on her own as to whether she would participate in the process, or she may believe that there is someone else who is a more natural advocate who could be present and represent the child in the investigation.

V. Anderson: I'm very pleased to hear that, because that's been a major concern.

Does the child advocate have available legal representation on behalf of the child when it's needed in those cases?

Hon. U. Dosanjh: I think the question of legal representation is somewhat complex. For purposes of investigations by the commission, one would not, I hope, require a legal advocate for the child. In a sense, the commission, in addition to being an investigatory body, is also an advocate for the children as a whole. But the question of legal representation is more complex, and of course the child advocate may have her views on that, as well.

Sections 12 to 14 inclusive approved.

section 15.

V. Anderson: I'm just wondering, when the tribunal or the panel -- I'm not clear which -- has made its decision, is that decision final? Does it go anywhere else from there, or is it a final decision once that decision has been reviewed and dealt with? Is that a final decision, or is any other review possible?

Hon. U. Dosanjh: Of course, the process is listed in

section 16 and, as I've indicated earlier, is essentially as follows. Subsequent to the investigation, the commission makes its recommendations with respect to a particular ministry. The ministry has 30 days to respond. If the ministry isn't following

[ Page 4004 ]

the recommendations and has not made an appropriate and adequate response, the commission then makes a report to the Attorney General, indicating that that's happening, and all of that is made public. That's the essence of what happens.

Sections 15 to 17 inclusive approved.

section 18.

V. Anderson: Under 18(1)(a) . . . . I indicated to the minister earlier, in second reading, that I couldn't help but ask about the children's commissioner's remuneration being "at a level that equals or exceeds the amount to a deputy minister." I could understand the "equals," but I was curious about the "exceeds" -- why it's there and where the upper limit is. Maybe they need it -- and I think the work they do should be equivalent at least to the Premier's -- but I'm just curious to know about this wording.

Hon. U. Dosanjh: It's about 9 o'clock. I don't want to talk about people's salaries, but it is tempting. The remuneration is established at that level, or exceeding that level, as mentioned, to make sure that this position is seen as equivalent to an officer of the Legislature. That's why the remuneration may exceed that of a deputy minister.

Section 18 approved.

section 19.

Hon. U. Dosanjh: Those are guidelines established by PSERC with respect to consultants, which the commissioner will be following.

Section 19 approved.

section 20.

Hon. U. Dosanjh: I move the amendment to

section 20 that is in the possession of the Clerk.

[SECTION 20, in the proposed

section 20(1)(

a) by deleting "section 29(2)(h)," and substituting "section 29(2)(g),".]

Amendment approved.

Section 20 as amended approved.

Sections 21 to 26 inclusive approved.

section 27.

G. Wilson: We were on a bit of a roll there.

This

section is with respect to reprisals. I'm aware that a regulation is presumably going to be introduced, which would have some relevance, I'm assuming, to this section. With the minister suggesting a few minutes ago that the regulations were already written, it tempts me to wonder if you'd like share that with this side so we could read them at this point. That would be kind of useful.

My concern is that this is easier said than done. Basically, what it says is that you can't seek reprisals against people who lay complaints, especially children. This really is a critical issue. A lot of children who are in bad situations are intimidated beyond their ability to actually come forward and lay a complaint. Simply having wording that says that you're not allowed to seek reprisal if they should lay a complaint is not going to be enough, I don't think, unless the minister can tell us that there is, by regulation, some penalty that can be exacted.

I'm looking at what it suggests here. It says a person mustn't do it, and it says: " . . . makes, or is the subject of, a complaint . . . gives information . . . . " and so on. The issue of the actual penalty is something that we want to hear from the minister on.

Hon. U. Dosanjh: That's the next

section --

section 28(1)(c) -- which refers to

section 27(1) or (2). There would be a maximum of six months in jail and/or a $2,000 fine. It would be an offence, as is indicated in

section 28.

[9:15]

G. Wilson: Forgive me if I'm reading to keep up with this, because I didn't read that here. What the minister is saying is that it's defined by regulation.

Hon. U. Dosanjh: Under the Offence Act.

G. Wilson: Oh, I'm with you. Essentially what you're saying is that

section 5 of the Offence Act applies, and that provides the level of penalty. Is that what I'm hearing? I have the Offence Act somewhere in here. Maybe what I need to do is review that. I'm assuming that

section 5 of the Offence Act stipulates the penalty. I don't actually have that

section in front of me. I've got just about everything else, but not that.

Hon. U. Dosanjh:

Section 2 of the Offence Act, which of course is not reprinted here, indicates that if you are guilty of a specific offence under a statute, then you face a penalty of six months and/or a $2,000 fine.

Section 5 is a

section that talks about general breaches of various statutes, and we don't want that to apply, because we created a specific offence or offences under this legislation to which the Offence Act would apply automatically, as per

section 2 of the Offence Act.

G. Wilson: Maybe it's just getting late, and I can't read. I don't see anywhere where it makes reference to

section 2 of the Offence Act, and if you can just point out where it is, I'll sit down.

Hon. U. Dosanjh: The reference is not needed.

Section 2 of the Offence Act speaks to all the specific offences that are created by statute. That's

section 2 of the Offence Act.

D. Symons: Somewhat along the same lines, I had some concerns. I did notice the connection between

section 27, which we're now discussing, and

section 28. I felt that there might be somewhat of a contradiction there, because in

section

[ Page 4005 ]

it provides . . . . It's

section 28(1)(b), and I know I'm talking to that, but let's just come back to

section 27 if you don't mind. It refers to providing false or misleading information, but certainly

section 27(1)(

a) would imply that if it's a child, there is no provision for anything if a child provides any false, misleading or malicious information.

My concern is the way that 27(1) is worded -- that, indeed, you must not in any way discipline. Teachers are particularly at risk -- having been one for years -- of a student, who they might tick off for one reason or another, laying a false charge against the teacher. What it basically says here is that you can't do anything -- coerce, intimidate or discipline. Can you at least correct their behaviour somehow? I'm just wondering if that is an intentional part of this particular act or if I'm misreading it.

Hon. U. Dosanjh:

Section 28(1) says that a person who does any of the following commits an offence, and obviously (a), (

b) and (

c) then enumerate those offences. A person would include a child, so if you are 16 years old, you're under 19 and are a child in the definition of this legislation. Obviously, if you provide false or misleading information, you could be charged. A child who knowingly makes false representation and causes an investigation to happen would face similar penalties.

D. Symons: Not to press a point, but doesn't

section 28(1)(

c) then negate what you've just said?

Section 28(1)(

c) says that anybody who commits an offence contravenes

section 27(1), which says you must not "discharge, suspend, expel, intimidate, coerce, discipline or impose a financial or other penalty on or otherwise discriminate against a child because the child" lays a complaint under the act. There seems to be the possibility, I think, that there can be some misinterpretation from what you said a moment ago. No?

Hon. U. Dosanjh: There is no possibility of any misinterpretation. Sections 27(1) and 27(2) are directed at individuals who might try and intimidate children or interfere with children lodging complaints. What I have indicated to you is covered by

section 28(1)(b). The other two offences, 27(1) and 27(2), are covered in

section 28(1)(c), and they are separate and apart. I don't know how one could argue that when we punish someone for impeding an investigation, interfering with an investigation or coercing a child . . . . How that would ever be a problem in terms of this particular section, I don't see.

D. Symons: I'll just try it one more time, and then I will give up on it.

Section 27, towards the end of (1), says: " . . . otherwise discriminate against a child because the child" -- we're talking about a child, not an adult, committing an offence here -- "(

a) makes, or is the subject of, a complaint under this Act." And we'll take the "makes" aside for a moment. The child makes a complaint. My concern is that this child makes an intentionally false complaint. I'm not too sure whether, by the wording of 27(1), there is absolutely anything at all that can be done to correct the behaviour of that child by what follows in 28. You're saying it's somebody doing it to a child. I'm saying it's a child doing it here, because it says: " . . . the child (

a) makes . . . a complaint under this Act." Part (1), then, says that this child must not be in any way disciplined.

Hon. U. Dosanjh: Sections 27(1) and (2) simply protect a child from being disciplined, suspended, expelled and the like if the child chooses to make a complaint to the commission. So 27(1) and (2) are for the protection of the child.

Section 28(1)(

b) is to penalize the child, possibly, for misleading or improperly causing an investigation to happen. Those two are separate and apart from each other.

G. Wilson: Really quickly, I've now had a chance to read

section 2 of the Offence Act, which basically says that if you're guilty, you pay. It doesn't stipulate what "pay" is. These probably aren't the consolidated statues, and maybe there's an amendment. Could the minister just restate what the penalty is? I heard six months and I heard a fine. Could the minister just tell us what the penalty is for anybody who is seeking reprisal against a young person who lodges a complaint? Under

section 2 of the Offence Act, it just says that if you're guilty, you pay. At least that's what it said in the book I just read.

Hon. U. Dosanjh: If the hon. member will read some further sections, he will find what you pay. I believe that what you pay is a maximum of six months in jail and/or $2,000 in fines. That's all in the Offence Act.

V. Anderson: I must follow up on my colleague's question. I recognize that teachers, for instance, are having trouble in school at the moment. Say a youngster in grade 6 lays a complaint against another youngster or against a teacher, as the case may be. One of the struggles of the police in many court cases at the moment is that they lay a complaint or they do something, and they're out as quickly as they're in. But in school, in the class, the teachers have some way of discipline. They have some way of saying: "If you continue to say these things to your fellow classmates, there will be some discipline for it.

You may be expelled from school for a week or a month." I think the concern here is that if we're not careful, we'll give the children an out which they can misuse.

On the other hand, if they're honestly laying a complaint, they should not be punished for that honest complaint. But if they're mischievous or doing harm with the complaint on purpose because they know they won't be punished for it, that's the concern that we want to make sure is covered.

Hon. U. Dosanjh: I think the confusion is arising in the minds of the hon. members because the hon. members believe that the teachers and the parents should be able to discipline a child who may, in simple language, lie to the commission.

What I suggest to the hon. members is that there is a process in this legislation which says

section 27(1) protects a child who makes a complaint from being expelled or disciplined because the child makes that complaint. So there has to be that connection.

Section 27(2) protects another person who is not a child, who may make a complaint about a child having problems.

Section 28(1)(b), obviously, is the one that deals with a child providing false information and the like to the commission. The child would, of course, then face the consequences.

Now, what you're confusing all of this with is that you want to have this separate authority as parents, as school teachers, to discipline a child for dealing with the commission. I suggest that this ought not to be done, because the commission is like a court for a child. A child ought to be able to independently, without any fear of reprisals from anyone, go to the commission and only face the consequences if the child is falsely causing the commission to investigate. I think that's very clear. I don't see a problem.

[ Page 4006 ]

Section 27 approved.

section 28.

D. Symons: Just one more question on the very issue we were discussing up to the moment. That is, when we get down to 28(1)(c), it talks about . . . . You're committing an offence if you contravene

section 27(1).

I have to ask, then, what takes precedence: what you just said a moment ago, about 28(1)(

b) allowing the punishment to take place by the authority, or 27(1) that says there cannot be any punishment? Once you put 28(1)(

c) there, you've now negated, in a sense, what you said for 28(1)(

b) just a moment ago, because it goes back to 27(1) that says you cannot punish a child in any way, whether the complaint is true or false.

Hon. U. Dosanjh: I'm sorry if I caused further confusion.

Section 28(1)(

b) does not allow anyone, including the commission, to penalize a child for falsehood. Only a court of law would be able to do that.

D. Symons: Does 28(1)(

c) allow that, as you're saying, the commission can do it, then?

Section 28(1)(

c) says: "A person who does any of the following commits an offence . . . " by contravening the

section 27(1) we were talking about. So does that exclude, then, the commission from following through with the discipline you were saying that they can do under 28(1)(b)? In 28(1)(b), you're saying they can do it. But I'm just concerned that 28(1)(

c) says nobody can do it. You're telling us that 28(1)(

b) says the commission can, and I have no problem with that.

[9:30]

Hon. U. Dosanjh: I'm sorry if I misled you into believing that the commission is going to find people guilty. I assumed we all knew that at the end of the day, it's a process that happens before the courts in British Columbia. So under 28(1)(a), (

b) and (c), the court will adjudicate, not the commission. Does that assist at all?

Section 28 approved.

section 29.

Hon. U. Dosanjh: I move the amendment to

section 29 that's in the possession of the Clerk.

[SECTION 29, in the proposed

section 29(2)(

f) by adding "or dismiss" after "terminate".]

Amendment approved.

section 29 as amended.

G. Wilson: Since this is the power to make regulations, and it stipulates a whole host of regulations which the minister tells me are already written, I just wonder when those of us on this side of the House might get a chance to read them. Not that we would want to debate them tonight, although there is time, but I'm just wondering if we might get a chance to review them at some point.

Hon. U. Dosanjh: I can tell the House that some of those have been written. I'm told that even the cabinet hasn't seen them; I haven't seen them. I was just advised of the one that there was some concern . . . . And I indicated that there would be regulations with respect to the child advocate being informed on a regular basis with respect to complaints as they originate. So all of the regulations have not been drafted, and, of course, I haven't seen them, either.

Section 29 as amended approved.

Sections 30 to 34 inclusive approved.

section 35.

G. Wilson: I guess the simple question is: why? I look at

section 3(1) of the Freedom of Information and Protection of Privacy Act, and I see that essentially it suggests that the act "applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following . . . . " And you're adding that it doesn't apply to these records that are created . . . . I'm curious to know why.

When I look at the nature of what is excluded under the information and privacy act, it looks pretty straightforward as to why this wouldn't be included -- what's in the act. But then when you look at what you're excluding here also, you're saying: " . . . a record that is created by or for, or is in the custody or control of, the Children's Commission and that relates to the exercise of the commission's functions under the Children's Commission Act." Well, it would strike me that that should be subject to an information request. I don't understand why that would be included. Why include it?

Hon. U. Dosanjh: The Children's Commission's administrative records, of course, will be subject to the Freedom of Information and Protection of Privacy Act. There's no question about that. This provision, if enacted, will afford the same protections as the officers of the Legislature for the Children's Commission's operational records. The security of records was a major concern for the Ministry for Children and Families, as the child protection files would otherwise be susceptible to third-party reviews beyond the Children's Commission's determination of appropriate inclusion of case-specific information in the public reports.

The third parties who could not get this information under the Child, Family and Community Service Act would attempt to get it from the Children's Commission. This is to protect and preserve the privacy and the rights of children, essentially, and families. So you have the same disclosure requirements as an officer of the Legislature and the same protections available to the information that is in the possession of the commissioner as a result of the investigations and the work it does.

G. Wilson: So does the language mean . . . ? I mean, I would agree with that. I don't take issue with what the minister has said; it just didn't read that way to me. When it says "exercise of the commission's functions under the Children's Commission Act," does that also imply . . . ? Are we talking about functions inclusive of the individual records bank, then, that they would have -- the individual records that they would have? It seems to me that "the exercise of the commission's functions under the Children's Commission Act," in terms of the operation of the commission . . . . I think maybe the confusion is around the word "functions." What exactly is meant by that word?

Hon. U. Dosanjh: I understand that this is the wording that the legislative counsel has drafted to make sure that the

[ Page 4007 ]

administrative records are disclosable, but their operational records are not. This is what this language is supposed to accomplish. I'm not an expert on FOIPPA, either.

G. Wilson: If I look at the current act, the Freedom of Information and Protection of Privacy Act, under

section 31, which is the reference here, and I look at all that is included in that list from (

a) to (i), most of it deals specifically with written records in one form or another -- whether it's archival records, teaching materials -- and it talks about personal notes from a justice or someone in a quasi-judicial capacity, all of those sorts of things. Yet what we're dealing with here is a record that's created for the commission, which relates to the exercise of the commission's functions. So essentially this is not a record on the basis of an individual account nor a record of any specific data that relate to individuals, as I understand it.

But rather, this is a record of the performance of the commission, as I read this, and I don't understand why we would not want that to be open to public scrutiny.

Hon. U. Dosanjh: If one used words such as "management" and "educational work" and "advocacy work," and if all of that came under the administrative records, I think that's disclosable. But all of the records that are created in relation to the exercise of the functions, such as investigations, reviews, and all of the information and data that are collected with respect to the individual files -- that is not disclosable. I understand, and I'm led to believe by the legislative counsel sitting next to me, that this is the language that accomplishes that so that privacy is protected.

G. Wilson: Okay, so we can take comfort in the fact that if we want to find out about matters with respect to general administration, function and operation of the commission itself, excluding individual case files and those sorts of things, all of that will be available. The only thing protected here is the specifics of individual cases, and I can understand why you'd want to do that. Clearly there is a need to protect the rights of children and families. If that's what I'm understanding, then I guess my objections are satisfied.

Hon. U. Dosanjh: That