Third Session, 41st Parliament

(2018) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Tuesday, November 6, 2018

Afternoon Sitting

Issue No. 180

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Orders of the Day

Second Reading of Bills

Bill 53 — Recall and Initiative Amendment Act, 2018 (continued)

On the amendment (continued)

J. Isaacs

On the main motion

J. Yap

Hon. A. Dix

Hon. D. Eby

Committee of the Whole House

Bill 53 — Recall and Initiative Amendment Act, 2018

Hon. D. Eby

M. Lee

J. Rustad

Report and Third Reading of Bills

Bill 53 — Recall and Initiative Amendment Act, 2018

Bill 44 — Budget Measures Implementation (Employer Health Tax) Act, 2018

Proceedings in the Douglas Fir Room

Committee of the Whole House

Bill 44 — Budget Measures Implementation (Employer Health Tax) Act, 2018 (continued)

T. Redies

Hon. C. James

S. Bond

B. Stewart

TUESDAY, NOVEMBER 6, 2018

The House met at 1:33 p.m.

[Mr. Speaker in the chair.]

Orders of the Day

Hon. M. Farnworth:

I call continued second reading debate on Bill 53, Recall and Initiative

Amendment Act, in this chamber. In

section A, the Douglas Fir Room, I call

continued committee stage on Bill 44, the Budget Measures Implementation Act,

[1:35 p.m.]

[L. Reid in the chair.]

Second Reading of Bills

BILL 53 — RECALL AND INITIATIVE

AMENDMENT ACT, 2018

(continued)

On the amendment (continued)

J. Isaacs:

Hon. Speaker, thank you for the opportunity to continue debate on

the amendment.

Every British Columbian should have the right to challenge an MLA

and have them removed from office — the right to a process or a

mechanism that should be available to citizens — when constituents feel

that their MLA does not represent their views or is not acting in their

best interests. The constituents of Vancouver–Point Grey are unhappy

with their MLA and, therefore, should have every tool available to them

to proceed with a recall, but clearly, the Attorney General isn’t going

to take any chances of that actually happening. Today he doubled down

even more.

It must have been difficult for the Attorney General to see so

many signs in his neighbourhood where his constituents have made their

disappointment known and have been actively promoting and engaging in a

recall campaign. There is only one recall initiated in the entire

province right now, and it is the Attorney General’s home riding of

Vancouver–Point Grey.

It’s easy to draw a conclusion as to the urgency the Attorney

General has in getting this bill through and what the underlying

motivation may be. It’s sad to say that the underlying motivation to get

this bill and amendment through so quickly, without proper debate time,

is because the Attorney General wants to make sure that those voices who

do not support him as MLA are shut down.

The Attorney General of British Columbia is shutting down debate,

shutting down the voices who don’t support him and shutting down the

resources that have been available to citizens to action a recall

campaign. The Attorney General is the chief lawmaker in this province,

and it is the Attorney General who is putting forward a bill that

directly affects him and, currently, no one else in the province. If

this isn’t self-serving enough to be in such a conflict, he has taken it

a step further — to shut down the voices in the Legislature who may be

opposed to this bill. This is why I support the amendment.

I would have expected the Attorney General to have a higher

fiduciary duty to assure that citizens, particularly the citizens he

represents in his riding, would have the legal right to initiate a

recall process if they choose. I would have also expected the Attorney

General to stand before his constituents to face their complaints in a

fair and democratic way, but this Attorney General will not even hear

the voices of his constituents, not alone the voices within the

Legislature.

If this bill passes, MLAs will be subject to a single recall

campaign. Once one recall is attempted, there can be no more during that

term of office — just another insurance clause, put in by the Attorney

General, to assure he remains unchallenged.

This government likes to shut down voices that don’t support them.

By putting in this clause only allowing one single recall campaign per

term, the voices of constituents who legitimately want to engage in a

recall campaign — perhaps for different reasons — will be shut out.

Their democratic right will be taken away. This is hardly democracy. It

is an attempt to undermine democracy and silence the voices that, under

the Recall and Initiative Act, citizens have every right to proceed

with.

A CEO has one of the highest positions in a public company and

must report to the officers and directors of the company as well as the

public shareholders. The CEO is accountable to the officers and

directors as well as public shareholders. But imagine if the CEO starts

to sense some unrest, and that unrest starts to take shape. The CEO can

clearly draw the conclusion that some kind of shareholder revolt is

underway, and the shareholders are planning to remove the

CEO.

[1:40 p.m.]

It is the right of the officers and directors, as well as the

public shareholders, to take action against a CEO if they feel that a

CEO has not performed his or her duties or is not acting in the best

interests of the company or its shareholders. That action would lead to

the removal of a CEO, and the CEO would clearly knows this.

If a CEO concludes this action is coming and tries to slip in new

company policies or tries to change the articles of the company just to

protect his or her position, everyone would see that action would be a

conflict of interest, a completely unethical and inappropriate

action.

Yet that is exactly what this Attorney General has done. This bill

also seeks to take six months off the window for recall, the six months

before a scheduled general election. This, too, limits the tools

currently available to citizens.

If that isn’t enough to deter citizens, there are restrictions to

spending limits, donor caps and advertising rules, excessive rules for

registration and disclosing funding sources, all in an attempt to

undermine our democracy one step at a time and to shut out the citizens’

voices and their right to participate in democracy.

I wonder if the Attorney General even considered that in 26 tries,

only a single recall has succeeded its goal. That’s not a high success

rate. But it seems that the Attorney General isn’t going to take any

chances in his riding and thus the urgency to get this bill passed,

ending debate today at 6:30 p.m.

Well, we on this side will stand up for citizens regardless of

past success rates for recall. Every citizen should have an opportunity

for recall if they choose to move forward with that process. It is every

citizen’s right to have the opportunity to recall an MLA. It is not the

right of the Attorney General to limit the process, eroding citizens’

democratic right to recall an MLA.

This is a bait-and-switch program that is being pushed through by

the Attorney General, the NDP and the Greens. It grinds away, step by

step, the confidence citizens should have in our democracy. Every

citizen should have a mechanism available to them to recall an

MLA.

Clearly, the campaign to recall the MLA for Vancouver–Point Grey

has got the Attorney General rattled, and he is taking action. Albeit

totally self-serving and inappropriate action, he is taking action in an

effort to preserve his position and status in Vancouver–Point

Grey.

I, along with my colleagues, will always fight to maintain our

democracy. This bill is absolutely self-serving and is just one more

step the NDP and Greens are pushing that erodes our democracy. I speak

today in support of the amendment.

[1:45 p.m. - 1:50 p.m.]

[Mr. Speaker in the chair.]

Mr. Speaker:

Members, we are considering a vote on an amendment put forward by

the member for Peace River South. Specifically, the member has moved

“that the motion for second reading of Bill (No. 53) intituled Recall

and Initiative Amendment Act be amended by deleting all of the words

after ‘that’ and substituting therefore the following: ‘Bill (No. 53)

not be read a second time now but that the subject matter be referred to

the Select Standing Committee on Parliamentary Reform, Ethical Conduct,

Standing Orders and Private Bills.’”

Motion negatived on the following division:

YEAS — 39

Cadieux

Bond

Polak

Wilkinson

Lee

Stone

Coleman

Wat

Bernier

Paton

Ashton

Barnett

Yap

Martin

Davies

Kyllo

Sullivan

Isaacs

Morris

Stilwell

Ross

Oakes

Johal

Redies

Rustad

Milobar

Sturdy

Clovechok

Shypitka

Hunt

Throness

Tegart

Stewart

Sultan

Gibson

Reid

Thomson

Larson

Foster

NAYS — 44

Chouhan

Kahlon

Begg

Brar

Heyman

Donaldson

Mungall

Bains

Beare

Chen

Popham

Trevena

Sims

Chow

Kang

Simons

D’Eith

Routley

Elmore

Dean

Routledge

Singh

Leonard

Darcy

Simpson

Robinson

Farnworth

Horgan

James

Eby

Dix

Ralston

Mark

Fleming

Conroy

Fraser

Chandra Herbert

Rice

Krog

Furstenau

Weaver

Olsen

Glumac

[L. Reid in the chair.]

M. Bernier:

If it will indulge the House…. If we could just have a five-minute

recess while we gather our notes to continue speaking on this

bill.

Deputy Speaker:

This House will reconvene in five minutes.

The House recessed from 1:54 p.m. to 1:58 p.m.

[L. Reid in the chair.]

Deputy Speaker:

The House resumes on second reading debate of Bill 53.

On the main motion.

J. Yap:

It’s an honour and privilege to take my place in the debate on

Bill 53, the Recall and Initiative Amendment Act, 2018, a very important

bill that seeks to make changes to the legislation governing recalls and

initiatives in our province. We’ve heard a number of very impassioned

speeches from colleagues on this side of the House over the last couple

of days, and I’m honoured to have the opportunity to take my spot in the

debate on this very critical juncture in our province’s

history.

This bill seeks to make very significant changes to recall

legislation at a very critical juncture in our province’s history. It

think it is very unfortunate that the amendment, which my good friend

and colleague from Peace River South had brought forward, was not

successful. That was to try to have a committee of this Legislature

review this legislation, and that is not to be.

[2:00 p.m.]

It appears that the government is bound and determined to rush

this legislation through as quickly as possible, and a dispassionate

observer would be able to see the very obvious reasons why. Why is it so

critical that this bill, this legislation, go through now? The

government is in a mad rush to get this done as quickly as possible.

Well, it’s all about timing. We all know that that is very much the

reality of life in the universe we live in — that timing is

everything.

We know that this is the week — specifically, this Friday, the

ninth of November, at precisely 4:30 in the afternoon — when the

deadline would be reached. The deadline would be reached when voters of

British Columbia, following the passage of time past 4:30 on Friday,

will have the opportunity on the following business day to initiate a

recall effort against those members of this House that had the good

fortune to be elected on May 9, 2017, last year.

As we have heard from my colleagues, there has been a lot of

neighbourhood. You just have to go through some of the main streets and

sidestreets of the Point Grey area of Vancouver to see very clearly that

there are many, many residents of that part of British Columbia who want

to initiate a recall of their MLA, who happens to be the Attorney

General.

For that member of government to introduce this legislation on the

eve of the commencement of expected recall proceedings seems to me very

problematic. On the surface…. I’m not a lawyer — I’ll admit that — but

it seems to me to put this senior minister of the Crown in a very

specific conflict. I know colleagues have asked the question, and I’ll

ask it as well. Did the Attorney General seek advice from, at least, the

Conflict of Interest Commissioner to find out if it would be a conflict?

We don’t know the answer to that.

However, we do know that the Leader of Her Majesty’s Loyal

Opposition has put forward a reference to the Conflict of Interest

Commissioner to provide some guidance here. Is there a conflict of

interest? On the surface, it would seem that there is one, where a

powerful minister is using the tools available to him to create

legislation to basically save his job.

That’s not right, if that is the case. It is the kind of behaviour

that we would not expect in our democracy anywhere in Canada and

certainly not here in British Columbia. We see ourselves here in British

Columbia as Canadians who cherish the democracy that we’ve been

entrusted with, who cherish integrity and honour in public life. I am

sure that members on that side of the House have every same expectation

as we do on this side of the House — that the honour and the ethics that

all of us hold ourselves to are so important.

We have here, prima facie, on the surface, a conflict, yet the

government is bound and determined to go rushing to push this

legislation through, invoking — as we know, the vote has passed; it’s

under public record now — time allocation so debate ends. Whatever

happens this afternoon, debate ends later this afternoon, and this piece

of legislation moves forward and becomes law, or will receive third

reading.

[2:05 p.m.]

This is very problematic. This is very disappointing. I am sure

there are people who support that side of the House who probably will

feel that. Why is this government doing this? Why is the minister doing

this, when he could well be in a conflict of interest? Well, the irony

of all of this is that it was an NDP government that brought in recall

and initiative legislation, which this NDP government is seeking to

drastically change.

The intent is very clear and honourable. If a member of this

House, duly elected, should no longer have the confidence, the trust, of

his or her constituents due to a breach in the behaviour expected and

not lived up to by that member and if the member’s constituents feel

sincerely that he or she is not representing them, they have the

opportunity through recall legislation, through this law, to initiate a

recall.

The standard is very high, as we all know. It is extremely high,

as it should be. There have been, as has been noted, 26 different recall

initiatives, recall efforts, against MLAs over the years. We have seen

every single one of them fail, even the ones that seemed to have a huge

amount of support.

Members of our previous government were the subject of recalls.

Constituents in their ridings mounted very rigorous campaigns and

efforts — town halls, grassroots campaigns, going to shopping malls,

knocking on doors to sign up people who had signed the petition to

recall members. Every single one of them failed. I would suspect that

all of those efforts could have…. Some of them were very well-supported,

with lots of people that wanted to see their MLA recalled. Fundraising

happened.

Throughout the history of this piece of legislation, there has

never been, not once, any allegation that somehow the process was

corrupted by big money, by large corporations and large unions trying to

dominate the recall process. That’s never been the case.

In every one of these 26 recall efforts that failed, ordinary

citizens got together and got organized and went around their

neighbourhoods, went around the ridings, seeking to get people to agree

to sign a petition and say: “We need to have a new MLA.” Yet all of

these were unsuccessful.

Here we are on the eve of the period of time when recalls can

driving around neighbourhoods — we see the signs — that one particular

MLA, one particular member of this House, is at risk of the beginning of

a recall effort. He now has initiated and wants to rush through this

legislation. Oh, it’s about keeping big money out of it.

Clearly, this member, this minister, is in a conflict. It is not

right that the power of government exercised by that minister…. This

member, who’s potentially at risk of the initiation of a recall effort,

is misusing that power — dare I say abusing that power — by bringing

this legislation forward and rushing it through the way that it’s being

done. It’s not right.

[2:10 p.m.]

I have a feeling a lot of people who support the NDP, who believe

that they were an ethical party with high standards, are probably

thinking: “What has happened to my party?”

Interjection.

J. Yap:

Well, there might be some, yeah. There might be some, and I

suspect that those folks are very disappointed with what is

happening.

You know what? I’ve had the privilege of being in this House for a

number of years, and I remember sitting on the other side and listening

to this group who are now in charge when they were sitting on this side.

They had so many occasions to wax eloquent about how ethical they were

and how high a standard they represented in the way they would do

things.

British Columbians, last year, by the slimmest of margins, said:

“Okay, we’ll give you a try.” So the keys to government were handed to

the NDP, who held themselves up to be paragons of ethics and integrity.

And this is what we have.

Within 16 months, we have come to this stage where a minister is

seeking to save his job. He actually…. The odds of a successful recall

in Point Grey are probably very slim, but with this change that the

government is seeking to push through tonight, it will reduce the odds

to virtually impossible.

Interjections.

Deputy Speaker:

Ministers.

J. Yap:

You know what, Madame Speaker? It’s okay. The other side are

chirping. It probably means that…. I’m glad they’re listening. It also

means that maybe there’s a sliver of truth here that they are seeing,

and they’re chirping. And you know what? They have the opportunity to be

involved in the debate, too, and I welcome the Minister of Labour. I

enjoy hearing the Minister of Labour from time to time. Maybe he would

share with us his vision and his view of ethics and conflict of

interest. I would welcome that.

Getting back to the bill, what we have here is an abuse of power.

We had hoped that the government would see, from our reasoned amendment,

which now has failed, that actually it would not have been a bad idea to

have a bit of time to reconsider, to look at the ramifications of what

was being proposed in this legislation.

One of the changes that we’ve heard about but is so egregious it’s

worth repeating here to get it clearly on the record…. That is this.

This bill will change the opportunity for citizens to initiate a recall

if they’re not the first one.

We know that that change can and will lead to friendly recall

efforts that will spring up, probably starting sometime Tuesday morning

after the long weekend, when friends, friendlies of MLAs who might be at

risk of a recall, including the member from Point Grey, could initiate a

recall. That, if it’s accepted by Elections B.C., would be the only

recall effort that would be allowed.

One can only imagine how that would play out, where the recall

petition is approved and then nothing happens. There’s no door-knocking.

There are no town halls. There’s no advertising. There’s no effort.

Nothing happens, and after 60 days, it fails miserably, and oh, life

goes on.

[2:15 p.m.]

That is unacceptable. It is unacceptable, and this side of the

House will make sure — through debates in this House for the rest of

this afternoon, through talking to our constituents, through social

media, through the mainstream media — that British Columbians understand

what that side of the House, the NDP government, what the member from

Point Grey is proposing to do here, which is to protect himself as the

risk of a recall is about to commence.

I have a feeling that the people of British Columbia, when they

understand what is happening, will be outraged. Maybe a recall effort

will fail miserably, as all 26 of them have, but wait and see what

happens at the next election. I think the people who want to do a

recall, when they see that their opportunity has been stifled by that

government, by that member from Point Grey, they’ll have a long memory.

They will remember why they are proposing to do these recalls,

especially with regard to that riding and that member.

The broken promises, the feeling that he’s not representing them,

that he’s not listening to them — all of that is documented, when you do

months now, ever since the government revealed its true nature of

imposing taxes, of looking at making life less affordable for his

constituents and then not listening to them, British Columbians know and

the members of that riding know that it was time for a

change.

The Recall and Initiative Act offered that opportunity, as slim as

it was. But, sadly, the Attorney General, with the support of every

member on that side and the three Third Party members, have decided to

deprive those folks in Point Grey of the opportunity, the very slim

opportunity, to initiate what could be a successful recall, and that’s

not right.

I know, at the end of the day, they have the numbers. They like to

gloat that they have the numbers, and that’s fine for now, and this

egregious act will pass. This will pass into law. Any citizen’s right to

a successful recall will be completely crushed by this bill, and that’s

only because of what the member from Point Grey, the Attorney General,

with the support of everyone on that side, is seeking to do.

That’s not right. And you know what, Madame Speaker? I’m going to

say this: it’s not too late.

Members on that side — maybe not members of executive council —

backbenchers: you can think for yourselves, and you can vote for

yourselves. Show some backbone. Show some spine.

Members of the Third Party, the soon-to-be…. Well, he already is

the mayor of Nanaimo. He’s not going to be in caucus anymore. Maybe he

can change his vote. I would encourage members on that side to

reconsider what you’re doing here. What you’re trying to do here is

wrong. It’s antidemocratic. It’s filled with conflict of interest, and I

am sure British Columbians expect much more from their government and

from members in this House.

With that, I am opposed to this bill, and I will be voting against

it. I urge all members to join me and this side of the House in voting

against it.

[2:20 p.m.]

Hon. A. Dix:

Madame Speaker, I move second reading and close debate.

[Mr. Speaker in the chair.]

[2:25 p.m.]

Second reading of Bill 53 approved on the following

division:

YEAS — 44

Chouhan

Kahlon

Begg

Brar

Heyman

Donaldson

Mungall

Bains

Beare

Chen

Popham

Trevena

Sims

Chow

Kang

Simons

D’Eith

Routley

Elmore

Dean

Routledge

Singh

Leonard

Darcy

Simpson

Robinson

Farnworth

Horgan

James

Eby

Dix

Ralston

Mark

Fleming

Conroy

Fraser

Chandra Herbert

Rice

Krog

Furstenau

Weaver

Olsen

Glumac

NAYS — 39

Cadieux

Bond

Polak

Wilkinson

Lee

Stone

Coleman

Wat

Bernier

Paton

Ashton

Barnett

Yap

Martin

Davies

Kyllo

Sullivan

Isaacs

Morris

Stilwell

Ross

Oakes

Johal

Redies

Rustad

Milobar

Sturdy

Clovechok

Shypitka

Hunt

Throness

Tegart

Stewart

Sultan

Gibson

Reid

Thomson

Larson

Foster

Hon. D. Eby:

I move the bill be referred to a Committee of the Whole House to

be considered forthwith.

Leave granted.

Bill 53, Recall and Initiative Amendment Act, 2018, read a second

time and ordered to proceed to a Committee of the Whole House for

consideration forthwith.

Hon. M. Farnworth:

I call committee stage on Bill 53.

[2:30 p.m.]

Committee of the Whole House

BILL 53 — RECALL AND INITIATIVE

AMENDMENT ACT,

The House in Committee of the Whole (Section

B) on Bill 53; R.

Chouhan in the chair.

The committee met at 2:32 p.m.

section 1.

Hon. D. Eby:

I’m joined by two staff members from the Ministry of Attorney

General. To my immediate left is Neil Reimer. He’s the director of

policy and legislation in the Ministry of Attorney General. Alayna Van

Leeuwen is senior policy analyst in the Ministry of Attorney General as

well.

I look forward to my friends’ questions.

M. Lee:

I appreciate that on short notice, effectively, we’ve had this

opportunity now to bring it to committee stage — only under the premise,

of course, I should note, that this government has decided to bring

closure to this debate on Bill 53 and in a very unfortunate way for the

province of British Columbia. Today what we have seen is a

demonstration, of course, of the contempt that this government has for

this province.

To invoke closure at this time, when we have not had the ability

to debate this bill fully, when we had an amendment on the floor of this

House, an amendment that would have sent this bill to

committee….

I should add that in 1993, recall legislation and recall

initiative was looked at by the same committee of this House, the same

committee that could have given the input, but that we are now, as a

legislative body, being given short shrift by this government, all in

the interests of compressing this process just three days before the

recall petition period can start in this province.

I stand here about to embark on this committee stage under great

protest that what this government is doing is undermining our democratic

process.

[2:35 p.m.]

At the same time, what is ironic is that in this province, we’re

being asked to hold a referendum, of course, on proportional

representation, to change our voting system, to give further confidence

to this government on a different form of voting system.

Yet they have the abuses of their power. They’re utilizing every

single tool at their disposal procedurally in this House to effectively

cut off the debate and review of representatives of British Columbians

in this House on this bill.

I want to register again my objection to the stage that we’re at

in the debate on this bill, on behalf of our entire B.C. Liberal caucus

and the opposition side of this House.

Having said that, let me ask….

The Chair:

Section 1.

M. Lee:

In the first case, under

section 1(b), can the Attorney General

please provide the background and the reasoning behind striking “or

recall advertising” in the definition of “contribution”?

Hon. D. Eby:

This is to avoid confusion for people reading the bill. There’ll

be a new definition for something called sponsorship contribution, which

will be used to refer specifically to contributions related to recall

advertising or recall as a process, and “contribution” will apply

exclusively to initiative advertising, so that someone can draw a

distinction between the roles on the two separate processes.

M. Lee:

So in terms of the sponsorship advertising definition, then, that

is actually sponsorship contribution. Is that correct?

Hon. D. Eby:

In relation to recall, the answer is yes. And it’s referred to

later in the bill.

M. Lee:

So the cross-reference under 146.04 to 146.07 is the entire

instance in the bill where “sponsorship contribution” as a term is

utilized?

Hon. D. Eby:

“Sponsorship contribution” is used through­out division 3.1,

which is a new division that this bill would add, and then in division 4

as well. It’s used in there. That is in relation to reporting provisions

under the act.

M. Lee:

Then the way that I’m reading the definition, as the Attorney

General has responded, recall advertising is removed from that

definition on the basis that there’s a new division, of course, dealing

with sponsorship contributions. So a sponsorship contribution, as it’s

defined, then, only applies to recall. Is that correct?

[2:40 p.m.]

Hon. D. Eby:

That is correct.

M. Lee:

The previous restrictions around third-party advertising for

recall were under what

section of the act?

Hon. D. Eby:

Part 8 is the relevant

section of the act dealing with recall

petition communications, so this bill proposes to make amendments,

particularly, to

part 8 to add rules in relation to recall petition

communications, registration, reporting and advertising.

M. Lee:

The additional provisions, then, relating to sponsorship

contribution — the reason for that. If the Attorney General could take

us through the objective behind that.

Hon. D. Eby:

The act contains two separate processes. One is recall, and the

other is ballot initiative. In order to avoid confusion between the two

separate processes, “sponsorship contribution,” that term, refers

exclusively to recall advertising and recall. Contribution relates to

initiative advertising. We hope that that distinction will assist people

in distinguishing between the two processes and the two separate sets of

rules.

M. Lee:

I guess I’m curious, then, in terms of the need to further those

rules when we had, under the Recall Act, provisions dealing with

contribution. I appreciate that the government’s view is that there was

a need to move forward, in light of campaign financing amendments that

were made last fall, to make similar changes, let’s say, under this

recall and initiative act.

I still would like clarity around the need to have additional

restrictions around what effectively was formerly termed “recall

advertising” and now “sponsorship contribution.” If the Attorney General

could please take us through those additional items that are referred to

in that definition under

section 1.

Hon. D. Eby:

I’d be glad to walk the member through, because we seem to have

lost a little bit, the intent of the government, through the second

reading speeches. It was a pretty explicit intent that was stated

throughout the election campaign, as well as in the throne speech, in

many venues and occasions since then, which was to get the big money out

of politics — in particular, to ban union and corporate donations and

limit individual donations to $1,200.

As the member knows, because he’s been through the bill — and I’m

glad he took up the opportunity to be briefed on this — recall is

distinct from a fixed-date election. There are issues around the

pre-campaign period, but you don’t know what that pre-campaign period is

because it depends on when someone actually files the

paperwork.

Now, there are complications around…. If you have multiple recall

campaigns running at the same time and each has a $1,200 limit, you

could have someone donate $1,200 for each of the multiple recall

campaigns running in a single constituency and avoiding the rules. And

what do you do between a proponent of a recall campaign and an MLA that

may be receiving donations up to the $1,200 limit? Does the MLA get to

receive an additional $1,200 to defend against the recall campaign? The

bill says no, yet the proponent is allowed to raise $1,200.

The goal is to get big money out of all aspects of our politics.

We started with provincial elections. We’ve dealt with it in the

referendum. Now we’re dealing with it in recall. That is the point of

having these rules around what is called “sponsorship contribution” in

the definition.

[2:45 p.m.]

Now, the member asks what, in the definition, of the government’s

purposes contained there…. It’s not in the definition. The definition

sets out the term. Then as you go through the act, as the term shows up

and as we work our way through, the member will see how these rules

around getting the big money out of politics, including out of recall,

will be applied.

M. Lee:

If I can just ask for a clarification. Under the existing act,

what is the overall limitation for a recall campaign from a monetary

point of view?

Hon. D. Eby:

I just noticed that we’re joined by a school group up in the

gallery that may be wondering what we’re doing. We’re in a stage called

committee stage. So there’s a proposal on the floor of a new bill that

the government’s put forward. The critic for the Attorney General is

asking me questions about what’s happening with the bill, and then I’m

doing my best to answer so that everybody in the Legislature can

understand the proposal that’s in front of us.

This particular bill is around ending certain types of donations

in an election process called recall — union and corporate donations —

and limiting donations from very rich individuals to just $1,200. You’ll

hear me answering questions as he asks questions. Just so you know a

little bit about what we’re doing down here today. Thanks for

visiting.

The member asked about existing limits in recall campaigns. If

you’re a sponsor of recall advertising, there are no limits. There are

no limits on where you get donations from, how much money you can spend.

There are no restrictions.

There are two authorized participants in a recall campaign.

There’s the MLA who’s the target of the recall. Then there’s the

proponent of the recall campaign — the person who files the paperwork

with Elections B.C. They both have expense limits.

There’s a formula that the act sets out that is based on the

number of registered voters. It is a dollar amount per voter. There’s

sort of a base amount that the act sets out and then an additional

provision per voter beyond a minimum amount that is permitted under the

act.

M. Lee:

I also wanted to join the Attorney General by saying hi. I’m the

member for Vancouver-Langara. My role in this chamber is to be the

opposite side critic of the Attorney General.

He just explained to you what we are debating. Let me just say

that this is very important to our democratic process, where British

Columbian voters have the ability, 18 months after an election, to

recall. Basically, voters in a particular riding have the ability to

mount a gathering and a campaign in order to recall that member so that

member no longer will serve in this House. It’s the ultimate

accountability.

I see a few heads nodding. When you get in trouble, you know

you’ve got to pay the penalty, right? That’s how you’re being held

accountable either by your teacher or your parents. That’s what this

ability ultimately gives to British Columbian voters.

Unfortunately, what’s happened today — and you’re here as a

witness to this — is that we are being compressed in the ability to vote

and debate on this bill. It’s what happens when someone says to you:

“You know what? We don’t want to hear you anymore. We want to shut down

this discussion.” That’s exactly what’s happened here today.

The Chair:

Member. Member.

M. Lee:

You’ll see, as we have this conversation, the critical elements

that we have been given very little time, at this point, to actually go

through. So thank you again for coming out today.

The Chair:

Member. Member, as a caution. Please, all remarks must be

through the Chair.

M. Lee:

I’m just merely greeting our guests in the gallery.

The Chair:

No. That’s understandable. No arguments. No

arguments.

M. Lee:

Let me just say, Mr. Chair….

The Chair:

No. Through the Chair.

[2:50 p.m.]

M. Lee:

Just to say to you, then, if we have the…. The whole question,

then, is this, around the definition of big money. The Attorney General

just went through in good detail, in terms of the per-vote,

registered-vote count, to get to the amount under the current act that

we’re speaking to here, the amending of that act.

I just want to clarify, then. Typically speaking, on a basis of,

say, 35,000 registered voters in a particular riding, what would be the

total limit on spending for a recall campaign?

Hon. D. Eby:

I regret very much opening that door. There you go. I thought I

was doing something nice.

Let me run through a few examples of different constituencies. Oak

Bay–Gordon Head, last time…. The issue, for the member, is just that the

Chief Electoral Officer sets these limits, usually at the beginning of

the period when it’s eligible for recall to happen. We’re not there yet.

So it’s important to know that these numbers are just for illustration

purposes, to assist the member. We haven’t received Elections B.C.

numbers yet. It’s based on a formula, as I said.

For Oak Bay–Gordon Head — a proponent that is advocating recall in

Oak Bay–Gordon Head, which is 38,000 voters — $35,938; Comox Valley,

48,000 voters, $39,000; Kamloops–North Thompson, 38,000 voters; $39,788;

and Maple Ridge–Mission, 35,203 voters, $34,829 is the limit.

It’s important to recognize that this is just the proponent. This

is the person who files the paperwork. Anyone else who wants to

participate through recall advertising has absolutely no limits, no

limits on donations…. Well, I was corrected by staff. There are actually

two limits. There’s a limit on the number of anonymous contributions you

can receive, and you can’t receive contributions from registered

charities. Beyond that, you can take international donations, union

donations, corporate donations, unlimited individual donations and spend

as much money as you want. So there are two different groups.

It’s important to keep that in mind in terms of this, because I

definitely take the member’s point that in terms of proponent spending,

this kind of spending is very consistent with other goals around the

Election Act. But in terms of when you’re looking at issues related to

third parties’ spending, that’s when we start to run into trouble with

the big money.

M. Lee:

I just wanted that point of clarification. So when this government

refers to big money being involved in recall, it’s not the proponent

side. Quite clearly, in terms of the examples that the Attorney General

was able to share with us, they’re in the $30,000 to $40,000

range.

If the concern, then, is around third-party advertising

sponsorship, that brings me back to the definition here, when we’re

referring to the levels in which sponsored contribution can be limited

under recall. That was actually where I was trying to get to earlier, in

the sense of identifying what we mean when the government says “big

money.”

Really, when you think about it, the big money doesn’t have a lot

of room to play in this — certainly not on the proponent side. When

we’re talking about individual voters in a particular riding who want to

mount a campaign, I don’t see where the big money concern is.

Perhaps we can come back to, again, the sponsorship contribution

level. Under the particular division that’s cross-referenced in the

definition, sections 146.04 to 146.07, is that the only area in the bill

where there are additional third-party restrictions, as we are just

discussing here?

[2:55 p.m.]

Hon. D. Eby:

I’m going to say and just note for the record that, to date, I

don’t believe that the opposition has ever recognized an issue with big

money in our politics. So to hear the member say that he doesn’t see a

problem here is not a surprise to me, and it is not the standard by

which the government measures its approach to big money in

politics.

I will say, in terms of the member’s specific question, that

sponsorship contribution…. The definition is: “means a sponsorship

contribution within the meanings of

section 146.04 to 146.07.” So the

definition looks further into the act and pulls out those sections and

says that a contribution that meets these requirements under the act —

that’s what we’re calling a sponsorship contribution.

It’s not the only place it’s used. It’s just a definition that

refers into the act. So someone who wants to know: “What is the

sponsorship contribution…?” They’ll go to 146.04 to 146.07. They’ll read

through. They’ll say: “Oh, okay. That’s the sponsorship contribution.”

Anywhere else that term is used in the act, they’ll apply that standard

to the term as it shows up in the act. It’s not meant to be read as far

as that being the exclusive

section where this term will show up. It’s

the definition itself that’s contained in these sections.

M. Lee:

Well, just in response, I think there’s been an acknowledgement by

many members here of the importance of our democratic process. The

$1,200 limit that has been brought forward is certainly an important

limit that has been placed to ensure that we have a level playing field,

because when we talk about getting rid of big money, as we will see when

we get into later sections of the act, I question how that’s occurring

here, particularly when some of the loopholes that we saw in the

municipal election campaigns were still evident in the Local Government

Act and are explicit here.

My purpose for talking about that definition in the first instance

is to differentiate between the proponent limit — which, as we were just

talking about, is in that $30,000 to $40,000 range — versus the

restrictions on third parties. Just to go further, though, because we

will have that discussion when we get to that part of the bill, in terms

of the eligible individual definition, can I ask again, on that

particular section, the purpose for imposing that definition with that

formulation?

Hon. D. Eby:

It’s the same answer — the third time the member has asked the

question. The reason why we have this specific definition is to draw a

distinction between the initiative

section of the act and the recall

section of the act, which has a different term that is used to assist

people in understanding their obligations under the act.

M. Lee:

In terms of non-petition period recall advertising, can I ask,

under sub (d), in the formulation of that particular definition of

“transmission by an individual on a non-commercial basis,” the purpose

for saying “non-commercial”?

[3:00 p.m.]

Hon. D. Eby:

This

section talks about what is not recall advertising. The

“non-commercial” term refers to somebody posting something on social

media — their opinion about a recall campaign, one side or the other.

That would not be considered recall advertising. But if you wanted to

spend money to promote that view, then you’re on a commercial basis, and

then you’re into recall advertising.

That’s why it’s on a non-commercial basis. That’s just an example.

The intention is to allow that free expression and to address the paid

advertising, the commercial advertising, of particular

perspectives.

M. Lee:

Just in terms of freedom of expression, can I ask whether, in the

nature of proposing these amendments, the November 22, 1993, report of

the Select Standing Committee on Parliamentary Reform, Ethical Conduct,

Standing Orders and Private Bills — the nature of that report — was

considered in the recommendations in the formulation of these amendments

to this act?

Hon. D. Eby:

If the member is looking for inspiration, where these amendments

came from, he will find them in the amendments that were made to the

Election Act to get big money out of politics for general elections. As

much as possible, staff have tried to mirror those

provisions.

The provision that he just asked me about, in relation to

“non-commercial basis” — that set of

definitions around recall

advertising mirrors very closely what was in the elections act. The

member will know, I suspect, that in 1993 and, in fact, in 2015, ’16,

’17, there were no restrictions in the Election Act in terms of union

and corporate donations, limits on individual donations. There was a lot

of big money in our politics.

That has all changed very significantly, so these provisions are

meant to mirror those changes that have come in.

M. Lee:

The reason why I point that out is that when I look at the last

page of this report,

section 5 of the review that was done by the

committee that we had hoped to actually, of course, as you know, send

this entire bill to…. But that debate was cut off, in effect. I see

that, of course, a consideration by that committee at the time, when it

was looking at recall…. The quote is: “We recognize that if not

carefully drafted, such restrictions” — referring back to spending

limits on recall and petition processes — “might be contrary to the

Canadian Charter of Rights and Freedoms.”

Perhaps I could ask the Attorney General whether there’s been any

consideration regarding the level of restriction for recall — as the

committee identified back in 1993 and as I would have expected, if we

were able to have further consideration of the amendment that was

proposed by my friend from Peace River South — and whether any of these

restrictions that we’re now getting into, non-petition period recall

advertising, are at all contrary to our Canadian Charter of Rights and

Freedoms.

Hon. D. Eby:

The member, I hope, would know — if not, I’m glad to put it on the

record — that I would never put forward legislation that was not

compliant, or that I did not believe was compliant, with the Canadian

Charter of Rights and Freedoms.

I can advise the member that the staff are certainly…. They didn’t

need to read the 1993 report to be well aware of the jurisprudence, both

predating 1993 and since then, in relation to various attempts by the

previous administration and other administrations across Canada to

limit, in various ways, the impact of big money on politics and the

delicate balance between individual expressions of that most protected

speech, political speech, and the recognition that there are groups with

disproportionate influence because of the amount of money they can

wield.

We need to look no further than the mid-term elections that are

taking place right now in the United States to see what untrammelled,

unrestricted election advertising and donations can result in. I think

it’s a cautionary tale for all of us.

[3:05 p.m.]

Staff are very aware of the jurisprudence. They have drafted this

carefully to strike that balance, and I think they’ve done a wonderful

job.

M. Lee:

Can I ask: under the definition of “permissible loan,” should

there not be a definition for “recall advertising sponsor?”

Hon. D. Eby:

“Recall advertising sponsor” is defined in the new section,

134.01.

The member’s question is a good one. I’ll try to take a step

further than his question, in an attempt to be complete in my answer.

Why would you have “recall advertising sponsor” and “permissible loan”

here, but not have the definition in this section, in the definition

section? Well, the only area where permissible loans are discussed in

relation to recall advertising sponsors is in this

section that I just

referred the member to. So it’s all contained right there. It’s a

complete

section related to permissible loans.

M. Lee:

Thank you for that clarification. I guess, as I stitch that

together, though, we’re talking about repealing

section 134 and adding

134.01. I think I just heard that “permissible loan” is utilized only in

that

section — if that’s what I just heard. So I guess it just raises

the question as to whether “permissible loan” itself should have a

reference to that section.

Hon. D. Eby:

I’d have to look at Hansard

to look at what I said. Just

to clarify, it’s in that part of the act. The act has different parts,

and a

part is bigger than an individual section, so if I said “section,”

I apologize. I’d like to clarify that my intention was to say that it is

contained in that part of the act exclusively.

M. Lee:

Thank you for that clarification. That’s understood. I guess it

just probably still continues to raise…. So we’re talking about…. It

appears to be

part 7. Is that correct?

[3:10 p.m.]

Hon. D. Eby:

It’s in

part 8 of the act, which relates to recall petition

communications.

M. Lee:

I see, flipping the page here, that it’s the first

section of

part

8. Just back to my initial question then. If “permissible loan” is

utilized only in this particular part, should the definition then

cross-reference the reader to that part?

Hon. D. Eby:

The drafting style is such that someone reviewing the

section

related to permissible loans who then flipped to the definition to

wonder what a permissible loan is, would then read this definition, but

they would have gotten there exclusively through the part that relates

to permissible loans. So the drafting style is to consider that an

individual would read it through, rather than read

an act, essentially,

from beginning to end.

In any event, if they did do so, they would come across “recall

advertising sponsor,” and then, in that section, they would find that

term fully defined.

M. Lee:

I’m just looking at the definition of “petition period recall

advertising.” Can the Attorney General walk myself through the

particular use of the term “indirectly” in the third line of that

definition? What is that intended to capture, with the list that’s not

exhaustive — it’s inclusive — below, in sub (

a) through (d)? Just to get

a better clarity, understanding, of what’s intended to be captured

within that term “petition period recall advertising.”

Hon. S. Fraser:

I seek leave to make an introduction.

Leave granted.

Introductions by Members

Hon. S. Fraser:

I met an incredibly nice group of kids and their teachers and

chaperones on the stairway coming in here just moments ago. They are a class

from Coghlan Elementary in Langley. Would my colleagues in the House here

please make them feel very, very welcome.

Debate Continued

Hon. D. Eby:

“Petition period recall advertising” is the definition that we’re

looking at. It talks about directly or indirectly, essentially,

promoting or opposing the recall of the member who’s the subject of the

petition.

“Directly or indirectly” is a term that has been used for a long

time in the Election Act, and it recognizes that you can achieve a

message in a couple of different ways. You can say directly, “Recall

John Smith” — there are no members in this House named John Smith — or

indirectly: “Let’s get rid of John Smith.” Those would be similar. It

would be indirectly saying the same thing that “recall John Smith” does

and would be considered recall advertising.

I just wanted to note for the member, I know that he and his

colleagues were sufficiently concerned about my introducing this bill

that they had written to the Conflict of Interest Commissioner. I’m

happy to advise the member that the Conflict of Interest Commissioner

has dismissed both questions that the….

[3:15 p.m.]

M. Lee:

With that break in the act…. That letter, of course, came from the

Leader of the Official Opposition to the Conflict of Interest

Commissioner, so I don’t have the response in my hand. I have the actual

original letter. I presume that the opposition side has received that

response.

I should note, though, that regardless of the technical

considerations that were referred to in that letter, the overall optics

and the perception of what this government has done…. And further to

when this letter was sent, on October 31 — today being November 6 — this

is now, within the last few hours, a situation where the government has

brought closure to the debate about this bill.

It again raises the question, at least for the members on this

side of the House and members of the public in British Columbia, as to

why this government has brought closure to this bill. When the

government deemed it had in its hands — at least we were informed in

this House — this response from the Conflict of Interest Commissioner

that we have just got word of…. When the Government House Leader stood

up in this House to effectively bring closure after question period this

morning, we didn’t have that response yet.

In the face of the continued review by the commissioner and in the

face of continued concerns and considerations, the reasonable amendment

that was proposed by the member for Peace River South to send this bill

to a committee, the government brought closure within what stands now to

be about three hours. We have three hours left to consider this

bill.

This has been the concern and the timing of this bill. So when the

Attorney General raises and makes note of the response, I would like to

take that opportunity to again raise great concern, on behalf of the

members on this side of the House, as to the timing and the complete

lack of respect to members of this House and to this province for

cutting off the debate on this bill — under a cloud of considerations

around the timing of introducing amendments to recall legislation three

days before the petition period can start, where it’s not just the

Attorney General but other members of this House that can be affected by

this recall amendment.

Let me say this. If we go forward into petition period recall

advertising, can the Attorney General please take us through the

restrictions or removal of commercial value, in terms of each instance

under sub (a), (b), (

c) and (d) — where commercial value is taken out of

that?

Hon. D. Eby:

So (a), (b), (

c) and (

d) of this

section cover things that are not

considered recall advertising. Each one is a distinct and separate

item.

[3:20 p.m.]

I note the member’s impromptu speech, his chagrin at the questions

that they raised having been dismissed and holding a letter that he had

a copy of — which was, obviously, the complaint and which, of course, I

never received, and just as well, because the commissioner didn’t need

submissions from me to dismiss the complaint.

M. Lee:

I just want to respond to that comment from the Attorney General.

I have just been handed the letter from the commissioner. I would have

thought that….

Just for clarity purposes, the Leader of the Official Opposition,

when he sent in the letter, was requesting an opinion under

section 18

of the Member’s Conflict of Interest Act. In so doing, the commissioner

has the jurisdiction to provide an opinion back to any member of this

House. I would have presumed that in ordinary course, if the

commissioner saw fit, he would have informed and contacted the member in

question here.

Let me say, when I look at this letter in response for the first

time, that in part, the reason why the commissioner has decided that

there hasn’t been a conflict at this time is that no recall application

has actually been filed with Elections B.C. under the existing Recall

and Initiative Act. While that may be factually true, this is the reason

why the government is bringing closure today, right now, in a few hours,

to this bill. Because it’s a few days before the petition period can

start.

This is exactly what has provided a fact pattern, let’s say, for a

technical response to be referred to. I’m not at all commenting on the

conclusion of the commissioner when I say that. I’m just saying that

this government has put itself in the opportunity and the ability to cut

off debate at this time, when we know that technically, under the act,

if the petition period had started, the member opposite would be in

conflict. That is the concern.

This is the reason why we are standing here now with less than

three hours to go, debating and walking through a bill that this

government has cut off discussion and review of. I’m being handed

letters, and the Attorney General is standing up utilizing that as a

basis for defending government’s actions. I think that is just offensive

to the members of this side of the House. All members of this House

should be concerned about the way that this government is acting,

because as much as it says it continues to act for the people, it acts

out of power. That’s what this is about.

Let me come back, with the continued breaks in the action here, to

ask the question, then, about the definition of “recall petition

period.” That definition requires…. There has been a strike-out of “the

day on which a recall petition application is approved in principle by

the chief electoral officer” to replace that with now saying in that

definition that it would substitute in “the day on which the chief

electoral officer publishes notice under

section 20 (1) (

b) of approval

in principle of the recall petition.”

Can I ask again, for the benefit of this side of the House, the

reason for that change?

Hon. D. Eby:

It’s very straightforward. It’s just to make it clear to the

public about the time when a petition begins.

[3:25 p.m.]

I’ll note that the member made another speech in which he made a

number of remarks in relation to this letter and in which he complained

that he didn’t get enough notice of a complaint that they filed and did

not provide to me — a complaint that I never got a copy of and that the

commissioner dismissed — without submissions to me that they didn’t get

enough notice of it from me, which is particularly rich.

M. Lee:

Well, I think that on the day that the Leader of the Opposition

sent in the letter, it was also publicized. So I think that the Attorney

had notice, in effect, of what was being reviewed by the

commissioner.

Let me ask this question, though, because right now, in the

“recall petition period” definition, it effectively goes to the same

principle about notice. What is the reason for that change where under

the old act — well, still the current act — it was sufficient for the

commencement being on the day when the application was approved in

principle by the Chief Electoral Officer?

Hon. D. Eby:

It’s critical for members, for proponents and for third-party

advertisers to know exactly the moment that a petition begins, because

their obligations change. There are obligations related to reporting and

spending limits and so on, so that timing is incredibly

important.

M. Lee:

The

section of the act to which this amendment is being made is

section 20(1)(b), which refers to issuing the petition “in the form set

out in the regulations within 7 days after notice is given in accordance

with paragraph (a).” I guess I’m just reading that against what’s in

this definition. When we say “the day on which the Chief Electoral

Officer publishes notice,” under that same section, are we suggesting

that the notification of the proponent, under the cross-reference from

(

b) to (

a) under 20(1), is that notification? Or is this a public notice

that we’re referring to?

Hon. D. Eby:

It’s a public notice that does not currently exist. Those other

groups and individuals still need to be notified, but this is a new

notice that didn’t previously exist.

M. Lee:

Where is the provision for that notice to be provided? I don’t see

it in the existing 20(1).

[3:30 p.m.]

Hon. D. Eby:

This amendment strikes from the existing subsection 20(1) “…and

(

b) issue the petition in the form set out in the regulations within 7

days after notice is given in accordance with paragraph (a).” It adds

(

b) and (c).

The member will see, under sub 20(1)(a), that the notification to

“the proponent, the Member in relation to whom the petition is to be

issued and the Speaker” is all contained there in sub 20(1)(a). The

amendments proposed do not change that.

In addition to that…. So that continues. The existing (

b) is

struck and replaced with this new (b): “as soon as practicable after

giving the notices under paragraph (a), publish notice of the approval

in principle on an Elections BC authorized internet site.” That’s the

public notice. The new (

b) provides that public notice.

Then (c): “as soon as practicable after publishing the notice

under paragraph (b), issue the petition in the form set out in the

regulations.” That, I hope, addresses the member’s question about the

connection between the amendments and the existing subsection

20(1).

M. Lee:

Thank you for stitching together the amendment to that

section.

I would move on to the definition of “registered sponsor.” In that

definition, we’re striking out “…Division 3 of

Part 8 in relation to

recall advertising.” With respect, that leaves us with just “registered

sponsor” as a term being used to initiative advertising. Can I just

confirm that that is the case?

[L. Reid in the chair.]

Hon. D. Eby:

Yes.

M. Lee:

In the definition of “specified fundraising function,” sub (

b) is

only relating to recall petitions and not initiatives. Is that the

intention?

Hon. D. Eby:

Yes.

M. Lee:

When we look at sub (

i) of this section, we have, in the

definition: “For the purposes of the definition of ‘non-petition period

recall advertising’…a message that (

a) names the Member, includes an

image or likeness of the Member….” What are the other ways in which that

member might be identified under sub (

a) that might have been considered

in this definition?

Hon. D. Eby:

This definition is in relation to non-petition period recall

advertising. The definition is sought to be broad in terms of

identifying a member — so a message that “names the Member, includes an

image or likeness of the Member or identifies the Member by voice,

physical description or electoral district.”

If the member has other suggestions, I’d be glad to hear

them.

[3:35 p.m.]

M. Lee:

When we look at voice or physical description or electoral

district, I suppose there may well be other attributes that might

describe that individual which go beyond just the image or likeness. So

would it not be intended that, when we’re looking at the identification

of the member for whom one is promoting or posing the recall of a

member, that message might contain in words a written description of

that member as opposed to an image or a likeness?

Hon. D. Eby:

I’d like to draw a distinction here. It’s “…an image or likeness

of the Member or identifies the Member by voice, physical description or

electoral district.” Those could be audio or written or, I guess, a

pictograph or who knows. In any event, it’s meant to be as broad as

possible in order to capture the idea of something that identifies a

specific member. I’m not sure how else I can say it.

M. Lee:

Thank you for that clarification. I guess I’m just keying in on

the words of physical description. I suppose another formulation of that

would have been…. But let me ask the question. It would have been

written description. Is that correct, or are we thinking that physical

description goes beyond written description?

Hon. D. Eby:

I hesitate to speculate. The idea here is that it could be

written. It could be an image. It could be that someone is famous for a

moustache — you know, a picture of their moustache. The idea here is to

capture the identification of a member. This draws on Election Act

language.

M. Lee:

If we look at sub (4), then, and the purpose of carving out those

particular sections —

section 137, 138 and 161 — can I ask the Attorney

General just to walk through the reasons why those particular sections

are excluded from this provision?

Hon. D. Eby:

Section 137 is about identifying the sponsor. There are other

sections later in the act that deal with canvassing voters and mailing

material that contains advertising messages, that talks about

identifying the sponsor. So it’s dealt with differently later. That’s

why it’s not part of this section.

Section 138 relates to the rates charged for advertising. Rates

charged for advertising do not apply to either canvassing voters in

person or by telephone or mailing material that contains advertising

messages. It’s separate. And then 161 is a flow-through. It’s the

offence provision for 137 and 138.

M. Lee:

Under sub (4)(b), it’s mailing material. Would that include

material that is not mailed — that is, material that is dropped on the

doorstep by volunteers?

Hon. D. Eby:

No. It must be mailed, and it’s on a commercial basis.

[3:40 p.m.]

M. Lee:

And the reason for that distinction…. I just ask for the reason

for that distinction because material that contains advertising messages

presumably would be captured here. Why the distinction regarding

mailing?

Hon. D. Eby:

This

section is yet another example of the language paralleling

the Election Act. The key for the member to keep in mind is the

connection between commercial basis and mailing material. It’s aimed at

direct mail campaigns, not an individual person on a volunteer basis

dropping leaflets at doors — these kinds of things. It’s meant to be a

commercial distribution through the paid mail services.

Sections 1 and 2 approved.

section 3.

M. Lee:

section 3(a)(4)(b), this has the addition that: “No application

for the issuance of a recall petition may be made…(

b) during the 6

months before the applicable general voting day under

section 23 (2) of

the Constitution Act for the next general election.” First, to the

Attorney General, could the Attorney General please explain the

rationale for this additional six-month period being included to

restrict when recall petitions can be made?

Hon. D. Eby:

This came from a recommendation by the Chief Electoral Officer.

What it relates to are the mechanics of the act, coupled up with the

mechanics of the general election and the particular timelines. Working

backwards from general voting day, a fixed voting day in a general

election, there’s a one-month campaign period, and then there’s a

two-month pre-campaign period for a general election. That brings you

three months out from the general election day.

In order to complete a recall campaign, there are two months of

gathering signatures and then 42 days for Elections B.C. to verify.

That’s a three-month period.

When you’re looking at six months, you have six months before the

general election. By the time you’ve gathered the signatures and

Elections B.C. has verified the signatures, you’re already into the

pre-campaign period for the general election. Elections B.C. then has

six months to call the by-election, should the proponent have been able

to gather enough signatures and they were verified.

[3:45 p.m.]

It would be very unlikely that Elections B.C. would call a

by-election, because within less than three months, there will be a

general election. It’s just a reflection of the reality of the timelines

of the act.

Now, I do want to draw to the member’s attention that it’s

slightly different from what the Chief Electoral Officer had

recommended. The previous Chief Electoral Officer proposed…. Currently

it’s 18 months following an election before a recall campaign can start.

He proposed reducing that to a year and then having a year before the

general election when you couldn’t launch a recall. Having a year out

from a fixed-date general election felt quite distant for us, but six

months seemed to make a lot of sense, just given the overlapping dates

and the fact that you’d be into a campaign period.

So it’s an adaptation, still allowing the same amount of time that

the Chief Electoral Officer wanted available for a recall campaign to be

launched.

M. Lee:

I was actually going to refer to the difference. Thank you to the

Attorney General for pointing that out.

When we look at that recommendation in the course of what is being

implemented here, was there any consideration given as to — effectively,

what is occurring under this new

section — limiting the period of time

under which British Columbians are able to launch recall petitions?

Effectively, what this is doing, of course, is saying to British

Columbians that under this act, it now will have only two out of the

four years to launch a recall petition by reducing the period even

further. Was there any consideration of that concern?

Hon. D. Eby:

The same amount of time is available to British Columbians to

launch a recall campaign as was recommended by the Chief Electoral

Officer. We felt that that was a good guideline.

I do want to correct one aspect of my last answer. Of course, it’s

government, not the Chief Electoral Officer, that sets the timing for a

by-election. I believe I said that it was the Chief Electoral Officer

that set the date for the by-election.

M. Lee:

I appreciate that this was a recommendation from the Chief

Electoral Officer, but it does still give the opportunity for some

limited discussion here in this current context around the period that

British Columbians would be able to bring forward a recall

petition.

With that in mind, was there any consideration, though, to the

Chief Electoral Officer’s point about starting recall petitions 12

months after the last general voting day for the last election of the

member — starting it earlier? Then doing what, in the view of the

government…. Impose a further restricted period, where recall petitions

could not be brought forward in the six months before the next general

voting day, and still, therefore, maintain the ability of British

Columbians to bring forward recall petitions in the same 2½-year period

— therefore not having to reduce that period to 24 months?

Was there any consideration to merely shifting the six months from

the original 18 months so that you’d have the first 12-month period and

then the last six months? Overall, you would still have the same

18-month period for which you would not be able to have a recall

petition launched.

Hon. D. Eby:

The intent behind the 18-month period was to allow new members to

have time to come in and learn their new roles and get their feet as a

new government before being subjected to a recall campaign. Certainly,

the member raises a live question. Does it take 12 months to adequately

understand your role and be subject to recall? Does it take 18 months?

The bill that’s in front of us proposes 18 months.

M. Lee:

I appreciate the response from the Attorney General. I just note

the fact that as government is relying on the recommendation from the

Chief Electoral Officer, the Chief Electoral Officer actually suggested,

in that recommendation, that the period could be shortened to 12 months,

as opposed to 18 months. Keeping in mind the points that the Attorney

General just made, there was that part of the recommendation that this

government could have accepted.

[3:50 p.m.]

Again, I wonder. I ask the Attorney General the reason for which

that 18-month period was not reduced to 12 months as the Chief Electoral

Officer had recommended.

Hon. D. Eby:

It’s the same answer.

M. Lee:

I just would like to ask, under subsection (5), the meaning, just

to confirm, of “Elections BC authorized internet site.” What would be

captured within that term?

Hon. D. Eby:

It simply means the Elections B.C. website. If they contracted

with someone to provide the website to them and authorized it as the

official Elections B.C. website, it would still be the Elections B.C.

website. That’s what the

section aims to accomplish. Simply because it’s

not owned directly by Elections B.C., maybe by a contractor, as long as

Elections B.C. authorizes it as the official website, then it

is.

M. Lee:

Keeping that in mind, the Attorney General earlier commented on

the importance of notification. Is it clear, then, to the public where

to look? Is there more than one “Elections BC authorized internet site”?

Is that possible?

Hon. D. Eby:

There’s only one Elections B.C. website that we’re aware of, which

is elections.bc.ca.

M. Lee:

I wonder, then, why the wording is “an Elections BC authorized

internet site.” That’s not meaning to suggest that there is more than

one. If that’s the case, then would it be appropriate to have that more

clearly defined in the bill itself?

Hon. D. Eby:

This is simply a drafting choice to keep the act relevant. If

Elections B.C. decided to set up a separate authorized website that

dealt exclusively with recall campaigns, they could certainly make that

decision under this provision. But it’s meant to apply to the Elections

B.C. website that’s authorized currently.

Section 3 approved.

section 4.

M. Lee:

In terms of the mechanics, and this was referred to earlier when

we were looking at the related definition, the new provision that’s

being amended here for subsection 20(1) provides that there would be

publication of the “notice of the approval in principle on” — again,

that same term — “an Elections BC authorized internet site.”

In terms of the notice of the approval in principle, what steps

are necessary for the Chief Electoral Officer to take in order to get to

that stage of that approval in principle, first of all, and secondly,

the publication of the notice?

Hon. D. Eby:

The member’s answer is contained directly in subsection 20(1): if

the Chief Electoral Officer is “satisfied that the requirements of

section 19 have been met.”

The requirements set out in

section 19 include such things as that

the application must be made to the Chief Electoral Officer and contain:

“(

a) the name of the Member, (

b) the name and residential address of the

applicant; (

c) a statement, not exceeding 200 words, setting out why, in

the opinion of the applicant, the recall of the Member is warranted; (

d) a signed statement of the applicant that he or she is not disqualified

under this Act from making the application; (

e) any other information

that may be prescribed in the regulations.”

There’s a processing fee of $50, and then the timeline of

provisions that we talked about, it has to be compliant with

those.

[3:55 p.m.]

M. Lee:

As we refer to

section 20, then, with the words “if satisfied that

the requirements of

section 19 have been met,” what is the test for

which the Chief Electoral Officer must be satisfied about the

requirements that are set out under

section 19(2)? Meaning: what level

of satisfaction is required, for example, for the 200-word statement

under 19(2)(c)?

Hon. D. Eby:

It’s a pretty binary requirement. Either you have the name of the

member or you don’t. You have the name and residential address of the

applicant or you don’t. You have a statement or you don’t. The

application is accompanied by the processing fee of $50 or it’s not. And

it’s within the timeline set out under the act or it’s not.

The test is whether or not the requirement has been met, and the

sole judge of that is the Chief Electoral Officer, though I suppose

someone could judicially review that decision, although it would be very

strange.

M. Lee:

As the Attorney General just described, when you look at the

factors or the elements for which an application, under

section 19(2),

for which the Chief Electoral Officer would be satisfied, it sounds as

if there’s no judgment applied to that. Is that correct?

Hon. D. Eby:

As usual, I should turn to the staff before I pop to my feet. The

staff have pointed out that 19(2)(

c) would require some level of

judgment to be applied by the Chief Electoral Officer. This is the

section relating to the requirement for “a statement not exceeding 200

words, setting out why, in the opinion of the applicant, the recall of

the Member is warranted.” So if there was a bunch of gibberish or if it

applied to a different member, then some level of judgment on the part

of the CEO would be required.

M. Lee:

In terms of that statement…. Thank you for that clarification.

What the Attorney General just mentioned is if the statement was not

relevant, wasn’t relevant to the member in question, was “gibberish” —

the term that the Attorney General just referred to — or the applicant

got the wrong member. Is that the bar in which that statement is to be

judged? I would just like to confirm for the purpose of this bill that

that is the bar that the Chief Electoral Officer is

reviewing.

Hon. D. Eby:

None of this is part of the bill. None of this is changed by the

bill that’s in front of the House. The statement…. The test is: does the

CEO believe that the CEO has a statement not exceeding 200 words,

setting out why, in the opinion of the applicant, the recall of the

member is warranted? If, in the opinion of the CEO, yes, they’ve

received such a statement, then that requirement will be met. If the

opinion is no, that the statement requirement has not been met, then the

answer will be no.

M. Lee:

Thank you for that further clarification. Just again, if I heard

that correctly, it is the mere receipt or an inclusion of a 200-word

statement or less in the application, applying for recall. That would be

sufficient. As I look at that further, it says, of course: “…setting out

why, in the opinion of the applicant the recall of the Member is

warranted.”

Is there any judgment employed by the Chief Electoral Officer, as

to looking at the reasons for which the recall of the member is

warranted, that that is the description that the applicant is including?

Is there any judgment, any review of that statement by the Chief

Electoral Officer, in terms of the content of the statement, other than

to confirm that it is the correct member and that it’s relevant to that

member?

Hon. D. Eby:

I, perhaps mistakenly, attempted to provide examples to the member

section 2(

c) when the CEO might feel that the CEO has not received a

statement. This is something that is in the judgment of the CEO —

whether or not they’ve received a statement not exceeding 200 words,

setting out why, in the opinion of the applicant, the recall of the

member is warranted.

This is a judgment call on the part of the CEO. I don’t imagine

that they would spend a lot of time, lying awake wondering about whether

or not they’ve received a statement. It would be fairly apparent. In any

event, that’s why we employ the Chief Electoral Officers, to make

judgment calls like this.

Just again, to the member, the bill does not propose to change any

aspect of this particular section.

[4:00 p.m.]

M. Lee:

I’d just like to…. I appreciate what the Attorney General has

said, but there are ways in which this

section is being referred to in

this bill.

Let me just ask, though, in terms of subsection 19(2)(d), that

particular requirement that there be “a signed statement of the

applicant that he or she is not disqualified under this Act from making

the application,” is there a prescribed form of that

statement?

Hon. D. Eby:

Again, another

section not part of this bill, I’ll point out to

the member, but I will do my best. I’ve asked staff, if the member is

interested, to try to get a copy of the form that Elections B.C. uses

for recall. It is our guess, although it is just that, that at the

bottom of the form, there’s a declaration that somebody fills out with

all this information, and then they sign the declaration on the form.

But we don’t have one with us because the bill does not relate to this

section.

M. Lee:

I appreciate that the specific

section 19 is not being amended by

this bill, but as we continue to consider sections of this bill coming

up, it is included by reference. That’s the reason why I’m asking these

questions, to get an understanding. The alternative, of course, would be

to proceed to those sections and come back to this section. We could do

it that way too, but since we’re here, let me just ask one further

question, at least, at this juncture.

I appreciate that the form is not here, but perhaps I could ask

the question, with staff present, if I could get a sense of this. What,

to the Attorney General, is the understanding of the kinds of aspects

and factors that would go to disqualification of the applicant under

this act that might be referenced in that prescribed form? Are there

particular factors that the Attorney General and staff are aware of that

would factor into that disqualification? It may well be that it’s spoken

to in the act itself, but I would appreciate if they could assist me in

referring to those applicable sections.

Hon. D. Eby:

You have to be a registered voter in the district that you’re

applying for the recall to be initiated in. That’s one prerequisite in

order to be able to sign that declaration. Another is if you’ve filed a

previous recall application and you have not filed a report following

the conclusion of the recall period, then you would also similarly be

disqualified. Those are a couple of examples for the member of people

who may be disqualified from initiating a recall campaign.

M. Lee:

In terms of sub (

c) of that section, it refers to the words “issue

the petition in the form set out in the regulations.” Appreciating that

there is much to be determined by way of regulation, I’m interested to

know at this juncture what kinds of content would be in that petition,

if the Attorney General can share at this point a sense of what that

petition form would look like.

[4:05 p.m.]

Hon. D. Eby:

Identical to the existing form.

M. Lee:

And the existing form, though, is what?

Hon. D. Eby:

It’s set out in the regulations.

Section 4 approved.

section 5.

M. Lee:

Can I first ask the rationale for the inclusion of this new

section?

Hon. D. Eby:

The bill proposes strict limits on third-party advertisers,

spending limits and source-of-donation limits. They’re all defined in

terms of petitions. So it’s a spending limit of X per

petition.

If you have multiple petitions started at the same time, what you

have, in effect, is the ability to circumvent the limits by starting

multiple petitions that run at the same time, because they each have

their own spending limit and donation limit. This is an aim to address

that particular mischief.

M. Lee:

I’m just trying to walk through the explanation that was just

given. If there are multiple recall petitions that are brought forward,

which the current act permits, each of those recall petitions still

needs to meet the requirements under

section 23, which includes the 40

percent of total number of individuals who are entitled to sign the

recall petition and submitting that within the 60 days.

Each of these multiple petition campaigns, if they’re operating,

has to meet the same test. I don’t understand, then, why the funding

requirements are specific or would be somehow prejudicial in terms of

the overall, because each of these campaigns needs to meet the same

threshold. They’re separate campaigns. So to what degree is the Attorney

General seeing these campaigns as being tied together in some

way?

Hon. D. Eby:

It’s not me. It’s the Chief Electoral Officer.

In the 2003 report by the Chief Electoral Officer, recommendation

13 is “prohibit concurrent recall petitions in an electoral

district.”

“The act does not limit the number of recall petitions that may be

issued in an electoral district. There may be numerous concurrent

petitions against one MLA.

“Since each recall petition has a separate expense limit, concurrent

petitions could be used to effectively increase the expense limits for

proponents or MLAs.

“Though recall expenses, including advertising, related to the

second recall campaign would be subject to the expense limit for the

second petition, the initial campaign may benefit from the expenditures,

allowing the participants of the two campaigns to strategically direct

their expenditures.

“Recommendation: prohibit concurrent recall petitions in an

electoral district.”

That’s the mischief that it’s aimed at.

M. Lee:

Is there any specific example of this mischief in the 27 recall

campaigns that have been done in the history of this

legislation?

[4:10 p.m.]

Hon. D. Eby:

There was an example of this in a case related to an MLA in the

1990s where an individual who was believed to be sympathetic to that MLA

started a concurrent recall petition. That had the effect of increasing

the MLA’s spending limit, essentially doubling it. The individual

initiated the petition and then did not collect signatures. That had the

effect of increasing the MLA’s spending limit while not increasing the

spending limit of the proponent.

I imagine that that formed the basis of the Chief Electoral

Officer’s recommendation to government in 2003, which then formed the

basis of this particular provision.

M. Lee:

Coming back to that example, as I just heard, where a second

recall campaign was started by an individual, presumably someone who is

resident in the electoral district of that MLA and who was sympathetic

to that MLA. In the case of the current legislation, as we took some

time to review, under

section 19 of the act, there is no current ability

of the Chief Electoral Officer to deal with that mischief.

That is, as we walk through the various elements of an application

for which a Chief Electoral Officer would be satisfied under

section

20…. Again, there’s the name of the member, the name and residential

address of the applicant and a statement not exceeding 200 words, which,

as we were talking about earlier, just goes through the reasons for the

recall of the member. There seems to be a pretty low threshold of review

by the Chief Electoral Officer, at least in the discussion we were just

having in the compressed time period that we have here.

And the signed statement that that individual is not disqualified

under the act, meaning that person is a registered voter in that

electoral district, and some other specific information relating to that

recall campaign. There is other information that may be prescribed, but

currently, there is nothing under this act which deals with that

mischief.

To the Attorney General: is the Attorney General concerned about a

campaign that might be started which has no bona fide basis? That is,

it’s not really a true recall campaign. It’s started by an individual

who is trying to, in the words of the Attorney General, be sympathetic

to the member in that instance.

Hon. D. Eby:

That is an issue under the current act. I agree that, from the

member’s perspective, the same issue continues under the proposed

amendment.

[4:15 p.m.]

I will note for the member that, if that was attempted, I suspect

it would backfire. It would become quite apparent that an individual had

filed a recall campaign and was taking those steps to advance

it.

The concern that the Chief Electoral Officer directed government

to look at was the fact that multiple recall petitions could be filed to

escalate spending limits and to undermine the intention of the act in

having spending limits, something that — there were credible allegations

that had been made — had happened before. Certainly, that is something

that we took seriously and included in these provisions.

M. Lee:

When I look at the proposed amendment under

section 5 here and

look back at the relevant sections of sections 19, 20, 21 and 23 of the

act, I don’t see anywhere there that the Chief Electoral Officer is

required to monitor the steps taken by the successful

applicant.

I see requirements at the end, under

section 23. They are that “60

days after the date on which the petition was issued under

section 20,”

which starts the process, the petitioner must come back and demonstrate

that the petition has now been “signed by more than 40% of the total

number of individuals who are entitled to sign the recall petition under

section 21.”

The way I’m reading this, and I’d like the Attorney General to

confirm this, there are no interim steps where there’s an interim

report, for example, that the Chief Electoral Officer needs to monitor

the progress during the 60-day period. That it is…. Well, let me just

stop there. Are there any interim steps or any monitoring going on by

the Chief Electoral Officer as to the progress of the petition during

that 60-day period?

Hon. D. Eby:

The accountability for this process comes after the 60-day period.

Somebody brings in their final report to the Chief Electoral Officer.

During the process of collecting signatures, maybe the Chief Electoral

Officer would get a complaint from someone that somebody was acting as a

canvasser and they weren’t registered. During that period, the Chief

Electoral Officer will be certifying, potentially, additional

canvassers.

If the member is picturing day-to-day oversight or report-back

requirements on the part of a proponent, there are no such requirements.

There have not been, and there are none in this bill that relate to that

kind of oversight. But there are definitely oversight provisions in this

bill now related to donations and reporting of the source of funds that

are used in a recall campaign.

M. Lee:

This is, I think, a very important

section of the bill to be

reviewing here in detail. As the Attorney General just responded, there

is no…. Let me just ask the Attorney General. In terms of the statement

he made earlier in response to the concern about having a second recall

petition being launched, in the example that he gave, that second

petitioner wouldn’t get very far through the process if he or she is

shown not to be taking steps to advance it. Can I ask the Attorney

General, again, to explain what he meant by that, then?

[4:20 p.m.]

Hon. D. Eby:

The issue is when you fill out the form to initiate a recall

campaign, and then you just don’t do anything. As soon as you fill out

that recall campaign and formally file it as a second or a third or a

fourth or a fifth recall campaign against a member, each time the

spending limit adds and adds and adds. The third-party advertisers or

the MLA can spend more and more money, and it defeats the purpose of the

spending limits that are contained in the bill. The whole purpose of the

bill was to get the big money out of politics.

M. Lee:

I don’t hear in the response any clarification by which…. The

Attorney General said earlier, from what I heard when we asked the

question the first time, that it is the consideration by the Chief

Electoral Officer to not let a second or third or fourth petition

campaign get away with, so to speak, a bogus referendum petition

campaign — that, as the Attorney General said earlier, if that second,

third or fourth campaign took no steps to advance it, that campaign

wouldn’t be able to continue. Those words he did not say, but that’s

what I’m wondering. Is there anything here, that says in the act, that

monitors the progress of which those petitioners run through their

process for a recall?

Hon. D. Eby:

What the member…. I’m trying to read between the lines and

understand what the member is asking. I think that he’s asking: why

isn’t there a provision here that allows the Chief Electoral Officer the

discretion to assess whether a proponent is making a meaningful,

good-faith effort to recall a member? I think that’s what he’s asking —

and then, presumably, power to discontinue a recall petition and then to

prohibit an individual from filing again. Because they didn’t make a

good effort the first time, they shouldn’t be required to file

it.

That is not something that we’ve seen come forward in terms of an

issue that’s been identified for us by the Chief Electoral

Officer.

What has come forward to us from the Chief Electoral Officer is to

prohibit concurrent recall petitions in an electoral district. I heard

all the members’ speeches on the other side during second reading in

which they explained in great detail how this was all part of my plan.

This is a 2003 report from Elections B.C., from the Chief Electoral

Officer, saying that the act “does not limit the number of recall

petitions that may be issued in an electoral district. There may be

numerous, concurrent petitions against one MLA. Since each recall

petition has a separate expense limit, concurrent petitions could be

used to effectively increase the expense limits for proponents or

MLAs.”

That was the issue that was identified for us by the Chief

Electoral Officer, and it’s the issue that is addressed in this

particular section. It has particular bite because now we’re not just

talking about spending limits for an MLA who’s subject to a proponent,

subject to a recall petition, but spending limits for third-party

advertisers that previously did not have restrictions. So there’s even

more reason for us to take this recommendation very seriously from the

Chief Electoral Officer.

M. Lee:

Well, let me just say that I’ve been…. Earlier in this compressed

and limited committee session, I referred to the 1993 report of the

parliamentary committee, the Standing Committee on Parliamentary Reform,

Ethical Conduct, Standing Orders and Private Bills, which I’m a member

of. Their report back in 1993 also dealt with this. I would suggest, as

we talk about spending, that there are an additional 40 pages of this

bill that deal with limitations — reporting limits, as the Attorney

General has referred to them.

We won’t go through those sections, but the

section of this report

says this: “The committee recommends that there be no limit on the

number of opportunities available to a member’s constituents to initiate

a recall. Any set of disgruntled constituents should be permitted to

initiate the recall procedures on any basis. The committee recommends

that there be no limit on the number of concurrent recall proceedings to

which a member would be subject.”

[4:25 p.m.]

Obviously, I’m not going to read the whole entirety of the report

into the record here, but there are reasons for which this committee

reviewed recall when it was first coming about, back in 1993 for 1995

being put into force.

This is an example of the level of thinking around alternative

proposals. So I would suggest to the Attorney General that there is

definite thinking around why it’s important to ensure that voters in a

particular electoral district be given the full opportunity to initiate

recall campaigns.

Let me say this. Because there are no requirements under the act

for review of progress against a recall petition, that means what the

Chief Electoral Officer was trying to address by way of expenditures is

being addressed in a different way. It has a different meaning in the

context which we are dealing with.

Perhaps I can ask the Attorney General if there’s been any advice

or any recommendation that the Chief Electoral Officer would have spoken

to, in reviewing this legislation, regarding the concern of — under the

current section,

section 20.01 of the bill — proposing this new

section

to the act, where the Chief Electoral Officer, once he or she issues a

recall petition, shall not introduce any further recall petitions once

that first one has been accepted?

Has the Chief Electoral Officer made any comment on concerns

regarding what happens when the first applicant turns out to be

bogus?

Hon. D. Eby:

I’ll just walk the member through. He’s got a report from

If we had no experience of history, and this was a brand-new act

that was just showing up in the House, I think many of us that were

sitting on that committee might nod our heads at that sentiment — start

as many recall petitions as you want. I can understand how the members

in 1993 got to that place.

In fact, the act that passed contained that exact provision. You

can start as many as you want. You can have as many concurrent petitions

as you want.

Then there was experience between that 1993 report that the member

has and today. That experience was that there was mischief, and

particularly, the mischief was that in filing concurrent reports, you

can game the spending limits.

Then in 2003, a decade later, after a decade of experience with

the act, the Chief Electoral Officer provided recommendations.

Recommendation 13: “Prohibit concurrent recall petitions in an electoral

district.” A very straightforward recommendation based on this issue

that had been experienced over the decade following the report that the

member read a bit of into the record. Based on that experience over a

decade, here is the recommendation about making sure that the intent

around the spending limits is achieved.

Now we’ve got this bill in front of the House. It actually adds

another set of spending limits — our government argues, a very important

set of spending limits — related to third-party advertisers. In the

United States, they call them super PACs.

We believe that the issue that the Chief Electoral Officer

identified in 2003 is even more germane now. It’s even more relevant,

because there’s a second set of spending limits in this bill. While the

issue was important in 2003 with the spending limits for proponents and

MLAs, it’s now even more important, because you’ve got these third-party

restrictions, as well, in this bill.

Now, I also want the member to take a step back and evaluate how

he…. He wonders how the Chief Electoral Officer will evaluate whether

the Chief Electoral Officer got a 200-word statement outlining whether

or not an MLA should be recalled. How are they going to make this

difficult decision?

Well, how are they going to make the decision about whether

someone is a bogus applicant or a legitimate applicant if someone who is

disgruntled and angry with an MLA shows up and files a recall petition

but they have limited ability or limited means or limited time and they

only collect a few signatures but they are super angry with the

MLA?

[4:30 p.m.]

Would the member suggest that the Chief Electoral Officer should

apply a per signature…? “You didn’t get enough signatures, so therefore,

you’re bogus.” Or maybe you sit down for an interview with the Chief

Electoral Officer. You’re not sufficiently angry with the MLA, so you’re

a bogus applicant.

[R. Chouhan in the chair.]

I think that what happened previously, the public concern and

derision around somebody sympathetic to an MLA filing a concurrent

petition, is a caution to all members that that is bad news. That is not

helpful. That is a very good restriction on members’ activities to

address the concern that the member is talking about.

Also, I hope that the member understands why the Chief Electoral

Officer got to this place, even following the 1993 recommendations,

because there was a decade of experience there, a decade of actual

experience, of seeing how things played out. Now it would be even more

acute, with our interest in restricting the activities related to

third-party advertisers.

M. Lee:

Well, I understand what the Attorney General is suggesting, but I

still come back to the concern which the Attorney General has

acknowledged around that one example. We’re talking about one example

out of 27 recall campaigns, one example that occurred, which has

focused, supposedly, the basis for which this amendment is being

included in this bill.

Nothing in what the Attorney General is saying have I heard as to

preventing or dealing with an individual, sympathetic to the MLA, coming

forward and starting a petition and how the Chief Electoral Officer will

deal with that. That means that that sympathetic individual can run out

the course of the 60 days. There are no interim steps. There is no

interim monitoring. There’s nothing at the front end, as we’ve been

talking about, vis-à-vis

section 19. There’s nothing in the interim

period.

That means that the applicant can get to the end of this period in

60 days and say: “Well, I didn’t get 40 percent. I came up short.” Of

course, as the Attorney General indicated in his previous response,

nothing prevents a second sympathetic individual, who may be related to

that first sympathetic individual, from immediately launching another

recall petition, which will have the effect, under

section 20.01, of

blocking other bona fide recall petitioners.

The spending limits are clearly set out in this bill around third

party and the like. We will go through those. In my view, that’s a

separate issue. It’s a separate issue of concern because, effectively,

this provision of the bill can block out any other set of individuals

who have a reasonable basis to bring forward a recall petition — not

so-called friends of the MLA or those who are sympathetic to the

MLA.

Again, I ask the Attorney General: what response does he have to

this possibility, which he has acknowledged is a possibility? Is that

not a concern to the effect of recall campaigns in this

province?

Hon. D. Eby:

The member said that this

section is not related to the spending

limits. It’s totally related to the spending limits. That’s why it’s

here. It’s not me making the connection. It’s the Chief Electoral

Officer.

I just challenge the member. I do understand the concern that he’s

raising. I totally get it. But how do you make it work? How would you…?

What bill would you write? What test would you put in place for the

Chief Electoral Officer to say that someone did not make reasonable

efforts? What kind of criteria, what kind of interview process or

assessment?

For the member to spend so much time quizzing me about how the

Chief Electoral Officer would know whether or not the Chief Electoral

Officer got a 200-word statement that was adequate, how this same member

now believes that the Chief Electoral Officer could administer a

standard of adequate efforts of recall or sufficient good intent for

recall….

[4:35 p.m.]

What has happened in the past — I told the member — is that this

issue was identified, and it became notorious. There was a report done

on it. There were recommendations for reform that came out of it. It was

a subject of public concern. I think that should be a caution to any

member that was contemplating either tolerating or soliciting or

allowing supporters to behave in the manner proposed by the member,

which is a pretty good caution, I think, to all members.

I just say to the member: “Okay, it sounds fine, in theory. But

how do you actually work it out?” I am not sure what he has in mind

exactly.

M. Lee:

Well, again, let me be clear. My concern is that under the guise

of dealing with spending in a recall campaign where, as we said from the

outset, the proponent has $30,000 or $40,000 to spend over top, in

total…. So $30,000 or $40,000 — that’s what we’re talking

about.

Then we have third-party advertising sponsors who are now limited,

under this bill, at the $5,000 level — less than what a third-party can

spend in a by-election in a 28-day campaign. But we will get to that

point.

We are dealing with what is addressing an issue around spending,

which seems to miss the point. The point being that it has the real

potential…. Because of the lack of ability to provide oversight under

the current act, the lack of opportunity to review whether the initial

application is bona fide in the first instance, we have a potential

loophole, as one might describe it, for this whole recall process to be

circumvented. That is the concern.

The Attorney General asks — well, attempts to shift the onus on

myself and other members of this House: “How would you fix it?” Well,

I’ll tell you this. It is a concern that we’ve been saying, from the

first time I stood up in this House when this bill was introduced, on

second reading and every other speaker on this side of the House who

followed. We’ve been saying this since the beginning of the introduction

of this act when we had this bill, when we had the opportunity to speak

to it.

Today this government cut off this process. They cut off the

ability, without notice, to provide any discussion or to propose any

amendments to this bill. So I think…. This is not a word I usually use,

but I hear it a lot from government: rich. It’s rich, whatever that’s

supposed to mean. It’s not my colleague from Langley East. My point

being whatever that’s supposed to mean…. It’s nonsensical. It is

really…. To say to me right now: “What suggestions would you have…?”

Well, I can go into those. But the fact of the matter is we’re not being

put in a position to actually effect and propose any amendments to this

bill because the debate has been cut off.

Let me say this. I think that what should’ve been considered here

is more detail in the initial application, more detail to determine

whether this applicant for a recall petition is a true bona fide

applicant. The additional test and the measures of penalties around what

happens if that applicant proves not to be bona fide, to the point again

where the Attorney General said earlier: “Well, if that applicant

doesn’t take steps, it’ll be known.” There’s no penalty to that right

now. There are no ramifications for that sympathetic person who’s

sympathetic to the MLA.

[4:40 p.m.]

I would have thought the government, in considering that whole

solution — the solution that they’re putting in this

section of the bill

— would have considered: “Well, why don’t we deal with the other part of

it, not just the spending part? Why don’t we deal with the fact that

that person was doing it for ill intent and wasn’t doing it for a bona

fide reason?”

Why didn’t this government deal with that? There should be

penalties for that. Why aren’t there penalties for that? If that

applicant makes no progress, doesn’t demonstrate the steps, as the

Attorney General talked about, takes no steps to advance it, there

should be ramifications for that. There should be monitoring around how

that applicant team is progressing with the petition.

I ask: what, if any, steps or considerations were taken to

consider how to deal with a sympathetic proponent who turns out to be

someone who’s not doing this with any appropriate intention?

Hon. D. Eby:

I try to imagine, flipping through the second reading speeches,

how the member and his colleagues would have reacted had there been a

section in this act saying: “If you are found to have been filing a

recall campaign petition with bad intent, according to the government,

then you will be punished. You will face penalties.” I wonder what they

would have thought about that.

I wonder what they would be standing up and asking me about right

now. “How dare this government intimidate British Columbians out of

filing petitions — that some arbitrary person that they handpicked will

determine that they had bad intent? How dare you?” Now the member stands

up and says: “How dare you not try to determine people’s intent on

recall campaigns?”

The defence, the explanation, the whole justification for this

section comes from the Chief Electoral Officer’s recommendation in 2003

to government about changes that needed to be made to the act. Prohibit

concurrent recall petitions in an electoral district. This

section does

that.

M. Lee:

I think, obviously, we don’t have the full opportunity to consider

all of the different ways to deal with this consideration, in terms of

whether this hole in the act, in the bill itself, can be rectified. I

dare say that right now the Attorney General recognizes it’s an issue,

yet he has no solution for how to deal with it or how to address it. The

Chief Electoral Officer has, under

section 19, an oversight role, a role

where he or she must be satisfied with what’s been filed.

The requirements of a recall petition can be set out more clearly

in this bill. It is entirely possible, and this government…. For a

government that likes to add regulation on top of regulation on top of

regulation, with the bills that we’re seeing on the floor of this House

this week and last week, why is it that there’s no provision for the

Chief Electoral Officer to deal with whether this recall petition is

genuine, authentic, appropriate, whether this recall petition is just

being done to game the system?

They’ve set it up where…. Again, it’s entirely possible, as the

Attorney General said, for a recall petition to come forward by an

individual who’s sympathetic to the MLA. Once that occurs, no other

petitions can go forward.

Again, does the Attorney General have no concern at all regarding

that possibility, which basically shuts out any other British Columbian

from filing a recall petition?

Hon. D. Eby:

I have the member’s point. He has my answer, now repeatedly, on

this topic. I’m not sure I have anything else to add, except that I

disagree with the member. I’m grateful to the Chief Electoral Officer

for providing recommendations which are incorporated into this

bill.

[4:45 p.m.]

J. Rustad:

Listening with great intent to

section 5 with regards to this, I

just want to clarify for the record on this…. If the minister could

clarify this, with regards to any application that comes forward to the

electoral officer for a recall, what is the priority in terms of the

determination of an application that comes to an electoral

officer?

Hon. D. Eby:

The act does not direct the CEO in that respect. So it would be a

matter of policy set by the Chief Electoral Officer.

J. Rustad:

Through the discussion that’s happened, there is the potential of

a frivolous campaign being started by somebody sympathetic to a

particular individual who might be subject to a recall campaign. The

challenge will be, if it is first-come, first-served, that then somebody

could, potentially, put an application in to block somebody else from

putting in an application. Could the minister please confirm whether

that scenario could potentially play out?

Hon. D. Eby:

I don’t spend a lot of time in hypotheticals. I think the issue

that the members have raised of a potential supporter of an MLA filing a

recall petition to game the system has actually happened under the old

act. We don’t have to talk about hypotheticals. That actually happened.

It was the subject of much public comment and concern. It backfired in a

significant way, resulted in the recommendations that came forward to

us. I imagine the exact same thing would happen with any attempt to game

the system by an MLA or their supporters.

J. Rustad:

I’m simply trying to point out that this particular

section

creates a flaw in the Recall Act. In the past, the Recall Act…. Multiple

applications could come forward. Multiple applications could proceed. A

legitimate application could not be blocked by somebody trying to game

the system.

This particular

section creates a hole that could, in effect, make

a sham of the recall application. That’s why this is such an important

section, because it could be gamed out. It doesn’t matter who’s being

recalled. It could potentially be gamed out. You don’t have a legitimate

process.

I understand the point that the minister is trying to make with

regards to financing and having multiple applications come forward to

try to game the system on either side to fund particular campaigns.

There’s an easy answer to this thing, which is simply….

It doesn’t matter how many applications come forward over a

particular period of time. There is a spending limit in total, not per

application. By applying something like that, it would eliminate this

loophole.

So the question to the minister is: is this something that the

minister has considered in order to prevent the creation of this

loophole that could, in effect, eliminate the intent of the recall

legislation?

Hon. D. Eby:

The member proposes what he calls a simple solution to the

problem. You just make a defined spending limit over a time period

rather than per petition. The exact same issue arises.

You file. You’re a proponent of a recall campaign. You’re very

excited to recall the MLA. You go to Elections B.C., and you file. Then

a couple of days later, you get a call from Elections B.C. “I’ve got

news for you. Someone has filed a second recall campaign against this

MLA, so your spending limit has just been cut in half. So they get half,

and you get half.”

Then, like a week later — oh, another petition filed in the same

time period. “We’ve prorated it over the days, so your spending limit

has just changed again because there are now three petitions over this

time period and some of them overlap with yours. Some of them don’t.” It

is an unworkable proposal. The member calls it simple. It is not

simple.

What is straightforward is the Chief Electoral Officer’s

recommendation to government in 2003, which is implemented in this bill

— someone who spends a lot of time thinking about elections, about the

systems that we have in place and how to make them workable. His

recommendations, the previous Chief Electoral Officer, in that report

are incorporated in this section.

J. Rustad:

I very much appreciate, to the minister, that he does seem to like

to engage in hypothetical scenarios, as he just happened to use one with

regards to his response. Interesting how he chooses one over

another.

[4:50 p.m.]

Regardless of that, the reality is quite simple. A recall campaign

is not determined based on a $5,000 spending limit for advertising. A

recall campaign is based on how many signatures you get in a riding to

recall an individual that is the subject of a recall campaign. That’s

what a recall campaign is all about.

Spending is part of it, and part of it is advertising and those

sorts of things. Clearly, the minister seems to think that $5,000 is

going to go an awful long way. Whether it’s $1,000, $2,000 or $5,000,

quite frankly, is somewhat irrelevant. The fact of the matter is that

you need the signatures in order to recall an individual, and this

particular

section creates a loophole.

The minister has already admitted that a sympathetic application

could come forward. Essentially, now this has created the opportunity

for a block. To my opinion, what you’re looking at here is a piece of

legislation that is being rammed through, that is not being given proper

consideration and that has not had the opportunity to explore these and

to play these things out.

I know that my colleague has many more questions on other

sections, so I don’t want to take up more time with regard to this, but

this is a loophole that has been created. The fact that the minister

seems to be reluctant to even identify or to recognize that this

loophole has been created is very disturbing. The fact that there are

other ways it could be done, other options that could be looked at to

deal with the financing side, and that have been ignored is very

disturbing.

Quite frankly, I would love to use words that are unparliamentary

in terms of the definition of it, but it speaks to something that

clearly shows a lack of what I would call integrity in terms of the way

that this bill should have been put together and brought

forward.

Interjections.

J. Rustad:

I appreciate the fact that there are members from opposite

heckling — that’s being allowed in the Legislature at this point — but

the reality is very simple with regard to this being brought

forward.

There are ways that these things could have been dealt with and

that should have been dealt with, to be able to be done independently,

impartially and to deal with these loopholes. It could very easily have

been carried forward. This is a recommendation that comes from 15 years

ago by the electoral officer coming forward.

In this particular

section it’s very apparent that there is a

loophole that is being created. The simple fact that we’re not able to

solve this for the betterment of democracy is very, very sad. It’s very

sad for this Legislature. It’s a very sad mark on this government, in

terms of their reluctance to plug a loophole that could, obviously,

create this sort of a challenge.

With that, I would ask one last time for the minister to recognize

the fact that there is a loophole that is being created here and that it

potentially will run amok with the recall legislation. I’d ask the

minister to consider potentially standing down this

section of the bill

so that, in some way, we could work out a solution that would help to

avoid this particular loophole that’s been created.

Hon. D. Eby:

I can only assume that the member did not receive the letter,

dated November 6, from the Conflict of Interest Commissioner. It

includes, among other things: “The questions you pose do not give rise

to a live issue, or controversy, for opinion from me.” That conflict

complaint was dismissed without submissions to me and without the need

to provide me with a copy of the complaint in the first place, which was

the decision of the members on the other side.

Can I just raise that issue in terms of the tone and tenor of the

discussion here? This is a recommendation from the Chief Electoral

Officer, in 2003, which has been incorporated into the bill. To have the

member stand up and make the kinds of accusations that he has…. I mean,

that’s his choice, about how he wishes to conduct himself in this place.

I just disagree with him. I disagree with him that it’s a loophole. It’s

not. It’s by design, by the Chief Electoral Officer. We may have to

agree to disagree on this point, although I do note his earlier comments

as well.

M. Lee:

I wanted to just follow on from my colleague the member for

Nechako Lakes.

[4:55 p.m.]

I just wanted to say that, in reference to the letter that came

back from the commissioner, that is the review for those particular

provisions of the conflict-of-interest act for the members of this

House.

Overall, when the government has the opportunity to look at what

it’s doing in the context of the timing that they’re bringing this

forward, I would urge this government to consider what the member for

Nechako Lakes just proposed, which is that you’re about to bring closure

to this debate in about an hour’s time, at this point. You’re leaving

what is, in our view certainly, a loophole in this act. As this loophole

has the potential to be exploited, the government must consider, in the

context of what might occur in the span of a week, meaning that the

18-month period is about to expire in a few days.

When a petition comes forward and is accepted by the Chief

Electoral Officer on the basis of the lack of oversight that’s provided

in this act, under the current act, we’ll see what confidence British

Columbians would have in this government. I certainly would urge the

government to consider standing down this

section of the bill and not

proceeding, on this basis.

The way and the manner in which this government has approached

what was a recommendation from the Chief Electoral Officer, back in

2003, was to deal with one issue of consideration around spending, which

we do understand. But to do it in a way that would present another

loophole to be exploited, which effectively guts the ability of voters

to come forward….

Again, with that in mind, I would ask the Attorney General,

through you, Mr. Chair, what my colleague from Nechako Lakes just

proposed — consideration of other ways in which this issue or this

concern could be dealt with. In the interests of fairness, the overall

spending limit could be considered for multiple recall campaigns. In

fact, when you look at what’s being brought forward, with the existing

spending limits that are being proposed in this bill, there already are

limitations on the expenditures for recall campaigns that are being

proposed in this bill in other ways, which would address most of those

considerations.

Let me ask this question this way, then. What specific item around

expenditure is dealt with here, under this provision of this bill, that

is not dealt with by the spending limits imposed in the other sections

of the bill?

Hon. D. Eby:

This

section deals with a concern around a multiplication of

petitions resulting in a multiplication of spending limits, defeating

the spending limit provisions of the bill. The reason why this answer

sounds familiar is that I’ve given it a number of times now.

M. Lee:

Well, again, I appreciate that the answer from