1977 Legislative Session: 2nd Session, 31st Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, JULY 25, 1977

Afternoon Sitting

[ Page

3973 ]

CONTENTS

Routine proceedings

Heritage Conservation Act (Bill 77) Hon. Mr. Bawlf.

Introduction and first reading –– 3973

Oral questions.

Compliance of Church Realty with Companies Act. Mr. Levi –– 3973

Relocation and retraining of Railwest employees. Ms. Sanford –– 3973

Representations to CBC. Mr. Gibson –– 3974

Government markup on liquor. Mr. Wallace –– 3974

Vancouver Hotel rate information. Mrs. Dailly –– 3974

Scope of ferries inquiry. Mr. Nicolson –– 3975

Hog growers' problems. Mrs. Wallace –– 3975

Trade practices action re D & V Janitorial enterprises. Mr. Levi ––

Motions and adjourned debate on motions.

On motion 15.

Hon. Mr. Gardom –– 3976

Mr. Macdonald –– 3982

Mr. Gibson –– 3984

Mr. Wallace –– 3987

Hon. Mr. Mair –– 3990

Hon. Mr. Gardom –– 3991

Division on the motion –– 3993

Committee of Supply: Ministry of Education estimates.

On vote 15 8.

Mr. Macdonald –– 3993

Hon. Mr. McGeer –– 3994

Mr. Barrett –– 4003

Hon. Mr. McGeer –– 4005

Mr. Strongman –– 4008

Matter of privilege

Systems Corporation employment advertisements. Mr. Levi –– 4008

The House met at 2 p.m.

Prayers.

HON. K.R. MAIR (Minister of Consumer and Corporate Affairs) : Mr. Speaker, I have great pleasure in introducing to the House two of my constituents and friends, Mr. Dennis Coates and his wife, Deanna, from Kamloops.

MR. J.J. KEMPF (Omineca) : Mr. Speaker, in the precincts this afternoon are two individuals from my constituency representing Apollo Forest Products -Mr. Dean Shaw and Mr. Dave Parker. They are in Victoria to discuss with the Forest Service officials the continued equitable distribution of allowable cut between large and small operators in our province. I would ask the House to make them welcome.

MR. L. NICOLSON (Nelson-Creston) : Mr. Speaker, I have the honour of introducing two members of the riding of Nelson-Creston, Lyle and Vera Kristiansen, from Nelson.

MR. C.M. SHELFORD (Skeena) : Mr. Speaker, I would like the members to welcome Mr. Joe Banyay, chairman of the Kitimat-Stikine Regional District, along with John Pousette, manager, and accompanied by his good wife and daughter.

MRS, P.J. JORDAN (North Okanagan) : Mr. Speaker, I don't wish to transgress your ruling, because you have denied me the right of reading the names into the record and I respect this

MR. SPEAKER : Order, please.

MRS. JORDAN : Well, Mr. Speaker, I think it's important that the people of British Columbia know that our teams at the Canadian three-day event, the national championships, have fared so well. Many members in this House represent these people in their constituencies, and I would hope they would wish them well.

Introduction of bills.

HERITAGE CONSERVATION ACT

Hon. Mr. Bawlf presents a message from His Honour the Lieutenant-Governor:

a bill intituled Heritage Conservation Act.

Bill 77 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

Oral questions.

COMPLIANCE OF CHURCH

REALTY WITH COMPANIES ACT

MR. N. LEVI (Vancouver-Burrard) : I have a question for the Minister of Consumer and Corporate Affairs, Mr. Speaker. With reference to the registrar of companies file 73761, Church Realty Ltd., the latest report on this file, dated April 12,1975, and filed on April 17,1975, shows William Austin Hodges, a director of Surrey Dodge Ltd., as the director of Church Realty. Last Thursday, Hodges told The Vancouver Sun that he ceased to be a director in March, 1975, and, in any event, that all he had been doing was serving as a figurehead for the real owners.

My question to the minister is: As no annual report or change of directorship notification has been filed since 1975, as required by the Companies Act, will the minister act immediately to force this company to comply with the Act so that the public can find out who the real owners were in 1975 and 1976, and who they are now?

HON. MR. MAIR : To the lonely little petunia in the onion patch ...

MR. SPEAKER : Order, please.

HON. MR. MAIR : ... I'll be very pleased to take that question as notice and report back to the House.

RELOCATION AND

RETRAINING OF RAILWEST EMPLOYEES

MS. K.E. SANFORD (Comox) : My question is to the Minister of Labour, In view of the Premier's failure to visit the community of Squamish as promised, and in view of the failure of the Minister of Economic Development (Hon. Mr. Phillips) to ensure the continued operation of the Railwest plant located in your constituency, I'm wondering what steps have been taken to relocate and retrain the workers who will no longer be employed at that plant.

HON. L.A. WILLIAMS (Minister of Labour) : Mr. Speaker, in circumstances such as those which affect the Railwest plant, there is an arrangement available to the company through agreement with Canada Manpower and with the Ministry of Labour for retraining and relocation assistance to such workers.

Such an agreement was entered between Canada Manpower, this ministry and Railwest some 10 days ago. As a consequence, the services that are available through Canada Manpower for relocation and training will be available to those employees.

[ Page 3974 ]

MR. D. BARRETT (Leader of the Opposition) : The minister said that such an agreement was entered into 10 days ago. Could he give us the exact date and could he table a copy of that agreement with the House?

HON. MR. WILLIAMS : Mr. Speaker, I don't have the exact date in my mind but I'll get the information, and I'll be happy to table a copy of the agreement.

REPRESENTATIONS TO CBC

MR. G.F. GIBSON (North Vancouver-Capilano) : A question to the Premier on an important question on national unity, namely the CBC and its job of representing Canadians to each other. The CRTC recently found that B.C. gets only 0.3 per cent of national news story time and that is largely lightweight stuff like bellyflop contests and the battle of Wreck Beach. I would ask the Premier if he will make representations to the president of the CBC advising him that roughly 11 per cent of Canadians live here in British Columbia largely unknown to the rest of our country.

HON. W.R. BENNETT (Premier) : I thank the member for North Vancouver-Capilano for bringing this statistic to my attention. I was unaware of it. Certainly British Columbia is concerned with letting all parts of the rest of Canada ... and agencies which cover the news that British Columbia should get its fair share of news coverage. I am sure we are a newsworthy province and newsworthy people, and I think you for bringing that to my attention.

MR. GIBSON : I would ask the Premier if he will, at the same time, try to get the corporation to record a second version of the national news in recognition that some things happen in three hours between the time they close down in Toronto and the time we see it here in Vancouver as well.

GOVERNMENT MARKUP ON LIQUOR

MR. G.S. WALLACE (Oak Bay) : To the Minister of Consumer and Corporate Affairs with regard to recent figures published about revenue derived from liquor sales for the year 1975-76. These figures show that consumption only increased by 1.4 per cent but revenue to the government increased by approximately 20 per cent. Can the minister tell the House by what percentage the government markup on liquor was increased?

HON. MR. MAIR : Mr. Member, before I answer that question, perhaps you might break it down. Do you want it in separate categories of liquors, beers, wines and so on or an overall figure? I'll have to take it as notice but I would like to know the terms of reference.

MR. WALLACE : I appreciate the minister's wish for accuracy. I was really referring to the overall figures. The statement was made that really consumption has only gone up in proportion to the increase in population but government revenue, as a whole, went up by about $29 million. I would like the overall percentage figure by which government markup was increased.

HON. MR. MAIR : Mr. Speaker, I'm not sure of the precise figures so I will take the question as notice and return the answer to the House.

VANCOUVER HOTEL RATE

INFORMATION

MRS. E.E. DAILLY (Burnaby North) : This question is to the hon. Provincial Secretary. Could the Provincial Secretary tell the House where she got the information which she released on hotel rates in Vancouver?

HON. G.M. McCARTHY (Provincial Secretary) : Mr. Speaker, that information came from the ministry of tourism, through our department. It was an official release which was made by a management consultant firm. I would like to say, especially since there was so much publicity over the release, that there was some mention about two reports that emanated from the department. There was only one report, and the one report was for the first quarter of 1977 - that is, January, February and March. The comments that were made in the news media following the release were attributable to July of this year - this month.

I would suggest to you, Mr. Speaker, that the comparison was a little like mixing apples with oranges rather than comparing like with like. The first quarter of 1977 compared favourably with the rest of North America in hotel rates.

Additionally, I'd like to say that an added comment that was made following the news release -which was not made within the news release - was that we not only compare favourably, but we really have an additional plus this year in that the U.S. dollar compares now with the Canadian dollar in a more favourable position for trade.

MRS. DAILLY : I have a supplementary to the Provincial Secretary. Were the figures on hotel rates which you used when you spoke, and which you were reported on in the press, the same figures which your ministry had prepared for you?

HON. MRS. McCARTHY : Word for word, figure

[ Page 3975 ]

for figure, very definitely, yes.

MRS. DAILLY : On a supplementary then, could the Provincial Secretary explain why, following her remarks, her own ministry released remarks which were not consistent with the rates she had used?

HON. MRS. McCARTHY : Well, Mr. Speaker, I tried to do that in my earlier response. My ministry did respond to questions that were asked by the media and, when they responded, they did relate to the July figures. As I have confirmed this morning in a meeting with my ministry, they did not give a different picture. In fact, there are not two different stories coming out of the ministry but one, and that is that the first quarter of 1977 does show a marked advantage for people visiting B.C.

I would like to just say in addition, Mr. Speaker, that I think it's really strange that the opposition should be pursuing this. Really it would seem that they don't want to hear a good story.

MRS. DAILLY : We want the true story.

MR. SPEAKER : Regardless of that I believe that the minister knows she must stick to the question that was asked in the supplemental.

HON. MRS. McCARTHY : May I just then elaborate on the question that was asked?

My ministry has confirmed that the figures that they have given me on Friday to release to the media and to the people of British Columbia were correct and that there has been no differential in their statements to the press, even though it appeared that way in reading the newspapers. There has not been any different story given out by my ministry and they have so confirmed.

MR. BARRETT : On a supplementary question, Mr. Speaker, would the minister give the House the name of the consultants who prepared the material?

HON. MRS. McCARTHY : I would like to quote it correctly. If not, I stand to be corrected, but I believe it's Lowenthal and Horvath. If I may, I will send to the Leader of the Opposition the name and address of the management consultants. In addition, I'd be really pleased to suggest to the Leader of the Opposition that I know there is no truth to the rumour that the NDP have some special smile buttons printed which read: "We have a special frown for you.

MR. BARRETT : A supplementary. When the minister sends me the name of the consultants, would she also inform me as to the fee paid to the consultants for this information?

HON. MRS. McCARTHY : I understand that that is a management consultant group which does work for several people including the private sector. We purchase that kind of information from several people such as Pannell and Kerr and the same group. I have no knowledge of it myself, but as I understand it they were worthy of quotation because they are a reputable firm and well recognized by the industry itself.

MR. BARRETT : Mr. Speaker, my supplementary was: how much did the government pay for this information?

HON. MRS. McCARTHY : The information I can obtain. If we paid anything we're quoting it. I'll certainly make that available to you.

SCOPE OF FERRIES INQUIRY

MR. NICOLSON : In connection with the ferry operation inquiry board, I have here the terms of reference. They seem to be silent on the matter of whether or not this is to include the freshwater ferries. Would the Minister of Highways and Public Works clear that up, please?

HON. A.V. FRASER (Minister of Highways and Public Works) : They do include freshwater ferries.

HOG GROWERS' PROBLEMS

MRS. B.B. WALLACE (Cowichan-Malahat) : My question is to the Minister of Agriculture. In view of the serious situation confronting the hog growers of British Columbia, is the minister prepared to attend the emergency meeting in Abbotsford tonight which has been called by the Hog Growers Association?

HON. J.J. HEWITT (Minister of Agriculture) : Mr. Speaker, I'm not aware on a meeting that has been called; it has not come to the attention of my office.

MRS. WALLACE : Supplementary. Is the minister prepared, then, in view of the fact that hog growers are being forced out of business by price cutting and shortage of processing facilities, to take action to ensure that B.C.'s two remaining hog processing plants remain operative for B.C. hog growers?

HON. MR. HEWITT : My ministry is well aware of the problems experienced by the hog producers. We are working with the hog producers and with the two processing plants. If there is a meeting on, Madam Member, I will certainly make sure that one of my staff attends. As you know, we'll be sitting tonight so I wouldn't be able to go but one of my staff members will certainly be there. If you would provide me with

[ Page 3976 ]

that information as to where it is, I'll check it out right away.

TRADE PRACTICES ACTION

RE D&V JANITORIAL ENTERPRISES

MR. LEVI : Can the Minister of Consumer and Corporate Affairs inform the House if the director of trade practices received the notification of an action that was taking place in the supreme court last October? The number is C-765158, which involves D&V Janitorial Enterprises Ltd. in Vancouver. There was an action commenced under the Trade Practices Act. The usual procedure is to serve a notice on the director of trade practices, as I understand it from the Act. Has he received that?

HON. MR. MAIR : I'll have to take that question as notice, Mr. Speaker.

Orders of the day.

HON. G.B. GARDOM (Attorney-General) : Mr. Speaker, with leave of the House I'd like to move to Motion 15, as indicated last week.

Leave granted.

HON. R, S. BAWLF (Minister of Recreation and Conservation) : On a point of order, I would like to make it a matter of record that I intend to withdraw from this chamber during the course of this debate.

MR. A.B. MACDONALD (Vancouver East) : On a point of order, as far as standing order 39 goes, it certainly goes to the point where the hon. minister who has just made this announcement and the other two members should withdraw from any participation in this debate. It may go further than that but it goes at least that far.

Interjection.

MR. MACDONALD : If they want to make a statement, they can. That's right.

AN HON. MEMBER : We really don't need your help, Alec.

HON. MR. GARDOM : Mr. Speaker, for the record, it has become apparent to at least these weak, old eyes that the three members in question have withdrawn from the assembly.

I would move, seconded by the hon. Minister of Labour (Hon. Mr. Williams) , Motion 15 standing on the order paper. In support of the motion I do wish to emphasize some points. Some of them are technical, Mr. Speaker, and I would certainly request the indulgence of your good self and the House to bear with me as I proceed with these remarks.

MR. SPEAKER : Just before you start, hon. Attorney-General, would the hon. Attorney-General provide the desk with a copy of the motion which is being moved at the present time?

HON. MR. GARDOM : I think the desk already has a copy but I'm delighted to provide them with another one.

MR. SPEAKER : Thank you. It is signed, hon. member. It's a matter that the Chair likes a copy of the motion so I may record those who participate in the debate.

HON. MR. GARDOM : If memory serves, it was filed on the day that leave was requested before. It is my last copy and if it wouldn't be too much disservice, it would be appreciated if we could have a page to make a photocopy because I would like to refer to it.

Thank you. It arrived very quickly.

Mr. Speaker, I have entertained indepth legal consultation and advice from senior officials in this ministry - officials who have been with the ministry for a number of years and through a number of administrations. I'm sure all members will know and agree that these officials have very faithfully, honourably and impartially served this Legislature.

Following consultation and consideration with the authorities, it is their considered opinion - and with which I must say I do agree - that the correct and the appropriate forum to consider the question of disqualification of members of this Legislative Assembly is this assembly itself. This has been established by parliamentary practice, parliamentary procedure and parliamentary custom. As well, it is very firmly entrenched by legal precedent from a number of court decisions.

The basic principle, Mr. Speaker, is that the right of a member to sit and to vote is one that must be decided by the House itself, and I refer you to some authorities. First of all, Halsbury's Laws of England, volume 24, second edition, at pages 354 and

Article 709 reads:

"In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons claims the exclusive right of providing" as it may deem fit, for its own proper constitution." Marginal note reads: "Formerly, the House used to claim as an exclusive right to decide all matters touching the election of its own members and used itself to be the judge in all controverted elections. But in 1868 it delegated its authority in these matters to

[ Page 3977 ]

the courts of law."

Article 710 in the Halsbury says:

"Although the House of Commons has resigned its right to be the judge in controverted elections, it retains its right to decide upon the qualification of any of its members to sit and to vote in parliament."

Sir Erskine May's book Parliamentary Practice, 16th edition, also firmly establishes this at pages 175 and 176:

"It is a privilege of the House of Commons to provide for its own proper constitution as established by law.

"This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in the cases of doubt.

"The right of the Commons to determine all matters touching the election of its own members has been regularly claimed and exercised since the reign of Queen Elizabeth" -and that's referring to Queen Elizabeth 1 -"and probably earlier, although such matters have been ordinarily determined in Chancery ....

In the 18th century, however, the Commons continued to exercise the sole right of determining whether electors had the right to vote, while inquiring into the conflicting claims of candidates for seats in parliament; until in 1868, the House delegated its judicature in controverted elections to the courts of law, while retaining its jurisdiction over cases not otherwise provided for by statute.

"Whenever a doubt arises as to the qualification of any of its members the House also has the right, which it has frequently exercised, to inquire into the matter and decide whether a new writ ought to be issued. It used to be the practice, particularly in the 18th century, for members who held or had accepted offices of profit under the Crown which might possibly involve the vacation of their seats to bring their cases before the House itself with a view to securing its decision. In such cases the House when seized of the matter either gave its decision forthwith after debate or referred the matter to a select committee."

And I would emphasize that, Mr. Speaker.

"At present the practice is to refer the matter in the first instance to a select committee without, as a rule, any previous debate in the House."

And this is the request and the direction today to proceed to that committee.

Now carrying on, Mr. Speaker, it seems abundantly clear that unless express parliamentary statutory enactment provides otherwise, the responsibility to determine disqualification of members to remain within parliament is that of parliament.

"The civil and criminal laws of England, as the same existed on the 19th day of November, 1858, and so far as the same are not from local circumstances inapplicable, are in force in all parts of the province. . . ."

The Legislative Assembly Privileges Act,

chapter 215,

section 2:

"The Legislative Assembly, and the committees and members thereof, shall hold and enjoy such privileges, immunities, and powers as, and the privileges, immunities, and powers of the said assembly, and of the committees and members thereof, are hereby defined to be the same as on the 14th day of February, 1871, were held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom, and by the committees and members thereof. . . ."

The next point that I wish to mention deals with sections 31 and 35 of our Constitution Act and the reference is to courts of competent jurisdiction.

Section 31:

"If any person so disqualified or declared incapable of sitting or voting in the Legislative Assembly sits or votes therein, he shall thereby forfeit the sum of $500 for each day on which he so sits or votes; and such sum may be recovered from him by any person who sues for the same in any court of competent jurisdiction."

And in

section 35, it deals with the situation of dual representation in the House of Commons and in this assembly. I'll read it as well:

"In case any person who, under the last two preceding sections, is made ineligible as a member of, or incapable of sitting or voting in, the Legislative Assembly, sits or votes therein while he is so ineligible or incapable, he shall

[ Page 3978 ]

thereby forfeit the sum of $2,000 for each day on which he sits or votes and such sum may be recovered from him by any person who sues for the same in any court of competent jurisdiction."

So you can see very clearly, Mr. Speaker, that this right is indeed a historic

right. I must confess I was unable to direct myself completely back to the days

of Elizabeth 1, but I have the statute of the sixth year of the reign of Anne

in 1707 and of George III in 1801. These were in the days when the 'Is"

used to read as 'If" and I shall read an excerpt from the statute of

George III in 1801, dealing with disqualification and the penalty situation.

I shall use , is" rather than 'If":

. . : and shall forfeit the sum of 500 pounds for every day in which he shall sit or vote in the said House to be recovered by such person as shall sue for same in any court of record in any part of the said United Kingdom by action of debt bill plain information where no essoin protection or wager of law shall be allowed and only one imparlance."

. and only one imparlance." I would like you to write that down.

In any event, you can see that this is a citizen's right; it is a citizen's remedy. It's not a government right or a government remedy; it is not a cabinet right or a cabinet remedy. It is an elector's right and it is an elector's remedy. The penalty in this situation, which used to be defined in the early days of the Anglo-Saxons as blood money, accrues not to the state but accrues to the individual citizen who can wage his claim in court.

So under these two sections it is for a court of competent jurisdiction to say if a penalty can be levied as the result of an action taken by a citizen. What the courts would or would not do if a citizen launches such a suit is up to the courts to decide and not up to this assembly to decide.

But all members of this Legislature, as members, have the right and the responsibility to follow the law that relates to this assembly. It is paramount and clear, Mr. Speaker, that the Legislature has the responsibility to consider disqualification, and every member of this assembly has the right to expect that the Legislature will exercise that responsibility and hear her or his case if an issue of disqualification arises, and then render an adjudication. The basic principle still remains that this House is the customary and the proper forum to deal with questions of the right of hon. members to sit.

It's interesting to note too that these aspects have even been codified in certain of our provinces. For example, in Manitoba, in 1976, when they brought in an amendment to their Act dealing with disqualification provisions, they codified in Manitoba the right of direction specifically to a committee. I'll read

section 19 (3) of their statute:

"Where a question arises as to whether subsection (1) or

(2) applies in respect to a member of the assembly, the member, or any other

member of the assembly, may refer the questions to the Standing Committee of

the Assembly on Privileges and Elections, which shall determine the question.

The determination of the committee is final and binding on all persons."

So essentially what they have done within the province of Manitoba, Mr. Speaker, is to go ahead and to codify the provision.

Now, Mr. Speaker, it is true that the problem of

interpretation is a difficult one, and it's also most true indeed that the Constitution Act that we have in British Columbia is one that is archaic in origin. As I' have earlier indicated, it emanates from earlier than the days of Elizabeth I and now we're in the reign of Elizabeth 11. It's also most apparent that it was designed to essentially be....

MR. SPEAKER : Hon. Attorney-General, may I just interrupt you for a short burst?

It is very apparent to the Chair that there is a continual rumble going throughout the chamber this afternoon, which is certainly not in keeping with the spirit of debate which is taking place. I think it would do all of the members well to listen to the remarks which are presently being delivered to the House by the hon. Attorney-General and refrain from carrying on conversations on the side.

MR. G.R. LEA (Prince Rupert) : Yes, it's really interesting.

HON. MR. GARDOM : Well, I would hope that it would be interesting to you, Mr. Member. I would hope so.

It's apparent, Mr. Speaker, that the Act was designed as a conflict-of-interest Act. It's vague, it lacks precision and I would certainly say that something better is needed in 1977. The situations that have developed over the past few months and the past few years as a result of later revelations makes that fact even more abundantly clear.

But it's the law that we're now saddled with. I think rather than harrying questions that rely upon antiquities, it would have been somewhat more appropriate of the opposition to be recommending amendments. But the law is here, and until such time as it's altered, it's got to be followed, notwithstanding the vagueries and the inconsistencies and its archaic nature.

But there are grave questions to be settled, according to the hon. first member for Vancouver East (Mr. Macdonald) . He said this:

Now it seems to me, Mr. Chairman, that. it's an

[ Page 3979 ]

agreement if I go up to stay at the Inn of the North in Prince George under an arrangement that somebody will pay for my hotel and breakfast. That is an agreement made with Her Majesty, under which public money is to be expended. Whether or not I have that dinner that night, I would say that if I had that kind of agreement with Her Majesty, I would have forfeited my seat in the Legislative Assembly.

He carries on, and that's why we're here at the present time:

There is a grave question, Mr. Chairman, as to whether or not these members have not forfeited their right to sit and vote in this Legislative Assembly.

Then the Leader of the Opposition (Mr. Barrett) , speaking to the hon. Minister of Housing (Hon. Mr. Curtis) , said:

You're embarrassed. You've been caught with your hand in the cookie jar. You sanctimonious, through you, Mr. Chairman, member of the cabinet who used to be in the opposition, who screamed about spending public money, you have been caught authorizing public money with no authority.

There were similar accusatory statements from the member for Alberni (Mr. Skelly) , the second member for Victoria (Mr. Barber) and other members of the opposition.

The member for Vancouver East (Mr. Macdonald) said:

The minister's expression of regret is commendable, but cannot

reinstate in good standing members who have been in breach of the Constitution

Act. Neither can repayment to the government of expenses illegally made when

the matter is finally brought to light erase disqualifications which have existed

since the fall of 1976. Mr. Speaker, it well appears that three members of this

assembly are ineligible to sit and vote on its proceedings, namely the Hon.

Sam Bawlf, the Hon. James Hewitt and Mr. George Kerster.

But then we next heard from the hon. member for Prince Rupert (Mr. Lea):

Mr. Chairman, I think this is really a matter that could be straightened

out fairly easily. I don't think anybody wants those three members who sat

on that committee to pay $500 fines or give up their seats or be forced to resign.

I think all this side of the House wants is the information, the records of

Hansard, the complete lists and papers of the submissions.

The government was very new. There was a minister who was very new. I don't imagine that every minister has read every clause of every Act. I think the minister should just table the material that we're asking for, and also probably the money that was paid to those members of the Legislature who acted in that committee could be paid back to the taxpayers.

As far as getting into fines and resigning seats, I think that's carrying it a bit too far, unless the minister fails to co-operate. If he fails to co-operate, then it would indicate to me that he acted with foreknowledge and knew full well what he was doing, and his government knew full well what they were doing, and that's an entirely different matter. To act in innocence, I think people should make retribution in a reasonable way, in an acceptable way, and I don't think this side of the House would be unreasonable in allowing the government to do that sort of thing, or agreeing with the government that's the way it should go.

He said, later on: "Nobody's asking for blood."

Well, then he was also followed, once again, by the first member for Vancouver East (Mr. Macdonald) , who said:

The minister's expression of regret is commendable but cannot

reinstate in good standing members who have been in breach of the Constitution

Act. Neither can repayment to the government of expenses illegally made, when

the matter is finally brought to light, erase disqualifications which have existed

since the fall of 1976.

So there does seem to be some degree of inconsistency of attitude from members of the official opposition in their manner of addressing this problem. Via similar statutes and authorities, legal and parliamentary, Mr. Speaker, one thread appears with golden consistency. That is what I have mentioned. The basic principle is that parliament has all of its powers, save those which it has abdicated, and it has not abdicated the power to determine disqualification of its members. That rests here, needed or not, unpleasant or not, and vexatious or not.

It's the job of this House to determine whether or not there is a disqualification or the declaration of a vacancy is in order. Now as I've said, Mr. Speaker, dealing with the supremacy of parliament, this is the view not only of the parliamentary authorities that I have referred to, but also of the courts themselves. I refer you to the case of Theberge v. Laudry in 1876, which was the decision of the highest court in the land, the Privy Council of the United Kingdom. It says, at page 106 of this quotation:

"Their lordships wish to state distinctly that they do not desire to imply any doubt whatsoever as to the general principle that the prerogative of the Crown cannot be taken away except by express words."

Interjection.

HON. MR. GARDOM : Well, it's not taken away there either, sir. On page 107:

"Now the subject matter, as has been said of the legislation, is extremely peculiar. It concerns the rights and privileges of the electors and of the legislative assembly to which they elect members. Those rights and privileges have always, in every colony, followed the example of the mother country and have been jealously

[ Page 3980 ]

maintained and guarded by the legislative assembly. Above all,

they have been looked upon as rights and privileges which pertain to the legislative

assembly in complete independence of the Crown so far as they properly exist.

It would be a result somewhat surprising, and hardly in consonance with the

general scheme of the legislation if, with regard to rights and privileges of

this kind, it were to be found that in the last resort the determination of

them no longer belonged to the legislative assembly."

I'd also refer you, Mr. Speaker, to the Ontario Court of Appeal case of Tolfree v. Clark in 1943, which considered the case of Theberge v. Laudry, which I have referred to. At pages 697 and 698, we have the decision of Mr. Justice Laidlaw:

"It was contended that there was no jurisdiction in any court to inquire into the right of a person to sit in the legislative assembly; that a limited right only was given to a court in matters of controverted elections. (See the Controverted Elections Act.)

"It was also urged that the right of a person to sit in parliament was a matter exclusively within the jurisdiction of parliament and was a privilege of parliament. The power of determining matters touching the election of its members is peculiar to the Commons. This right had been regularly claimed and exercised since the reign of Queen Elizabeth, and probably in. earlier times, although such matters had been ordinarily determined by chancery.

"This power exists, in my opinion, in the' Legislative Assembly of this province, although it 1 is not expressly conferred by statute. It is inherent and it must be presumed that it was the intention that such jurisdiction should be given at the time of the constitution of the Legislature when created by imperial parliament. It could not be supposed that the parliament of this province should possess less privileges and rights of this kind than enjoyed by the Mother of Parliament through whom it came into being, "

which I stated in the earlier part of my remarks.

"Where jurisdiction is not expressly conferred, it is not intended that this court should exercise any of the rights or powers of the high! court of parliament in any proceedings under the Acts respecting the representation of the people in parliament. The Legislature has surrounded part of its jurisdiction by Acts related to controverted elections" - that's just the thing that happened in this province under our elections Act - "but those Acts must be construed strictly and literally. They do not take away from the Legislative Assembly all power to deal with matters pertaining to election of its members."

1 would also like to refer to the case of Stubbs v. Steinkopf. This was a decision of the Supreme Court of Manitoba in 1964. In the report I would like to quote some of the principles stated by Mr. Justice Bastin.

"It has been clearly established as early as the reign of the first Queen Elizabeth that the qualification of members of parliament must be decided by the House of Commons itself. It would be great presumption in this court to meddle with elections to parliament before the matter hath been determined in parliament. The judges in all times have been very tender of meddling with matters relating to parliament. I do not find ever they tried elections but where statutes give them express power. . . .

This constitutional principle which was established in the Mother of Parliaments applies equally to the House of Commons at Ottawa and to the provincial legislatures. Insofar as it has not been expressly delegated to the courts by legislation, the power remains in the Legislature."

Then he was very critical in that particular case of people making an approach to the court.

"The language of the various statutes is so clear and the principle of law I have referred to is so well known I find it difficult to understand how the experienced counsel who launched the proceeding or the relator himself, who is a barrister of many years' standing, were unaware that this application sought relief which the court had no power to give, and was therefore ineffectual. The effect was to make the court a sounding board for publicity."

Then he disposed of it on a matter of costs.

Now we also have our own decision in British Columbia of our own B.C. Court of Appeal, in the 1962 case of Chamberlist v. Collins. Mr. Justice Bird, in agreeing with the judgment of Mr. Justice Sheppard, says: "I agree that the learned judge has properly concluded that the territorial courts have not jurisdiction in this matter for the reasons assigned by my brother Sheppard." His colleague, Mr. Justice Sheppard, says this: "Here the question is whether the counsel had the power to decide the eligibility of the plaintiff to sit as a member, and the courts of various provinces have uniformly held that the power so to decide is within the power of the provincial Legislature."

AN HON. MEMBER : It's obiter dictum.

HON. MR. GARDOM : It's not obiter dictum, my friend.

"The issue on the defendant's motion is the jurisdiction of the territorial court, and the learned judge has properly concluded that this matter is beyond the jurisdiction of the court and the appeal should be dismissed."

[ Page 3981 ]

1 would like also, in support of the motion, to make short reference to some of the facts - very short, because the House has heard them - referred to by the Minister of Housing (Hon. Mr. Curtis) when he filed with the House a memorandum from his deputy minister to the assistant deputy minister advising that the deputy had been instructed by the minister to ensure that no expenses directly relating to the MLAs in question were to be passed on for payment. The minister said that the memorandum in question had not been acted upon and, in his opinion, the statute had not been transgressed.

The opposition has clearly stated - the members of the opposition who have spoken - that the statute has been transgressed and that they wished action. Appropriate and correct action is that which is being proposed this afternoon, Mr. Speaker, by this motion.

I would reiterate that the rights and the duties of the three members in question have to be very carefully considered and respected, just the same as the rights of any other individual members in here. Those members stand, as do all members of this assembly, in their own right and not at the discretion of this or any government., They have been duly elected. They have a responsibility to represent their constituents. They have a right to a hearing, as is proposed by this motion and as is laid down by parliamentary and legal precedent. Any other departure from this, Mr. Speaker, would be an incorrect departure.

There is a responsibility to see that the hearing is proceeded with as soon as possible. That is in the interests of parliament, in the interests of the members in question & in the interests of the electors.

I would draw to you here, Mr. Speaker, another distinction, and that's this. Dealing with the public complainant or public informer sections that I have referred to - I have referred to two of them here, but there could only be one that could be considered applicable, obviously - there is not any duty on the public party to initiate a suit. That's optional.

There's no duty on a common informer to initiate a suit, but if that was the correct forum and the only forum, which the authorities clearly say it is not, then if a public complainant - that is, a member of the general public - chose never to bring an action, a cloud such as had developed here would be left lingering in doubt over the heads of the members, the heads of this Legislature and the heads of the electors of the members in question. Hence I would say, Mr.

Speaker, that it is even more obvious that parliament, by authority, practice and custom, has the duty to respond, to act, to hear and to determine and as quickly, indeed, as possible.

Now there must also be a committee formed. That is stated by George Bourinot in his Parliamentary Practices text of 1916. Reading from page 161:

any question is raised affecting the seat of a member and involving matters

of doubt, either in law or fact, it is customary to refer it to the consideration

of a committee.

"Then there are some examples: Mr. Perry, referred to on the previous page, Mr. J.S. MacDonald and Mr. C. Duncan, whose seats were questioned on account of their holding offices on the executive councils of Ontario and Quebec; Mr. Cutler, who had been paymaster of a government railway at the time of his re-election; Mr. Delorme, who was charged with complicity in the Red River Rebellion; Mr. Anglin and others in 1877, alleged to have violated the Independence of Parliament Act. In the case of Mr.

Daoust in 1877 the matter was referred to the committee on privileges and elections, which reported in his favour, but in 1880 the House :refused to refer a petition making charges against Mr. Hooper to the same committee. In 1890 the conduct of Mr. Rykert in connection with certain timber limits was referred to the committee on privileges. In other cases where there's evidence of crime or the person accused being a fugitive from justice, it has been considered sufficient to lay the papers formally before the House.

But whenever the seat or character of a member is affected, the House will invariably proceed with deliberation. A reference to a committee is no doubt the proper procedure in all cases in which there are reasonable doubts as to the facts or the course that should be pursued, especially when it is necessary to examine precedents or witnesses."

So, Mr. Speaker, I would move Motion 15, seconded by my colleague, the Minister of Labour (Hon. Mr. Williams) , that this House instruct the committee of selection which was appointed on January 13,1977, to name a special committee to decide whether or not the hon. first member for Victoria (Hon. Mr. Bawlf) or the hon. member for Boundary-Similkameen (Hon. Mr. Hewitt) or the hon. member for Coquitlam (Mr.

Kerster) has sat or voted in the Legislative Assembly when he was disqualified from so doing, in consequence of his participation in the UBCM provincial housing study, instituted by the Minister of Municipal Affairs and Housing, and to which the recent reference has been made in the Legislative Assembly, and to report its findings to this House, and that the special committee be authorized to commence sitting forthwith, and to sit during the sittings of the Legislative Assembly is adjourned, and to request, if it deems necessary during its hearings, the opinion of a judge of the Supreme Court of British Columbia on any question of law, and be authorized and required to allow representations of any person by counsel and examination and cross-examination of witnesses.

I so move, Mr. Speaker.

[ Page 3982 ]

MR. GIBSON : On a point of order, Mr. Speaker, the Attorney-General has just given us about half an hour of legal and parliamentary precedent. I wonder if he would agree to an adjournment of this debate while members could study it.

HON. MR. GARDOM : It's not a question of me agreeing to- an adjournment, Mr. Member; it's a question of the government agreeing to an adjournment. I would draw to the hon. member's attention that leave was requested last Friday, and that leave was denied by members of the official opposition. There has been a whole week in which to consider this. You, sir, among other people, have been requesting that the House proceed with all dispatch. I think it most appropriate that we continue the debate at this time.

We have three members here who some members of the opposition have clearly indicated and stated are disqualified and have forfeited their seats and should not be sitting. I think in all fairness to those hon. members that the House should proceed with the debate at this time. I do feel, with the greatest respect to you, sir, that you and all members of the House have had adequate time to consider the matter - being seven days.

MR. MACDONALD : Mr. Speaker, insofar as I can I'd like to assure the Liberal leader that we've really heard nothing new today. I suggest there's nothing new except the case of Stubbs in Manitoba in 1964, which is not a case dealing with our Constitution Act or anything similar to it.

Mr. Speaker, on this kind of motion I don't think we should canvass the particular facts or the merits of the dispute. The question is whether it should be referred in this manner to a special committee of this House. I would just like to say, as to the facts leading up to three members not being present in the House this afternoon, that it was a mistake on the part of the government to have a so-called committee with only back-bench Social Credit members.

It was a mistake - and we would not have this reference by the Attorney-General suggested to a committee at all today - that they should receive expenses which are not given to other members of this Legislature when they go on public business to say the city of Vernon, if you're an opposition member, to have an open caucus. Your expense allowance covers that or your private caucus funds cover that; you don't have something additional.

While I do not intend to discuss the case further than that, Mr. Speaker, I would like to say a word about the hon. Minister of Recreation and Conservation (Hon. Mr. Bawlf) , who I think has been protesting too much. He has been blustering a little bit and threatening to sue this or that journal. I can't conceive that a businessman of his ability would not know that when he went on this committee he was receiving expenses over and above the $8,000 which are allowed to the other member of the Legislature.

The fact that his hotel bill was paid directly by the government - not out of his own pocket - should not blind him to the fact that his expenses were paid on this trip. I just gently chide the hon. minister in that respect and suggest that it's kind of silly on his part to make threats about suing a newspaper or suing some other person or persons unknown because they have raised the very important constitutional question which is now before us.

Now, Mr. Speaker, I have to say frankly that the Attorney-General, by moving to refer this question to a special committee, is not upholding the law and constitution of this province. I know that's a strong statement but I have no alternative but to make that after considering the authorities. Instead of a referral to the courts, the Attorney-General proposes to refer to a committee where the government will have a majority and where the verdict will not be in doubt. And that's the important question we're discussing this afternoon, Mr. Speaker, because it was precisely to forestall this tyranny of the majority that our Constitution Act provided

section 31. 1 intend to read it although the Attorney-General read it just a moment ago.

"If any person so disqualified or declared incapable of

sitting or voting in the Legislative Assembly sits or votes therein, he shall

thereby forfeit the sum of $500 for each day on which he so sits or votes, and

such sum may be recovered from him by any person who sues for the same in any

court of competent jurisdiction."

Now there's the reference by the Legislature of this kind of question to

courts. Laymen as well as lawyers would readily see that this is a matter for

the court and not for a political majority in a legislature.

The Attorney-General is right in saying that these are very ancient rights. They derive, as far as my research goes, from about 1660 in the restoration period when corruption was rife. The giving of offices for profit or special emoluments to members of the British House of Commons was very common. And the House of Commons, to protect themselves against members being picked out for special treatment over and above that accorded other members, passed the first of these laws, which are now embedded in the Constitution Act of the province of British Columbia.

At that time the Crown practised what were then called the arts of management, meaning that they would bestow favours where they felt favours were going to be done back to the government. It is that kind of a principle which the House of Commons prohibited and which we are now discussing today,

Now the Attorney-General has said there is no precedent. And he's quoted a lot of references which I am going to give brief attention to because I don't think they're relevant. But there are precedents, Mr.

[ Page 3983 ]

Speaker, with all respect. There are precedents based directly upon our language and legislation exactly similar to our Constitution Act. I will have to read the headnote of this case because it's important. In the case of Bird vs. Samuel, 1913, 29, Times Law Reports, at page 343, the headnote reads:

"A member of the House of Commons was partner in a firm which made a contract with the Secretary of State for India in council for purchasing silver for the Indian currency. A common informer" - and I interrupt to say that that's exactly what we have, a plain tiff-informer action in this province -"brought an action against the member for penalties, and alleged in the statement of claim that the defendant was elected to parliament on January 10, 19 10, and that he voted on various dates in 1912.

In fact, parliament was dissolved in January, 1910, and was again dissolved in December, 19 10, and the defendant was elected at a general election in December, 19 10. Held: that the defendant had entered into a contract for or on account of the public service within

section I , of the House of Commons Disqualification Act of 1782; that the plaintiff was entitled to an amendment of the date alleged in the statement of claim as the date of the defendant's election; and that therefore the plaintiff was entitled to recover the penalties sued for."

The same reasoning and application was made in the case of Forbes vs. Samuel, the same gentleman, at the same time - a decision of the very respected Mr. Justice Scrutton in the Forbes case, and the other a decision of Mr. Justice Rowlat in the Bird case.

Now here, Mr. Speaker, is a plain precedent, stating without any doubt of equivocation that this is a matter for the courts and not for the politicians. In the Bird case, Mr. Justice Rowlat said, at page 326 -and this gives the basic reasoning behind what we're suggesting is the correct situation today:

"The legislature had thought fit to appeal to the cupidity of individuals as a means of preventing ills which the action of the authorities could not be depended upon to prevent."

And that's precisely where we are now. The government majority that authorized the committee now seeks to absolve breaches of the Constitution Act, using the same majority. This is precisely the abuse the Attorney-General seeks to absolve in committee.

The government in its majority appoints Social Credit members to receive expenses in an assignment over and above their regular expense allowance, and the government now seeks to refer this question to a political court with a government majority. This is precisely what

section 31 prevents.

In the course of his remarks, the Attorney-General this afternoon, when I think his remarks were practically the same as made more than a week ago, said that parliament has control of these things unless there is an express parliamentary enactment to the contrary. We have an express parliamentary enactment to the contrary. It is

section 31.

He said that we are following the tradition of the Mother of Parliaments, the British Parliament, in the course that the Attorney-General proposes to take, and yet the law of the Mother of Parliaments - and I agree, as he says, that we inherited that law and those practices as of 1871 in this province - is that laid down in those cases I cited: Bird and Samuel and Forbes and Samuel. The fact that the political court, which would be a committee of this Legislature, may by decision of majority refer some, or no, questions of law to the courts under the motion that the Attorney-General had read out compounds the offence.

If a court should adjudicate upon the facts and law, as it did in the Bird and Samuel case, and as it should, would it not refuse to decide upon such parts of the case as the committee, made up of politicians, graciously decides to refer to the court? I would think a court would refuse and say, "it's our case" and not, under the second branch of the Attorney-General's motion, say, "Oh, we will give you an opinion on this aspect and then a little opinion on that aspect." I think a court would refuse to do that because they're entitled to decide the whole case.

The Attorney-General said in his statement - and that's the statement of the other day, but repeated today - that:

". . . after careful review of the parliamentary and legislative authorities, and specifically that which has been well established, both by decisions of the court and by longstanding parliamentary practice, on questions of qualifications of hon. members to sit or vote in parliament, that these are matters not for the court, but for parliament."

Well, Mr. Speaker, that statement is simply not true. The whole range of controverted election cases go to court, which involve the qualification of members to sit in parliament. They go to court under the statute. I'm just saying that the broad statement the Attorney-General made is simply not so. The courts have definite jurisdiction in certain fields under statutes similar to our Constitution Act, and that broad, sweeping statement simply cannot stand.

None of the Attorney-General's precedents deal with a

section 31 case. None of them deal with the so-called "plaintiff informer cases" under sections similar to our

section 31, such as Bird v. Samuel and Forbes v. Samuel. Reference is made by him to the Legislative Assembly Privileges Act, but that simply

[ Page 3984 ]

confirms in the province, as I have said, the British law. That law is that the courts are the protection against this kind of abuse. Reference is made in general terms to controverted election cases reserved for the courts, to qualifications of members reserved to parliament except where delegated to the courts, as they are delegated in

section 31 of our Constitution Act.

The Attorney-General quoted, and quotes again today, Halsbury's Laws of England, second edition. I wonder why he didn't quote the third edition. There is a third edition, Mr. Speaker. It's a little more up to date and has had a little greater research, perhaps, bestowed upon it. But even in the second edition, he neglected to quote the relevant paragraph, which is now found in the third edition, as I read it, page 563.

This is the point because, without quoting those general paragraphs that have nothing to do with a plaintiff-informer situation, the Attorney-General might have quoted this: "Determination of questions by actions for penalties." This is in the third edition of Halsbury at page 563 of volume 24. It's precisely the point we're under today - determination of questions by actions for penalties. Halsbury says:

"Numerous Acts formerly" - because Britain changed it in 1957, but we didn't -"afforded an opportunity for courts of law to determine a question of disqualification as a result of actions brought to recover statutory penalties from members of parliament for sitting or voting while disqualified. With the two following exceptions, all such actions have now been abolished as a result of the repeal of the relevant statutory provisions by the House of Commons Disqualification Act, 1956.

A penalty of 500 pounds for every day in which a person sits or votes while disqualified by the House of Commons, Clergy Disqualification Act, 1801" - which we're not concerned with - "may still be recovered in the high court in Britain at the suit of any person suing for the same."

While Britain changed its law in this respect in 1957, the Attorney-General of the province of B.C. is bound by the laws and the Constitution Act of the province of British Columbia. I might say that Alberta has a similar

section to ours - the plain tiff-in form e r

section - and Ontario has a

section similar to ours. It is idle, Mr. Speaker, to say that Manitoba has since changed its statutory law and now allows parliament to make this kind of a determination. We are dealing with the law and the constitution of the province of British Columbia. That is the law that the Attorney-General, of all people, should be upholding,

There were other cases cited, like Theberge vs. Laudry. I wonder why it was cited, Mr. Speaker. It's a case involving controverted elections in Quebec and the narrow point was whether or not the person whose election had been found to be null and void could appeal from the Quebec lower superior court to the Quebec court of appeal. Really, that is simply a case that is not relevant to what is before us at the present time. And my friend the Attorney-General quotes Chamberlist vs. Collins, and I think Mr. Chamberlist ran against me after, losing this case in Vancouver East - quite a few people have. I am always nervous when I think about these things.

But, again, Mr. Speaker, why was that case quoted? That was a decision under the Yukon Act and as set out in the law reports, that Act, in

section 14 (3) , says plainly that: "The Yukon council shall prescribe the reasons for or matters by which an elected member may be or become disqualified from sitting as a council member." So that's a decision under the Yukon Act and clearly correct and no

section 31 is involved. None of that situation is involved.

In the Chamberlist, case Justice Littledale is quoted on the privileges of parliament:

"The Attorney-General admits that they, the Commons, are

not entitled to create new privileges. But they declare this to be their privilege.

But how are we the courts to know that this is part of their privileges without

inquiring into it when no such privilege was ever declared before? We must therefore

be enabled to determine whether it be part of their privileges or not."

That, Mr. Speaker, is the court jurisdiction which is being denied.

The Attorney-General says that what

section 31 confers is a citizen's right and a citizen's remedy, and that is what this motion proposes to take away today, by referring it to a committee and absolving the three members, whether their offence be large or small. It's taking away that citizen's right and that citizen's remedy and usurping the plain jurisdiction of the courts.

As chief law officer of the Crown, who should be above politics - who must be above politics - the Attorney-General himself should initiate the necessary proceedings in the courts of law. This question must be determined, Mr. Speaker, by a court of law, not by a court of politicians. As I said, we are not dealing with whether it's a large offence or a small offence, whether it was in good faith or in bad faith. What we are concerned about in this House is that the proper procedure be followed under our law and constitution; this motion proposes to go the other way and does not uphold the Constitution Act and the laws of the province of British Columbia.

MR. GIBSON : Mr. Speaker, while listening to the Attorney-General's arguments this afternoon, it did strike me that if he had any confidence in them he

[ Page 3985 ]

would have given the opposition, perhaps, the recess of an hour or so to examine them and see if they contained any merit. What we saw on the afternoon of July 15 contained no merit once we had a chance to examine it in a little more detail, and I'll get on to that later. But, first of all, to what the Attorney-General said today - he claimed for the Legislature an exclusive right to the determination of the constitution of the Legislature. He kept slipping in that word "exclusive ' " yet in other parts of his argument admitted that it was otherwise if governed by statute.

The right of the Legislature to determine its constitution is undoubted, but it is not exclusive where statutes are otherwise provided. Look at

section 23 of the Constitution Act, and I'll read it for

"No person accepting or holding in the province any office, commission or employment permanent or temporary to which an annual salary or any fee, allowance or emolument or profit of any kind or amount whatever from the provinces attaches, is eligible as a member of the Legislative Assembly, nor shall he sit or vote as such; but nothing in this subsection makes any person ineligible as a member or disqualifies him to sit and vote as such by reason of his accepting or holding office as a member of the executive council."

And so on. Further on it's not applicable.

That

section 23 is very clear, Mr. Speaker. Where does the Attorney-General think that those words are found? In Mother Goose stories? They are found in the statutes of this province. They apply specifically to the case where a member of the Legislative Assembly is, as described, in contravention of the Constitution Act.

Commenting next on the words of the Attorney-General - he spoke of his reasons as being the opinions of officials. I would like the Attorney-General, as long as he is going to quote his officials, to table those opinions of officials. I would like him to tell us, with greater particularity, whether there was unanimity between legal counsel for his own ministry and the counsel for the Ministry of Municipal Affairs on this particular question. Would you table those opinions, MR. Attorney-General? You are certainly citing them?

Interjection.

MR. GIBSON : You bet there was a disagreement.

MR. C. BARBER (Victoria) : Will you table the memos?

MR. GIBSON : Next, the Attorney-General suggested that we should let a parliamentary committee settle this matter. Can you imagine the suspense, Mr. Speaker, of a parliamentary committee considering this? In that respect, that would have all the suspense of the Idi Amin cabinet meeting. (Laughter.) There would be no doubt of the outcome whatsoever. Mr. Speaker, the decision would be made as follows. I have a cartoon on the wall of my office. I am a fan of Hagar, which is a cartoon in The Province.

Hagar leads a band of warriors and one day he is saying to his warriors: "You guys voted me an extra share." And the warriors look indignant and said: "Who did? When was the vote? We never heard of any election." And Hagar looks them right in the eye and said: "Naturally. It was a secret ballot." (Laughter.) That's the decision-making style that this government likes; they like to control things.

Mr. Speaker, we've heard a lot of fine law from the Attorney-General today but you don't need to go to law school to know when you're being asked to get into a game with a stacked deck. The more one studies the statement of the Attorney-General on July 15, the more one wonders at the gall of the government in trying to force this resolution through at once by asking unanimous leave for immediate procedure. The opposition, very properly, asked for the weekend to study it, and over the weekend we found out why. The law in question is not clear at all, even in terms of the Attorney-General's own statement.

For example, the Attorney-General cites May, pages 175-176. I'll just try and find which edition of May for those who are interested in it - it might be found in the Attorney-General's remarks. But I checked the three examples that May mentions there and all three are provided for in some way or another by statute.

Next, he makes a reference to Ottawa and speaks of Bourinot. He says:

any question is raised affecting the seat of a member and involving matters

of doubt either in law or in fact, it is customary to refer it to the consideration

of the committee."

Well, that is very interesting, Mr. Speaker, but the fact of the matter is

that relates to the Canadian House of Commons and the British House of Commons

and they do not have our kind of Constitution Act with that particular

section

He goes on in his dissertation to admit that private parties may claim penalties and then he cites this Theberge case, which to me is not relevant at all. The basic fact of this Theberge case and the principle against which the court properly came was whether such a matter as the right of a member to sit could be appealed to the Crown. It would be improper, I agree with the court to have the Crown sitting in judgment on those kinds of things. But that was all that case was about. It was another red herring.

The quotes on the Chamberlist vs. Collins case, as

[ Page 3986 ]

the first member for Vancouver East (Mr. Macdonald)

said, related strictly to Yukon law, and the passing opinion of the learned

justices who discussed the procedures in the province were no more than that

- simply a passing opinion. And for the Attorney-General to cite it in this

debate I find astonishing. It's nonsensical law and if that's the advice

the Attorney-General is giving the government, I think he should resign as Attorney-General.

But let's be charitable, Mr. Speaker. Let's say that that's not

the kind of legal law he's giving the government; this is political law

and it's a political court into which he's proposing this particular

case should be thrown.

What are the facts, Mr. Speaker, as I see them?

First of all, the government is right in this sense. The House has the right

to set up a committee to investigate anything it wishes. There's no question

about that. But secondly, that in no way - and must in no way - rules out the

proper remedies at law. The government has two ways that it could and should

go in to the courts. One is to proceed under the Constitution Act under

section

31, as my friend from Vancouver East has suggested. And the Attorney-General

is a citizen of this province, as any other. He suggests that this is something

that is up to a citizen to do and then he raised before us the spectre of what

would happen if no citizen brought such a case. Would these members in this

Legislature be left with a cloud over their heads? He can amply remedy that

situation should it exist by bringing a case himself as a citizen.

But if he doesn't propose to proceed in that way, there's another way that he can go. He can make use of the Constitutional Questions Determination Act, which I'm sure the Attorney-General is aware of and which cites in

section 3:

"The Lieutenant-Governor-in-Council may refer to the court of appeal or to a judge for hearing and consideration any matter that he thinks fit to refer and the court of appeal or judge shall thereupon hear and consider the same."

MR. BARBER : But they don't know the verdict.

MR. GIBSON : That's right, Mr. Member; they don't know the verdict in advance if they go that route because it's not a political court. The court of appeal is not a political court; it's one the A~G doesn't control. He'll control any committee that's appointed by this Legislature but why doesn't he use this Constitutional Questions Determination Act? The power is within his hands.

MR. LEA : Because he's a scaredy-cat!

MR. GIBSON : Let him say to the court or to a judge of that court: "I would like you, in terms of the statute, to hear and consider the question as to whether these members are in breach of the Constitution Act." Cite whatever sections you like but especially

section 23. Why does he not go that route? He has an opportunity to use the courts and he's avoiding it. Why? Why a committee, Mr. Speaker? It's not a question of facts. We know what the facts are. The expenses of these members were paid. The Minister of Municipal Affairs and Housing tabled in this chamber documents which demonstrate that, and the minister admitted it himself. Indeed, it did take a bit of persuasion, Mr. Member, but in any event the facts are clear. The expenses were paid. So why go to a committee to find that out? No, that's not the reason for the committee - not to discover the fact.

The reason for the committee is to use the government majority to exculpate these three members - nothing more nor less.

The government may protest that they wouldn't do that kind of thing. These are the people, Mr. Speaker, that attempted to emasculate the public accounts committee. They moved to destroy the record of that committee. Talk about the rights of parliament coming from this government - it makes me a little bit ill. They tried to cut down opposition staff at the beginning of this parliament. They appointed an agriculture committee with somewhat imbalanced membership. And next we have the subject matter of this motion, which is the so-called housing committee. It's one of the greatest subversions of parliament in the history of this Legislature, as far as I know, Mr. Speaker.

If the government has the ability to appoint back-bench members to any delightful assignment that it might wish, avoiding the normal committee process, avoiding input from the opposition members of this House, then not only is this House circumvented but we have a vehicle for the government to even more rigidly control the conduct of every one of its backbenchers. If this principle is allowed to stand, what is to prevent the government from sending a recalcitrant backbencher to Miami for three weeks to study zoning in mid-December? What is to stop this government from sending an eager backbencher to Innsbruck to study skiing in February?

Mr. Speaker, I won't proceed with examples because the danger is obvious. If the government is allowed to circumvent committees in this way and to give special favours to its own backbenchers in this way, then there exists the possibility of even more rigid control over the actions of government members than has been traditional in this House.

Look at this motion, Mr. Speaker. It asks for a new committee. It asks for the committee of selection to appoint a special committee on privilege. The committee of selection has already appointed a committee on housing and municipal affairs; it was

[ Page 3987 ]

done at the beginning of the Legislature. Its terms of reference are exactly the sort of thing that could have and should have been used to study the work of the Bawlf committee. It met once for five minutes that night, which is all too typical as to how the committees in this House are used. Had the government made the proper use of its committees, they wouldn't be in this box today; they wouldn't have the embarrassment that's before this House of three members being in this kind of trouble.

MR. LEA : They're not embarrassed.

MR. GIBSON : Well, if they're not embarrassed, they should be. They are trying to justify this kind of deck-stacking of this privilege committee by relying upon a theory that's been corrupted by successive governments in British Columbia, and that is the theory of the supremacy of the Legislature.

Mr. Speaker, would it were that the Legislature is supreme, but we know - one and all sitting in this chamber - that the government is supreme, as long as they control their backbenchers. So, British Columbians, don't ask the Legislature to save you, as long as the government retains the kind of control it does over its backbenchers and obtains even more through the kind of move of this housing committee. We haven't the power. We have the power to talk, that's all.

Mr. Speaker, the Attorney-General has a duty, and it's a very clear duty. Terry Spence had a good editorial over CFAX the other day on this particular subject. "The common-sense approach of the average citizen, " I think is the way he sums it up.

"If the Attorney-General's department thinks no law was broken, it should say so and challenge anyone who thinks there was an offence to take it before the courts. If the A-G thinks there was an offence, he should prosecute. We don't want or need law enforcement by committee in B.C., particularly when the committee is appointed by the friends of the accused."

Mr. Speaker, you may think that I am speaking in this fashion simply because from time to time I oppose this government and that I don't feel strongly about what I say. I do. I want to say something which I hope will demonstrate it to the House.

If this resolution passes, if the committee sits, if it brings in a resolution that these members be disqualified and if the Legislature acts on it, I will admit I was wrong. I will resign my seat. I will devote my time to making tables and growing cucumbers and other things of that ilk. But, Mr. Speaker, I really do not expect to have to learn anything more about cucumbers.

MR. WALLACE : That last statement by the Liberal leader opens up the

possibility that both minority parties might disappear from this House. I am

surprised that the overwhelming power of this government majority doesn't

applaud that proposal.

Mr. Speaker, this is a serious issue and I will try to avoid repeating the arguments already presented because I do approach this in a slightly different way from our legal friends. In the first instance, I am very puzzled about some of the inherent elements on the issue that have already been tabled in the House with regard to the memos. A very simple question that goes through my mind is that if the government feels there is any wrongdoing, it would have seemed at least reasonable that the members concerned by this time would have repaid the money they had received illegally, at least until the matter was cleared up.

Apart from the incident which has led to this motion being necessary, I would submit that the crux of our motion is to determine how to proceed with the situation as it now sits. Although I have the greatest respect for the legal and constitutional arguments that have been presented both by the Attorney-General and the member for Vancouver East (Mr.

Macdonald) , I am more convinced that the crucial need in today's B.C. society is not to spend many hours arguing legal and constitutional precedents but doing the best job we can to ensure that the public of British Columbia will believe when this decision is finally reached that they have seen justice done in this province. The man on the street and the woman on the street who are the electors who put us in the House are not so desperately concerned that every little, minute aspect of constitutional law be followed.

They are more concerned at electing representatives who will obey the standards that are expected of them as MLAs. If there appears to be some deviation from these standards, intentionally or otherwise, the public of British Columbia wants to be able to know that the manner by which the wrongdoing or alleged wrongdoing is resolved will not be loaded with a political force which predetermines the outcome.

I have listened to the differing points of view from the legal gentlemen in our House today as to procedure. I would just repeat that I don't think the average citizen of British Columbia is interested so much in a very technical and professional dissection of constitutional law going back to I don't know what century the Attorney-General want back to. The people of British Columbia want the procedure to be followed which would assure not only that justice be done but that it be seen to be done.

The B.C. political atmosphere, Mr. Speaker, as we all know, at the moment is one of tremendous acrimony and suspicion where any allegations of impropriety deserve even more than ever before the most open and unquestioned scrutiny so that any kind of investigation carried out would ensure, in my

[ Page 3988 ]

view, three particular things. The first one is that an objective review of the facts in relation to this issue be carried out, and through an objective review the proper conclusion reached. Secondly, the public should be confident in that verdict. We might begin that first painful step back up the road of regaining public confidence in the political process in this province. Of course, the third goal to be attained would be that the public would be convinced that in fact justice had been seen to be done.

I would go further, Mr. Speaker, and say that in today's climate of mistrust and suspicion towards politicians, it is more important to determine the inherent merits or demerits of this particular case.

Politicians and, in fact, the political system have lost a great deal of public confidence in recent years. This is often as a result of alleged or actual conflict of interest relating to the financial interests of politicians. When such serious allegations are raised, the method by which they are examined is even more important than the content of the issue or the conclusion reached by the investigating body.

The motion before us, Mr. Speaker, really centres around the method by which this particular issue should be examined. In my view, not only would examination in the courts guarantee the kind of goals that I mentioned earlier but I think that there may well be more serious allegations than this one in the future. To recognize public feelings and try at this rather crucial time in our political history to set a precedent - namely prove that the government of the day is willing to have the most objective scrutiny of any alleged wrongdoing - would be to everyone's benefit and certainly to the benefit of future politicians who sit in this House and to the future of the people of British Columbia.

As the other two speakers have already mentioned, a special committee of the House merely ensures a government majority on the committee, thereby rendering the committee quite obviously subject to the criticism that it is merely an exercise in political whitewash. This would be the case, Mr. Speaker, even if the same verdict might have been reached in a court devoid of any political overtones.

While we are debating procedure today, we are also debating credibility. We are debating the credibility of this government. I would say that the part of the motion which suggests that a judge be available to interpret points of law, to me as a layman leaves open the very serious question as to whether a political body is trying to give to its activities some veneer of rectitude which everyone knows is probably missing simply because it is a politically appointed body where the members appointing the committee have a primary interest in coming up with a verdict suitable to themselves.

Again, as a layman, I would say that if I were a judge and I were asked to be part of the activities of this proposed committee, I would feel uncomfortable to say the least.

Since I am not a lawyer, I have talked to a few lawyers in trying to prepare my notes for this debate. My first question to my legal friend was: What options are available other than the proposal before the House? I think perhaps every member in this House has some reservations about pushing this particular issue too far for the simple reason that the extent of the so-called offence or wrongdoing and the lack of motive behind it leaves us all.... Perhaps I shouldn't say "leaves us all." Let me speak only for myself.

I feel that this particular situation arose as much out of inexperience and ignorance as by any wilful intent to flout the law. Although I know that ignorance of the law is no excuse for committing an offence, nevertheless, when we look at the total issue we are facing regarding three MLAs, as far as I'm concerned I believe that the offence, if such exists, was done innocently by a well-motivated minister who drew three MLAs into a situation which, had he known, he would have never embarked upon.

Furthermore, it seems to me as a layman that the penalty outlined for this kind of offence - and I keep using the word; I should say "alleged offence" at this stage - is out of all proportion to the offence that's been committed. So my position is to be concerned that three MLAs might well be very harshly penalized for an offence which was carried out without motive and more out of the combined effect of inexperience and ignorance.

And so I said to my legal friend: "What kind of compromise could we find in this situation?" The advice I get is that there is such a thing as a declaratory judgment, in which the judge -and I stand to be corrected if I haven't got the exact description correctly - could be asked to simply declare his

interpretation as to whether or not, in the literal sense, these three MLAs did in fact contravene the Constitution Act. That's where the judgment would cease. The judge would not recommend penalty; he would not pass comment as to motive or otherwise. He would simply issue what is called a declaratory judgment, whereupon the matter could then come back for debate in this House.

I was unable to get the opinion as to whether the judge, if he were asked to consider the whole case, would have any discretion in deciding the penalty if he did find that the MLAs had erred. Therefore, there are these two options - to take the matter the whole way in court or to take the limited action of asking a judge for a so-called declaratory judgment. And that compromise, if I'm accurate in my information, Mr.

Speaker, would seem to me to be the best route for us to follow, for the simple reason, let us say, that if the judge declared that in his opinion these three MLAs had not contravened the Act, the matter would end there. The public of British Columbia would know that it was not a politically motivated decision and that in the eyes and ears and judgment of the

[ Page 3989 ]

member of the court, the law had not been breached.

If the judge decided that the law had been breached, under this procedure, as I understand it, the House would be left to debate further not only the penalty, but even if there needed to be any penalty at all. There again, I would certainly feel more comfortable in being able to be a part of that kind of compromise decision on my part as to whether or not those three MLAs, first of all, had breached the law. Secondly, I would like to be a part of determining, in the light of all the events and information we would then have, what might be an appropriate penalty, if any.

But we're not just trying to determine the best method of dealing with this one particular occasion. With the greatest of respect to both the member for Vancouver East and the

Attorney-General, I don't believe that it is an adequate way in which to decide how to proceed when it's based on cases which go back centuries ago.

This is 1977 we're living in and the whole awareness and critical nature

of the public and all the completely different elements in the electorate compared

with 1600 or whenever some of these references were in the comments of the Attorney-General....

We have to realize that in this debate we're trying to provide some guidelines

for legislators of the future. And the Attorney-General says, quite correctly,

that the Constitution Act is archaic and needs revision and we have to live

with it and so on.

But, Mr. Speaker, you and I know very well that the day when the Constitution Act will be brought up to the kind of modern requirement that perhaps all of us would seek is probably many years down the road. We find that it's very difficult to even proceed with some bills that are before this House right now, bills of some pressing significance for the people of British Columbia right now. I would suggest that the day when we can look forward to having a rewrite of the Constitution Act is a long way down the road.

That being the case, we in this particular debate are setting right now an immediate precedent as to how future cases may well be dealt with. I for my part just wish to repeat that I don't consider this particular alleged offence a serious one, for the reasons I've mentioned, and I won't repeat myself. But there could well be another example next month or next year or the next government, where the matter was of such serious significance that to have it decided by a committee with a political majority would be of far more serious significance than this particular case we're trying to settle.

I don't think we should overlook the significance of the precedents we are setting by going this particular route, or the proposed route the government has before us today, especially when the other option, which I've mentioned - that of seeking a declaratory judgment - seems to me, Mr. Speaker, to offer a very fair solution. It's fair to the House, it's fair to the three MLAs, it's fair to the minister who got them into the situation, and it's fair to the public, to ask a judge to declare in his opinion only one thing: whether the law has been breached.

After that decision is rendered the House can then resume debate on the matter and, should the judge find that the law has been breached, determine at that time an appropriate penalty, or perhaps determine that we've all gained from the experience of discussing this issue and bringing it out into the open and that perhaps no penalty is required.

Mr. Speaker, one thing that must surely be paramount in this debate is that public attitudes today flow as much from the appearances of wrongdoing as the number of times where wrongdoing is proven. When it appears that there may be wrongdoing, it must also appear that the scrutiny and judgment of these allegations must be devoid of political control.

As the Liberal leader (Mr. Gibson) mentioned, we have had experiences recently where committees in this House have not functioned well. I'm being charitable when I use the phrase "not functioned well, " and I've no wish to get into a bitter debate on the details of that statement. I would simply - say that perhaps public confidence in the committee system, if not in our political system in the province, is at a low ebb.

If this current issue is decided in committee, whatever the verdict, however accurate or inaccurate, or even if the verdict was similar to what would have been arrived at in a court, I would suggest - in fact, I feel quite sure - that the public of British Columbia will consider that the committee deliberations and the verdict were so capable of predetermination that the verdict could be expected with certainty and the committee might as well not ever sit.

The example we have set in recent committee activities does not inspire confidence, and if we refer this matter to a committee whose membership has a majority of government members, then I'm sure that the electors in the province will decide the minute this motion is passed that the verdict of the committee is a foregone conclusion.

Mr. Speaker, I would go further and say that if I happen to finish up in this position as an MLA and my actions were open to question, I've no hesitation in saying that I personally would prefer, and I would ask - no matter where I sat in this House - that it go to court first under the declaratory judgment procedure. I know that I for one would feel more confident in the verdict.

I would feel that even if the verdict went against me, in this kind of situation I would feel confident that in coming back to this Legislature most of the members in this House would not seek blood, as somebody suggested, or would not seek to disqualify me from sitting because of an error which obviously was not committed with great wilful

[ Page 3990 ]

intent and malice aforethought, or all the other vindictive phrases which are often attached to offences.

Mr. Speaker, I hope this matter can be resolved without either exaggerating the mistakes that were made or seeking an unreasonable and excessive penalty if, in fact, subsequent events find the three members did breach the law. We're not here, I don't think - and I feel confident most of the members of the combined opposition feel this way - to extract that last drop of blood or that last pound of flesh from members who may or may not have committed mistakes.

We're here to ensure that whatever the verdict is, by whatever body, the members of the House and the electors of British Columbia can feel confident that the proper verdict was reached. What I see as an even more important achievement than that would be the first step towards re-establishing public confidence in the legislators of this province.

HON. MR. MAIR : There is no question, Mr. Speaker, but that this is a motion which must be judged soberly and with a sense of responsibility and on its merits. I would like to say, first of all, that while I disagreed with what was said by the first member for Vancouver East (Mr. Macdonald) , I respect the way in which he made his remarks and I respect the sense of responsibility with which he brought them to the attention of this House. I say the same thing about the member for Oak Bay (Mr. Wallace) .

I do say, in passing, I get a little tired, as some of us do from time to time, with the sanctimonious lectures that we get from the leader of the Liberal Party (Mr. Gibson) , particularly when he talks about patronage and the rule of the majority in parliament, bearing in mind that his party has had a majority in the Parliament of Canada almost since Confederation. What we know about the rule of the majority party in Parliament we have learned from this party.

But the Liberal leader did say something, Mr. Speaker, to which I think we must pay great attention. He criticized the supremacy of parliament. Mr. Speaker, I want to bring to your attention that it is this supremacy of parliament for which thousands of our forebears shed blood and revolutions were fought. It is the supremacy of parliament which is the hallmark of our civilization. The hallmark of our civilization is buttressed by the fact that every five years or less, we allow the people to change, if they wish, who has control of the supremacy of parliament. That is the way we live; that is the civilization as we perceive it; that is democracy as we perceive it.

Now, Mr. Speaker, like my colleague, the Attorney-General, my first reaction upon learning of these lamentable events was that indeed the courts were the people called upon to make the necessary adjudication. But, Mr. Speaker, I was wrong because I made a basic wrongful assumption, and that wrongful assumption was that the courts always have jurisdiction. That, of course, is not so. I took myself back in my own legal learning and the learning that I not only got in law school but long before that, Mr. Member for Prince Rupert, in school days, and recognized that parliament is supreme.

Parliament has the supreme power to determine its own membership and the qualifications and disqualifications unless it delegates that power elsewhere.

Interjection.

HON. MR. MAIR : Now with that in mind - thank you, Mr. Member for Prince Rupert (Mr. Lea) , who constantly interjects - I read with great care the two sections involved -

section 23 and 31. Now if you read those two together carefully, you will see, Mr. Speaker, that the

section demonstrates that once a member is disqualified, he then has forfeited his seat. Then the court can award damages. The question is: Who shall decide whether or not he has forfeited his seat? I suggest to you, Mr. Speaker, to the members, that it is clear not only for the reasons which have been given in his very learned speech by the Attorney-General but it is clear from the very wording of the sections itself that it is parliament and parliament alone who shall determine whether or not disqualification has taken place.

I think it involves, Mr. Speaker, a basic understanding of how our system works. I don't mean this in a patronizing way because sometimes it's easy for us to forget that the courts derive their power from two basic sources, the common law and from parliament, and that parliament has the absolute right to change the common law if it deems it appropriate. Secondly, and most importantly, any authority that the courts have over parliament must come from parliament itself in clear and unequivocal terms.

I think, Mr. Speaker, that that is the important thing to which we must address ourselves. The only authority the courts have over the members of this House must come to them from us in clear, unequivocal terms, as they have under certain statutes, as indeed the Attorney-General has made clear. Under controverted election statutes and things of that nature this and other Houses have said to the courts: "You are the arbiters of whether or not there has been a transgression." But not in the case of disqualification of a member.

I would urge the members here, Mr. Speaker, in order to make a fair determination of the question before them, to read once again the two sections -23 (

l) and

section 31. I'm sorry; I think I gave the wrong numbers earlier. It becomes clear in

section 23 (

l) that while certain conduct is prohibited, the

[ Page 3991 ]

Act is silent as to who shall make that decision. And that is crucial to the determination of the question before us. While the grounds for disqualification are made clear, the person to whom that question is to be referred is not mentioned, whether it be court or parliament. Once again, Mr. Speaker, if you read in

section 31, the

section paraphrase says that when disqualification has been determined - once again being silent as to who makes that determination -then certain results will flow upon application to a court of competent jurisdiction.

Now in the sections, Mr. Speaker, which deal with the qualification of members to sit in this House -and they are sections 2 1 through 3 5 inclusive - the words "court of competent jurisdiction" appear twice. They appear once to give the court power to award damages upon the suit of an elector after a finding of disqualification has been made and, secondly, to give the court of competent jurisdiction the power to award damages when it has been determined that one of our members has taken a seat in the House of Commons in Ottawa.

In both of these cases, the term "court of competent jurisdiction" is used in order to indicate the tribunal that is to set the damages, not the tribunal that will make the decision as to whether or not damages lie.

Now it is this duality of jurisdiction which I am sure, for good reason, is giving some of our members opposite a good deal of trouble, but there is a duality of jurisdiction. It is there, and it is clearly there because parliament has not unequivocally, not even impliedly, given authority to the courts to hear the question of competence, only the question of damages once incompetence has been found. Now, Mr. Speaker, if the remarks that I have made are correct, then we do not have the choice that my friend from Oak Bay would urge upon us.

It is not a question of us coming here today and saying, I select this method or I select that method. We are here, Mr. Speaker, to uphold the law. If the law is, as I have indicated, that it is for us to determine whether or not disqualification has taken place and for a court to determine what that penalty is, then we have no choice. We must refer it to a committee because that is our duty.

Now, Mr. Speaker, over the course of the last week or so I have listened with some interest to alternative suggestions made by members of the opposition. The Leader of the Opposition (Mr. Barrett) is not in his seat but I am sure he would be the first one to tell me if I were quoting him inaccurately. He referred to a case that happened during his administration as a precedent - a gentleman who sat as a member of the board of directors of B.C. Railway.

The Leader of the Opposition is quoted as saying: "Had I only known, I would have referred the matter to the courts." I presume that in coming up with that conclusion, he would have sought and received advice from one of the learned lawyers in his caucus, the first member for Vancouver Centre (Mr. Lauk) . I presume that he would have said: "Had I only known, Mr. Premier, at the time, I would have recommended also that you take that case to court." Now, Mr. Speaker and members, isn't it odd that the president of the B.C.

Railway was none other than the Premier of the day and the present Leader of the Opposition during this entire time, and the first member for Vancouver Centre (Mr. Lauk) was the executive vice-president.

DEPUTY SPEAKER : Hon. member, we are dealing with three specific members on a specific motion.

HON. MR. MAIR : Yes, that's exactly what I am dealing with.

Interjection.

HON. MR. MAIR : I think it's strange, Mr. Speaker, that in that case $250 a month up to $4,500 was paid during the term of office of the two people who are now telling us how we should run this adjudication,

MR. MACDONALD : Order.

HON. MR. MAIR : The appropriate forum, Mr. Speaker, for that member would be a committee of this House, as indeed the appropriate forum for these three members is a committee of this House - same for him, same for these members. I might say, Mr. Speaker, that if the directors of the B.C. Rail in days gone by now wish to make up for their obvious dereliction of duty, I am sure the government now would be pleased to have that case referred to a committee of the House also.

The fact is, though, Mr. Speaker, we have no choice. The law may be something that we would wish otherwise; it may very well be that it should be changed. I think that's implicit in the terms of reference put to this House by the motion of the Attorney-General. Indeed, I think all the sides of the House agree it should be changed. The fact is, it is as it is. We must obey it. It is clear. The motion must pass.

DEPUTY SPEAKER : The hon. Attorney-General closes debate.

HON. MR. GARDOM : Mr. Speaker, I would like to refer shortly to some of the remarks of the hon. members. I will not be long because I don't wish to rehash many of the points that were made. First of all, dealing with the hon. member for Vancouver East (Mr. Macdonald) , he started off with a number of preposterous statements that I am not going to

[ Page 3992 ]

respond to. But I would like to tell him, unequivocally, that we are following the law. We are following the authorities. They have been recited to him and to this House time and time again.

Section 31, as the former Speaker very clearly indicated to the Legislature, provides a right and a remedy for a public complainant and a right and a remedy for a public informant, not for the Lieutenant-Governor-in-Council, not for a minister of the Crown, not for this ministry and not for the government. It's even questionable as to whether that would be a remedy that would be open to any hon. member of the House.

I don't think it would be, the reason being that it could well be a breach of privilege if some hon. member of the House decided to take such an action. But knowing that the member for Vancouver East feels strongly about the matter and is so sure of his grounds, I think we could, perhaps, anticipate him initiating such a lawsuit himself, because the route is still open and that route is not closed. That route is not closed to the general public, and for anyone to suggest anything to the contrary is completely fallacious.

The hon. Liberal leader (Mr. Gibson) came out with some very interesting and moderate statements as usual. He indicated that the House had a right to set up a committee, but he disagreed with the law. Then he made reference to the Constitutional Questions Determination Act. As stated by myself a few days ago and as stated also by my colleague, the Minister of Consumer and Corporate Affairs (Hon. Mr. Mair) , it was the first reaction of myself. As the hon. Conservative leader (Mr. Wallace) said: "By gosh, to me it seems that the appropriate route here is the court." We all felt the same way.

But it is not a court by virtue of the fact that we are saddled with this archaic statute. We have got the law of Elizabeth I during the days of Elizabeth 11, and unfortunately, the law is there, until such time as we can come in with a more appropriate statute. I think there is a very great need for it. I think the fact that the Nunweiler situation and the fact that these three members have very clearly stated it ... the hon. member for Vancouver East even took us to the point that if he happened to have a cup of coffee out of tune he would expect that he would forfeit his seat.

AN HON. MEMBER : Subsidized coffee!

AN HON. MEMBER : The dining room!

HON. MR. GARDOM : All right. But you see, it's the law, too. It certainly is the principle. I'm not questioning that at all. I'm glad you mentioned that point.

But insofar as the Liberal leader's one reference.... Apart from some of the rather snide personal remarks he made, he talked about the Constitutional Questions Determination Act. That is an area that was considered as well. It was not deemed to be an appropriate course because it's not designed for the purpose as it required here: first of all, to determine questions of fact, to examine witnesses, to subpoena documents - all of which is provided within the terms of reference of this committee.

Any of the hon. members who are on this committee will have full and patent opportunities to examine witnesses and lead evidence as they deem fit. That would not be available in the process that was suggested by the hon. Liberal leader. In any event, that statute - I think as he does well know - is essentially designed to deal with constitutional questions that arise as a result of

interpretations of areas between different levels of government, division of powers, intra and ultra vires questions. But since the authorities, Mr. Member, have clearly and patently determined that this assembly has exclusive jurisdiction to deal with the matter, then it would be improper and incorrect, as the last speaker said, for the Crown through the Lieutenant-Governor-in-Council to make a reference to the court under the statute that you suggested. The court would say that you have no business to be here.

Furthermore, its determination, as you know, would be advisory. It wouldn't be binding in any event in the three.... But it's the wrong forum. The elector remedy is still open and still available and I presume that we can anticipate your starting such a proceeding if the hon. first member for Vancouver East would not.

The hon. Liberal leader (Mr. Gibson) did make some reference to ... I think you used the word "charge." Or did you use the words "criminal offence?" I want to be very careful in the way I address my response to you.

[Mr. Speaker in the chair.]

Interjection.

HON. MR. GARDOM : You said you related it to some editorial or to something that you heard and you said these people should be "charged" or it was a "criminal offence."

Interjections.

HON. MR. GARDOM : Why is this agitating you, my friend?

Interjection.

HON. MR. GARDOM : Well, he said it. I'd just like to make this patently clear, too, because we have the rights of three members here. As stated very clearly

[ Page 3993 ]

by the hon. Conservative leader, there is no malice aforethought and it's not a serious case. I say that in no way is this

section 31, which the member for Vancouver East referred to, a criminal statute.

It provides a civil remedy, and there is absolutely no area whatsoever for the laying of criminal proceedings or suggesting that initiating a proceeding under that statute would be a criminal proceeding. There is no provision for laying an indictment or laying of an information. This

section 31, which provides the penalty provision of $500 per day, is civil in concept. It is civil in origin. It provides an award against the party who is found to be in default, and in favour of a public complainant - i.e., an elector, Mr. Speaker.

It's not a fine that is paid unto the Crown. If there's a successful lawsuit under

section 31 - it is open for an individual in the province to take that route, if they so choose - as I've said, that's an electors' remedy. It's one that is not concerned with criminal sanction or criminal law. The route under that is certainly one that is one of an electorate and not one of the assembly.

Carrying on with the hon. Conservative leader's remarks, he made reference to a suggestion of requesting the court to give thought to a declaratory judgment. Really the only people who could do that would be the members themselves, and once again it's not open to them by virtue of the court having in front of it these decided cases. The Privy Council and the Court of Appeal of British Columbia - you can't get any higher authority than that - would say: "Fine and dandy. The proper site and the proper and correct form is parliament.

We are not able to hear that which you are requesting us to hear by virtue of the fact that the law is there and we have to accept it and we have to take it the way that it is." So that would rule that out.

Finally, I did mention to somebody here as to whether or not any member of the House, could initiate - if a member of the House chose to - a proceeding under

section 31. That doesn't seem to be open to a member of the House either, because the member himself would probably be in breach of the privilege of the House because proceedings to determine a member's right to sit have always been regarded by the House of Commons as a breach of privilege unless authorized by statute. We're right back to square one. As the Minister of Consumer and Corporate Affairs (Hon. Mr. Mair) explained to you, your rationale just does not fit into place. The House of Commons has never, ever expressly abandoned its claim to treat the proceedings otherwise than as a breach of privilege,

Hon. members, I think that we have canvassed the matter sufficiently and I would like at this point - as I did at the opening of my remarks - to move the motion which I have read and filed; it's No. 15 on the order paper.

Motion approved on the following division:

YEAS - 28

Waterland

Davis

McClelland

Williams

Mair

Nielsen

Vander Zalm

Davidson

Kempf

Lloyd

McCarthy

Phillips

Gardom

Bennett

Wolfe

McGeer

Curtis

Fraser

Calder

Shelford

Jordan

Schroeder

Bawtree

Rogers

Mussallem

Loewen

Veitch

Strongman

NAYS - 16

Wallace, G.S.

Gibson

Nicolson

Lea

Dailly

Stupich

King

Barrett

Macdonald

Levi

Sanford

Skelly

D'Arcy

Lockstead

Brown

Barber

Division ordered to be recorded in the Journals of the House.

The House in Committee of Supply; Mr. Schroeder in the chair.

ESTIMATES: MINISTRY OF EDUCATION

(continued)

On vote 158: minister's office, $133,168 -

continued.

MR. MACDONALD : Mr. Chairman, we've been talking a little bit about ICBC and three claims. The minister has been making all kinds of noises about police investigations. I want to ask him just what he means by a police investigation into three claims, but I think I should put down on Hansard one of the claims, the Surrey Dodge thing, which may seem complicated to hon. members, but isn't really very complicated. I think it's important that we just lay out the simple facts of how it undoubtedly happened that ICBC paid a claim that it shouldn't have paid. As I say, the claim is not all that complicated.

Some of the minister's attitudes have been very incredible, Mr. Chairman. He makes a point of sort of being very proud of the fact that he knows nothing about the claim and that he's never read the file. Yet he's a director of ICBC and over the last two weeks he's been bringing to the House and filing with the House disclaimers, that this Surrey Dodge claim was properly handled and that everything was all right. He

[ Page 3994 ]

hasn't checked that information himself! I find that totally incredible - that a minister of the Crown who is a director, when a claim of this importance is brought to his attention, doesn't even read the file, with the result that you filed false information in this House on two occasions.

Interjection.

MR. MACDONALD : Well, I think a minister surely, if he's in charge of his assignment of duties, should at least be familiar with what he is filing in the House and the facts and circumstances. Yet this minister has come into the House ... I can give a couple of instances where he has filed information -and then I'm going to describe the case a little bit -that simply doesn't stand up.

In the Surrey Dodge case, the Minister of Education filed this with the House. He said, on page 5 of B.F. Pearson's report, which he filed on June 10 ... Mr. Chairman, this was false information given to the House and which, if it wasn't for the disclosure that has taken place, presumably would have been accepted. But Mr. Pearson, in giving his report to the legislature, says this:

"The fourth claim was by Surrey Dodge which is a car dealership in Surrey. This claim was never formally denied, but if a denial had been made, it could have been successfully sustained, et cetera."

Now was the claim ever formally denied, Mr. Chairman? Was it ever denied? The minister says it was never formally denied and he repeats that. Has the minister read the file in the meantime? Has he seen whether ICBC did formally deny that claim? Have you seen....

HON. P.L. McGEER (Minister of Education) : On a point of order. Mr. Chairman, on a point of order. I would like....

MR. CHAIRMAN : On a point of order. State your point of order.

HON. MR. McGEER : Mr. Chairman, the information that I filed in the House was obtained from the head of the claims coverage committee, the individual in ICBC who is in charge of claims for the corporation. I take it, Mr. Chairman, that the first member for Vancouver East is accusing Mr. Pearson of providing false information to the House.

MR. MACDONALD : No, no. The minister....

MR. BARRETT : That's not a point of order,

HON. MR. McGEER : If so, I wish he would state it explicitly because we should have the official at the bar of the House if that's the case.

MR. CHAIRMAN : Order, please, hon. member. The committee is not aware of the filing of documents. As all members know, documents are filed in the House itself; the committee does not have knowledge of that filing. But if there was any imputation of wrongdoing against any member, the Chair cannot allow that. However, members outside of this House do not enjoy that same luxury.

MR. MACDONALD : Well, Mr. Chairman, what I'm saying is that the Minister of Education filed with the House information which he ought to have known was false.

AN HON. MEMBER : The affidavit.

MR. MACDONALD : He said for example - I've just read the words....

HON. MR. McGEER : On a point of order. Is the member saying that I've given false information to the House? Because if he is, or if he says I filed false information, then I must ask him to withdraw because the member is not only slandering another member, lie's lying for the record in Hansard and he's totally incorrect.

MR. CHAIRMAN : That point is well taken. If the member for Vancouver East is indicating wrongdoing by the Minister of Education or if he's imputing any improper motive, then I must ask him to withdraw.

MR. MACDONALD : Let me repeat my statement. The Minister of Education....

MR. CHAIRMAN : Order, please. I just have to clarify whether impution is taking place. If it is, then I must ask you to withdraw.

MR. MACDONALD : I'm saying that the Minister of Education was, at the very best, wilfully blind to the facts and he filed information with the Legislature which he ought to have known was false.

MR. CHAIRMAN : Hon. member, if the member for Vancouver East is imputing any improper motive to the Minister of Education, then I must ask him to withdraw.

MR. MACDONALD : No, I'm not talking about motive at all, Mr. Chairman, and I'm not... Anything about motive I withdraw, if I said it in the first place....

MR. CHAIRMAN : I personally find the phrase "wilfully blind" to be akin to "deliberately

[ Page 3995 ]

misleading" and that is why the Chair is just a little exercised. Perhaps we should caution on that phrase?

MR. MACDONALD : Well, Mr. Chairman, the phrase "wilfully blind" involves reckless conduct in the face of the facts. Well, I suppose it is but here we have a minister who comes into the Legislature, files papers which justify the way ICBC handled the Surrey Dodge claim and then says: "Well, I don't know whether these papers are true or not because I haven't read the file." Now that's being wilfully blind to the facts.

MR. BARRETT : He said that they never turned the case down.

MR. MACDONALD : Yes, and let's just deal with that.

MR. BARRETT : Oh, he nodded his head. Let's get that on the record. He nodded his head in agreement.

MR. MACDONALD : Is the minister saying the Surrey Dodge claim was never denied by ICBC?

HON. MR. McGEER : The information supplied to me by Mr. B.F. Pearson, which I tabled in the House, is correct information. I have verified that fact with them.

Mr. Chairman, it's not a question of reading the file. It's a question of attesting to the accuracy of material that I filed in the House since I filed it. That commitment has been given by the head of claims. The member says that it was some oversight and wasn't a statement of fact stated by the person in charge at ICBC who, despite what the member says, has affirmed this was the situation and would affirm it now. If you want to say that member gives false testimony to the House, go ahead and say it, but I have verified with him that, in fact, he gave correct information. He doesn't withdraw or amend it. That is how the matter stands.

MR. MACDONALD : Mr. Chairman, the minister is simply not answering the question at all that has been posed to him.

HON. MR. McGEER : What question has been posed?

MR. MACDONALD : I just asked this question: Did ICBC reject the claim of Surrey Dodge prior to it finally being paid?

HON. MR. McGEER : Mr. Chairman, the question was whether or not the information I filed in the House was correct or incorrect.

MR. BARRETT : Oh, no. You're backing off.

HON. MR. McGEER : The information said the claim was never formally denied. I have checked that with the officials of the corporation. They stand by that statement and assure me it is correct. I have said to the House that I've not read any ICBC files. I'm not going to read any ICBC files. We have competent people in the corporation to do that. If the member wishes to call those individuals to the bar of the House or before the public accounts committee...

MR. MACDONALD : We're calling you!

HON. MR. McGEER : ... they may, but, Mr. Chairman, I'm not going to attempt to adjudicate ICBC files. I'm not going to deal in stolen documents.

I will say, Mr. Chairman, that when I was first told last May that the ICBC files had been tampered with and a number of cases had been given to the press and the NDP and that it was the intention of the NDP to bring these forward when the House sat for the purposes of a political campaign, I had those files investigated. I received a report from the senior officials of the corporation which was in my desk the day the House reconvened. As soon as the opposition asked for it, I tabled those documents in the House. Since that time, day by day, Mr.

Chairman, a stolen document a day has been tabled in this House and each day I have gone back to the corporation with those stolen documents, saying: "What are the facts?" Nothing has emerged since that time that would make the senior officials of the corporation want to amend or withdraw any statements.

Instead of this slandering in the House, the member has a perfectly valid course that he can follow which protects the identity of individuals and does not violate the law. That is to go to public accounts. He knows it very well. Instead, Mr. Chairman, this is a calculated campaign of discreditation against a member of this House because of resentment on the part of that member for Vancouver East, and the other person who sits in the place of the person who originally won that seat, in resentment of the member for Coquitlam (Mr. Kerster) ...

MR. BARRETT : Ohhh! Order!

HON. MR. McGEER : ... because he defeated him in an election campaign.

MR. BARRETT : Point of order, Mr. Chairman.

HON. MR. McGEER : I tell you, Mr. Chairman...

MR. CHAIRMAN : Order, please.

[ Page 3996 ]

HON. MR. McGEER : ... that that word came to me weeks and weeks and weeks before this House sat.

MR. CHAIRMAN : Order, please. The Leader of the Opposition on a point of order.

MR. BARRETT : Mr. Chairman, I ask the member to withdraw the imputation against the motive for any matter brought to this House myself. He is saying there is an ulterior motive for my raising any matter in this House that impugns the honour of any member.

HON. MR. McGEER : Mr. Chairman, I withdraw, but perhaps the members for Vancouver East could explain just why they did bring this into the House.

MR. BARRETT : Mr. Chairman, on a point of order.

HON. MR. McGEER : Why do they deal in stolen documents? Why don't they go the route they should go?

MR. CHAIRMAN : Order, please, hon. member.

HON. MR. McGEER : Why is it we are told these things weeks and weeks and weeks before the House sits?

MR. BARRETT : Mr. Chairman, on a point of order.

MR. CHAIRMAN : Order, please.

HON. MR. McGEER : Why are we told that ICBC files were tampered with? Why are we told that it's sent to the press?

MR. CHAIRMAN : Order, please.

MR. BARRETT : On a point of order, Mr. Chairman.

HON. MR. McGEER : Why are we told that it's sent to the members of the opposition? Why isn't this brought up in public accounts where it should be?

MR. MACDONALD : This is public accounts, right here!

MR. BARRETT : Mr. Chairman, on a point of order, I asked for an unequivocal withdrawal. As far as public accounts go, your majority tried to wipe out taped records of public accounts!

MR. CHAIRMAN : Order, please.

MR. B