1984 Legislative Session: 2nd Session, 33rd 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)

THURSDAY, APRIL 12, 1984

Morning Sitting

[ Page

4373 ]

CONTENTS

Routine Proceedings

Election Amendment Act, 1984 (Bill 20). Hon. Mr. Chabot.

Introduction and first reading –– 4373

Human Rights Act (Bill 11). Second reading

Hon. Mr. McClelland –– 4373

Mr. Gabelmann –– 4375

THURSDAY, APRIL 12, 1984

The House met at 10:07 a.m.

Prayers.

HON. A. FRASER: Not often does the MLA for Cariboo have

guests here, but in the members' gallery this morning is Mr. Don Lobb

from my home town of Quesnel, who is with the local newspaper, the Cariboo Observer .

On behalf of my colleague the Minister of Environment, Lands, Parks and

Housing, and the MLA for North Peace River, I am happy to tell you, Mr.

Speaker, that in the gallery this morning is a group of grade 11

students from Fort Nelson Secondary School, accompanied by their

teacher Miss Kathleen Wiwchar. Would you be good enough to welcome

these people who really have a trip to come down here.

Introduction of Bills

ELECTION AMENDMENT ACT, 1984

Hon. Mr. Chabot presented a message from His Honour the Lieutenant-Governor:

a bill intituled Election Amendment Act, 1984.

Bill 20 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.

Hon. Mr. Hewitt tabled the annual report of the Ministry of Consumer

and Corporate Affairs for the fiscal year ending March 31, 1983.

Orders of the Day

HON. MR. GARDOM: Leave to proceed to public bills and orders.

Leave granted.

HON. MR. GARDOM: Mr. Speaker, I call second reading of Bill 11.

HUMAN RIGHTS ACT

HON. MR. McCLELLAND: Mr. Speaker, I have the honour now to

move second reading of Bill 11, the Human Rights Act,

an act that I

believe will help make human rights second nature to all of us here in

British Columbia.

Equal rights and equal opportunity are fundamental to the freedoms we enjoy

in this province: freedom, without limitation of race, colour or creed, to take

part in all of the advantages society has to offer; freedom to make our homes

wherever we choose, so far as our means allows us, and to advance in employment

as far as our initiative, training and skills will take us; freedom to live

without harassment or discrimination based on hatred, prejudice, bigotry, ignorance

or fear. These are the basic tenets upon which all human rights legislation

should be based. This new bill is the government's reaffirmation of these

principles, as well as its dedication to provide direct and effective remedy

to people whose human rights have been denied.

The community as a whole has a stake in the human rights of each of

its individual members, for individuals are what make our communities

strong. It has an important role to play in support of human rights in

British Columbia, because human rights are not something that are

acquired, not something we can buy, or earn from living here for a

certain length of time, nor something we can trade away. They are

something we have, each of us, in full measure. And they are something,

unfortunately, that can be lost through ignorance or apathy. Ignorance

never was much of an excuse for discrimination, and apathy has always

been a major barrier in the way of human rights for all. So only the

community, which means each of us and all of us acting together, can

change that and turn it around.

During the 1970s, more and more under our present rules, more

impossible grounds of discrimination were defined. The meaning of

discrimination became less and less clear. How can society deal with

really harmful cases of discrimination in employment, tenancy or access

to facilities and services when members of the public are so unclear

about what discrimination means? The whole concept of human rights and

discrimination became diluted, to the extent that it now encompasses

just about everything from the most trivial complaints to the most

serious violations of human dignity. Who can define discrimination

under those circumstances? And if we don't know what it is, Mr.

Speaker, how can we ever hope to make progress toward eliminating it

through — legislation or in other ways?

The Human Rights Code contained a number of serious defects in its

content and in its administration. Chief among these are the

uncertainty as to what did constitute discrimination under the Code,

trivialization of our human rights process by allowing complaints which

didn't deal with substantive discrimination problems, and the slowness

of the system in resolving legitimate human rights problems. We found

that we got bogged down in the bureaucratic process, trapped by the

belief that there is a bureaucratic solution to the problem of

preserving basic human rights in our society.

There is no question that discrimination does occur, and occurs

perhaps all too often in our society. There is no doubt, either, that

people's basic rights to equality of opportunity are often denied to

them because of such discrimination. We found that the administrative

structure and the legislative framework which have been in place for

the past ten years were in need of review and change. The changes

proposed here are designed to meet the needs of the people of British

Columbia today and in the future. In this case the need is to reduce

discrimination, and we had to find a more effective way to do that. By

making the prohibited grounds of discrimination more specific, the act

will strengthen available protection. There will be no doubt about what

is unacceptable conduct in the community or the workplace. We are

removing the element of uncertainty.

[10:15]

Protection of human rights under this act will focus on the real

problems of discrimination — the serious obstacles faced by those who

are denied opportunities for the basics of life because of prejudices.

It will not provide for mediation of disputes at the taxpayers' expense

between people who simply can't get along with each other. The new act

enhances and

[ Page 4374 ]

adds to the protections already in existence. It

provides specific protection for persons discriminated against because

of physical or mental disability. Disabled people should have the same

chance as anybody else to live and work in and make a contribution to

their community. Having a job, being independent, being able to take an

active

part in what's going on — these things don't lose their

importance just because one is disabled.

I want to speak just for a moment about the consultative process

that has taken place in connection with this legislation. I have

received numerous submissions, ranging from individual letters to

briefs from organizations of one kind or another, most of which contain

positive suggestions. I also formed a special committee to advise me on

these matters — the Human Rights Advisory Committee. Some of the

committee's recommendations — not all of them — are contained in the

bill before us now. That process was useful and constructive, and it

resulted in legislation that I believe is more finely tuned to the

requirements of our province.

Among some of the suggestions accepted as a result of the briefs and

the committee is that under Bill 11 employment agencies cannot refuse

to refer individuals on the basis of discrimination. The council will

be obligated to conduct an initial investigation before dismissing or

redirecting a complaint. The council has been given the option of

holding a hearing itself and making a final order itself. This was done

in the interest of ensuring more prompt handling of complaints.

Provision is made to specifically recognize that programs designed to

assist the disadvantaged are not in contravention of human rights. In

cases such as a mental or physical handicap, provision is made for a

third party to file a complaint on behalf of an individual alleged to

have been discriminated against. That third party may also remain

involved in the proceedings to their conclusion. The legislation now

contains tests that the council may apply before proceeding with a full

investigation. Discrimination in employment advertising has been added

to the list of prohibited actions, and the concerns of the insurance

industry were heard and amendments made to recognize valid actuarial

matters.

Strong enforcement of human rights will make people in the community

sit up and take notice. The main objective in human rights legislation,

or in the enforcement of that legislation, should not be to get

vengeance. It isn't to get back at somebody. It is simply to get the

people who are discriminating to stop discriminating and to not do it

again. That's what we want to do under our new process. By placing that

sort of emphasis, I believe that a much more telling message that human

rights do matter, and that discrimination must be done away with, will

start to filter through.

Appointments to the new Human Rights Council will be made as soon as

practicable after the new act comes into force. Council members will

bring to their new posts experience, integrity and credibility. That

council will have the support of my office, the Ministry of Labour as a

whole, and field staff in various locations throughout the province.

Speed will be one of the key features of the administration of our

new act. In human rights cases, as much as or more than in any other

type of dispute, time should be of the essence. Justice delayed here

really is justice denied. Two and three years, and as much as six

years, waiting for resolution has been routine under the system which

has been in place for the past ten years. In one instance, I recall

reading about a respondent who quietly went out of business while his

lawyer played the waiting game. In another, the respondent, an

employer, had an offer of settlement on the table for almost two years,

an offer which would have put an end to the blanket discrimination in

the workplace which gave rise to the complaint in the first place. Not

only the complainant but many fellow workers would have benefited with

a speedy resolution of that matter, but it didn't happen.

Time and time again, three, four and five years went by with no

resolution of very important disputes. While those cases are waiting

resolution, the complainant doesn't know where he or she stands, and

doesn't know if protection from discrimination is available or not. The

respondent doesn't know either — in many instances doesn't even know if

the person is guilty or innocent, or how much the whole thing is going

to cost in legal fees or in an award against it. The longer the delay

the greater the uncertainty. In the end, one or two or five years

later, what satisfaction is there in winning a case, in having been

proven right, one way or the other? If the respondent wins, he's bound

to feel the case never should have come forward in the first place.

Victory is just as hollow for the complainant, who in all likelihood

has found a different place to live or a different place to work in the

meantime. The principle of human rights may have been preserved in some

way, but no real justice was done and no real protection given.

Under the new act there will be no deal-making, because you don't

make deals with discrimination, Mr. Speaker. The legislation also

contains provision for the council to recommend the settlement of a

complaint where that appears to be in the best interest of both

parties. Acceptance of that recommendation would end the proceedings.

The basis of the new process will be impartial, fair decision-making by

the council in recognition of the need above all to resolve human

rights cases quickly and fairly.

I have already met with influential members of the province's

business and industrial communities, with the heads of landlord groups

and with public sector employers. I have challenged each of them to

design and bring forward plans by which their respective organizations

intend to protect human rights, prevent discrimination and ensure the

success of this new legislation.

My staff have met with representatives of the employer community. We

are well on the way to developing a program to allow employer groups to

take a larger responsibility in human rights matters, to protect human

rights, to prevent discrimination and to ensure the success of our

programs for the future. We're asking employers to take a higher

profile, not just to pay lip-service to human rights, but to embrace

this act as part of their employment policy. If employers or other

groups don't do their

part voluntarily, the full force of the law will

be upon them, but I feel that employers will willingly take on this

responsibility.

At this time, Mr. Speaker, I want to thank the members of the Human

Rights Advisory Committee, who worked very well together and gave of

their experience and expertise. I want to give recognition to Mr. Barry

Sullivan, who chaired the committee, and committee members Lynn Smith,

Jane Evans, Eric Powell and Jim Edgett. What was good about this

committee was that they came to their assignment with no biases, only

with the view of improving human rights in this province.

[ Page

4375 ]

I began my remarks today by saying that I hoped that human rights will become

second nature to all British Columbians, that I believe this act can help make

that come true. As we all know, government can bring in and enforce legislation,

but in the difficult areas of human rights and morality standards of community

behaviour government cannot bear the whole responsibility. This new act won't

bring an end to discrimination by itself. Justice cannot be legislated into

being; it can only be advanced, fostered and made accessible to all. All of

us in this province are responsible for human rights. Each of us as individuals

has a responsibility to overcome ignorance and apathy so that it becomes unthinkable

for anyone to commit discriminatory acts. We want to promote this awareness,

and to this end government is prepared to earmark funds to embark on an extensive

human rights education program, which will begin immediately. Maybe some day

human rights issues will become non-issues in British Columbia. I look forward

to the day when human rights is left out of newspaper columns, simply because

the whole thing is so basic, ordinary and dull that there is no point in talking

about it anymore. We want this new act to quietly and effectively work its way

out of existence, if it can, because we hope it might someday not be needed

any more in our province — and I don't believe that's a vain hope. We

could not leave a better legacy to our grandchildren and their grandchildren

than a society free of discrimination, a society where human rights come naturally

to all of us.

With that, Mr. Speaker, I move second reading.

MR. GABELMANN: Mr. Speaker, it is a bit difficult to know

where to start this morning. There are at least four or five obvious

starting points, in my mind. But I guess the first one that I want to

register with the House, and with the government House Leader

particularly, is that we on this side of the House feel the same as do

countless hundreds and thousands of people in the community who object

to the undue haste with which this bill is being presented. It was

introduced for first reading at 6 o'clock on Tuesday evening, and on

Wednesday those people who were able to receive copies of the bill by

courier — from our office incidentally, not from the minister's — began

to see for the first time the contents of this legislation and to begin

a process of examination and analysis, which is still continuing. Here

we are on Thursday at 10 a.m. beginning debate on second reading.

Often quick debate of a bill can be appropriate, but in a bill of

this kind, where every British Columbian is involved — some more than

others — it seems only appropriate that every British Columbian have an

opportunity to read, examine and digest the bill, and to make comments

to their MLAs as to what positions should be taken on the bill. I don't

believe that very many MLAs have had an opportunity to have feedback

from their constituents about the contents of this legislation. Most of

our constituents have not yet seen the bill. Most of the people in our

community who are leaders in human rights have only just begun an

analysis and a look at the bill.

I suppose I could rant and rave and shout and scream about the unfairness of

this undue haste, but it wouldn't do any good. It's not often my style

anyway. But I want to say in the clearest, most definitive terms that it's

possible for me to use that I believe this undue haste is wrong, undemocratic

and unfair to those thousands of British Columbians who do want to have a look

at it first.

[10:30]

There is one argument that could be made that it doesn't matter that

it's brought in quickly, and that's that British Columbians have had

since July 7 to examine this bill. There's some validity to that.

British Columbians have in fact had since last July, when it was called

Bill 27, to examine the contents of Bill 11. The minister didn't take

very long in his opening comments to indicate to the House what the

changes were between Bill 27 of last July and Bill 11 of this April,

because there aren't very many changes. A couple of things that were

forgotten in the haste of writing the bill last year were included this

time — newspaper advertising that discriminates being the most obvious

one. Some changes in the procedures by which the council deals with

complaints were improved. I'm happy to say that. I think it's better

than it was. It was lousy before, and it's marginally better now. The

council, incidentally, still is both examiner and judge, which is a

serious defect from any perspective relating to law, in my view.

[Mr. Strachan in the chair.]

Nevertheless, there were a couple of changes. But if the government

wants to argue that bringing this legislation in as quickly as it has,

in the sense that one full day has elapsed between the introduction and

the debate.... They could argue, I suppose, that the public has had

ample opportunity to study and to consider the legislation, because it

is, in fact, the same as the legislation that was introduced last July.

Despite all the rhetoric of the minister, and his earlier press release

notwithstanding, it is substantially the same.

What happened last summer as a result of the introduction of Bill 27

was that, given the time that the community had to examine that

legislation, it was apparent that the bill was not satisfactory. What

we were doing in British Columbia was, in fact, going in a direction

opposite to that taken by every other jurisdiction in Canada. And the

community expressed its view. Not just activists in human rights, not

just New Democrats, not just activist trade unionists, but a wide

representation of the community said that Bill 27 was wrong and

counterproductive in terms of developing proper human rights programs

in British Columbia.

The government appeared to acknowledge that concern by not

proceeding with Bill 27 in last year's session. In fact, it was

discussed in the discussions that went on in various forms and various

places with various people, concluded by discussions between the

Premier and one of the vice-presidents of the B.C. Federation of Labour

in Kelowna last November. At that time clear agreement appeared to have

been reached that Bill 27 was inappropriate and needed to be

substantially amended.

To that end, an agreement was made that a consultative committee

would be appointed, and it was. The consultative committee wasn't able

to talk to the community. Even now they aren't able to say publicly

what their recommendations were. Supposedly, because presumably we

still have free speech in this society, they are able to make their

comments as individuals about what they feel this bill represents. But

they're denied the right to say to me, the press, the public — or

anyone else, for that matter — what it was they recommended, and what

it was the committee had rejected by the ministry. That's one of the

rules that was imposed upon this

[ Page 4376 ]

so-called consultative process. The committee was

not allowed to hold public hearings. No knowledge exists in the

community, that I'm aware of, of when the committee met and who they

met with. The process was, in fact, one in which the minister could vet

every suggestion or complaint or proposal that might come in. They had

to come to the minister, and the minister would then refer those

suggestions to the committee. It didn't matter what the committee

proposed.

It strikes me as curious that a committee could still be meeting on

Thursday of one week, and a bill could be printed and introduced by

Tuesday of the next. Either somebody works very quickly or, more

likely, the decisions about what would be in the bill had been made

sometime earlier and outside the parameters of the consultative

committee.

What we have here is a betrayal of the Kelowna Accord. This is a

slap in the face to every one of those people who last year felt that

they, through the exercise of their democratic rights in objecting to

legislation, were participating members of society in a full and

democratic way. Those people felt they were able to influence the

course of legislation and, as a result, have an improved Human Rights

Code in this province. What are they faced with as of Tuesday night at

six o'clock? They're faced with the same legislation all over again.

There are some significant elements not contained in the

legislation. The minister talked — I'll deal with this one first —

about there being an education program starting almost immediately.

There's no mandate whatsoever in this legislation for an education

program. The minister wants to do it in-house in the Ministry of

Labour. It's not contained in the bill.

As I read the bill, there's no possibility of assistance to the

council in terms of staff in investigating complaints. The minister

makes reference to staff all over the province. The only staff I can

think of would be industrial relations officers who deal with labour

matters, not human rights matters They're not trained to deal with

human rights matters They're substantially different from each other.

But the minister claims that the act will be administered by people —

these weren't his words — in effect, all over the province. Those are

industrial relations officers, who, as I say, are by their own

admission, for the most part, not equipped or trained, and who

certainly don't have time.

MS. SANFORD: They don't want to do it.

MR. GABELMANN: Yes, you're right.

The only appropriation

section in terms of money to make this thing

work, as I read it — apart from the ability of the council to be paid

or to be a public servant — goes through to March 31, 1985. Presumably

that means that in next year's estimates there will be a budget

presented for this particular legislation, and we will have some number

of dollars allocated to human rights under the 1985-86 budget. The

minister didn't say so. There's no evidence of that whatsoever. I can

only conclude that he does not intend for there to be a budget so this

Human Rights Council can properly operate.

I'll go back later to the whole question of human rights education.

There is another major element that this bill does not include in

its line of responsibility. The minister said that — again, I'm using

my words and not his, but the intent, I think, is the same — the Human

Rights Code needed adjustment and amendment. That's true; it did. It

didn't have the disabled and handicapped

section in it. It didn't have

a number of other provisions in it that we all agree should be in. But

it didn't have something else either that should be in, which is that

it should be responsible to this Legislature, not to a political

minister.

The Human Rights Council should be, in my view and in the view of

our caucus.... It's one of the changes that occurs. Nineteen

seventy-four is a long time ago, and the Code at that time was breaking

new ground, and did so admirably, in my view. It was an excellent Code.

But no one would ever argue that time doesn't produce the need for

changes. One of the clearly evident changes that is required is the

change that the council — or commission, or branch, or whatever term we

want to give to the people who administer the legislation — needs to be

responsible not to a minister but to the Legislature, in the same way

as the auditor-general and the ombudsman are responsible to the House

and in the same way that the federal human rights commissioner is

responsible to the Parliament of Canada. That's a principle, I think,

whose time has come. That's a principle which I think is accepted

widely now by all political parties in this country except Social

Credit — a principle that should be accepted, in my view, and is

obviously not accepted by this government.

The minister complained that under the Code there were excessive

delays. For the most part those delays were political delays by

ministers before this one. I would grant that the current minister

acted far more quickly in referring complaints to boards of inquiry

than was the case in prior administrations. That was partly a fault of

the Code, and I concede there was some problem with the Code in that

respect. But it was primarily as a result of referrals to the minister

sitting on the minister's desk month after month after month. I had

once a case in my constituency that sat on the previous minister's desk

for several years. That wasn't as a result of bad drafting of the Code.

That was as a result of a lack of desire by ministers to proceed in

some cases for political reasons.

MS. SANFORD: That's where the major delays were — on the desk of the minister.

MR. GABELMANN: The delays were on the desk; the delays

weren't in the Code. This minister proved that, after he assumed the

responsibility of being Minister of Labour, by quickly making referrals

to boards of inquiry in cases where he felt that should happen, and

dismissing, in effect, cases which he felt shouldn't be referred. He

acted very quickly. If there is an area of agreement between the

minister and I on this question, it's that speed is important — no

question.

When you have political decisions made about things like human

rights, you are inevitably going to have delays, because once in a

while a political decision is going to have to be made that will

trample on some political friends. That's going to happen once in a

while. Those political friends are very likely, if they're at all

alert, going to want to have a meeting with the minister about that

particular case and to make representations about why that particular

complaint shouldn't go ahead. The public will never know what the

discussions were and why a board might not have been appointed. That

occurred in the Code. That occurred in Bill 27 and that can occur in

Bill 11, because the minister has that right, under one

section of the

bill, not to appoint a board of

[ Page

4377 ]

inquiry if he so chooses. That should not be a decision that's held by politicians.

One of the reasons that we so carefully maintain the independence of

the judiciary in the courts is so that there cannot be an appearance of

political interference; similarly with the ombudsman's office. It's

important that there not be any possibility of political interference

happening, or being seen to happen, or being expected to happen, or

being assumed even when it isn't happening. In human rights the same

principles apply as apply in legal matters and in matters that go to

the ombudsman. The bill fails miserably in that respect, in that in

many ways it enshrines and secures the power of the minister, rather

than takes power away from him, as should happen.

The minister took some delight in suggesting that the government

had, through this legislation, improved the rights for the disabled and

handicapped by including them in the group of people who cannot be

discriminated against. Everyone who is active in disabled or

handicapped organizations says they had more protection under the Code

than they will have under this bill. Why is that? Because the Code

contained the reason....

HON. MR. McCLELLAND: There's one in here who doesn't agree with you.

MR. GABELMANN: That may well be. There's more than one

disabled person in this room. We all are in one way or another — some

of us mentally and some otherwise.

The member for Vancouver–Little Mountain may well have.... And I'm

certain he will be speaking on the bill, and there's no question about

that. I'm not saying that every person who is physically or mentally

disabled in this province is going to take exactly the same view.

Obviously they won't. But the organizations that represent, for the

most part, mentally and physically handicapped people argue, I think

properly — and I think they make their case successfully — that the

reasonable cause provision contained in the Code grants them more

rights than are granted by a specific inclusion in the group of people

who cannot be discriminated against.

[10:45]

The other problem with eliminating the reasonable cause protection is that

now there is a whole unnamed group of people in our society who are often discriminated

against. Now those people are not protected whatsoever. There is no protection

in the Code for those who feel they are denied a job because of their language

Under the Labour Code it used to be, and still is until the Code is repealed,

that people in that position were able to argue under the reasonable cause provision

that they might have been discriminated against because of their failure to

recently; there was one in Prince George. There have been several cases where

that point was made under the reasonable cause provision. It's not just

against; it could be immigrants; it could be somebody with a Cockney accent,

who might argue that that's why he didn't get a job. They've got

no protection now under any provisions of this code.

Someone who feels he is discriminated against in a tenancy.... For

example, those trying to rent an apartment might be discriminated

against because they are gay. There is no protection for sexual

preference, none whatsoever; there was under the Code, because the Code

allowed for reasonable cause to be applied as to whether or not one was

being discriminated against. Under this

section it's open season on the

so-called gay community. There is now no protection whatsoever.

I would argue that under this

section there is no protection for

pregnant women. You can't discriminate on the basis of sex in most

cases — fair enough — but you can in a job application form,

incidentally, because that's not covered in this bill. Theoretically,

you can't discriminate on the basis of gender. Everybody uses the word

"sex"; I prefer the word "gender." Whatever words you use, it doesn't

matter. But now in this province you can discriminate on the basis of

pregnancy: I'm not going to hire that person because she might get

pregnant. No doubt it will be argued when the cases come up that that's

discrimination on the basis of gender; hopefully it will be successful.

In the case of a person who might already be pregnant applying for a

job, I suspect the case would be more difficult to prove.

There's no guarantee that boards of inquiry, or the council itself

if it takes jurisdiction, are going to make the appropriate decision.

They would have under the old Code. Under the old Code it was clear:

you could not discriminate against people, and the rules relating to it

were reasonable cause. Why would the government decide to remove that

section from the legislation? Is it to pander to the racists in this

society, like Doug Collins? Or is it to pander to the attitudes

expressed so well the other day by the Premier when he refused in

question period to make any statement supportive of the

Japanese-Canadians' position in terms of reparations in this country?

That's racist. My stepfather was a German-Canadian. He didn't have

his orchard taken away from him during World War II, but

Japanese-Canadians had their boats and their homes taken away from

them. We were at war with both countries. Why did we do it to the

Japanese and not to the Germans? Because the Germans were Caucasians,

and because we're a racist society. Given an opportunity the other day

to make some small amends for that degrading episode in our history in

this province, the Premier declined to take the opportunity. Is that

the kind of racism that we're pandering to in this legislation? Is that

why the reasonable cause provision has been eliminated?

There are now a variety of groups of people who are not named

specifically in the legislation who can now be discriminated against.

The minister talks about his hope that we will come to a day when we

won't need legislation, and we won't need to talk about human rights

because it will be boring. Mr. Speaker, we are a long way from that

day. Why would the government, in designing new legislation, decide to

take a step backwards, to move away from the direction followed by

other provinces and jurisdictions? It is a baffling question, and my

only answer, when I try to find out why they would deny the protection

of the Code to those many people who are not named, and would limit the

opportunities for people who are discriminated against, is that it is

not just some members of the public who are racist and like to

discriminate; it is also some members of the government. What other

reason could there be?

[ Page 4378 ]

What reason could there be to include mentally handicapped and

physically disabled people in the

section relating to actuarial tables?

Why can insurance companies now discriminate against physically

handicapped people? I understand the argument about gender and the fact

that women live eight or nine years longer than men — or whatever it is

now — and that that affects actuarial tables. I understand the

argument; I am not certain I agree with the implications of accepting

it, but I do accept that there are legitimate points of view on both

sides of that issue. But I do not understand why, in setting rates, the

insurance companies of this province are now able to discriminate

against people who are handicapped. Do they live less long? If that's

the basis, we should say okay, let's take the proper and logical

conclusion to its next step. People who work in places like the smelter

in Trail also live less long than those who work in an office, so why

don't we allow insurance companies to discriminate against workers in

hazardous occupations? Why don't they discriminate against fallers in

the woods industry, because they live fewer years than people who work

in offices in the woods industry?

Interjection.

MR. GABELMANN: I'm talking about the discrimination factor.

Mr. Speaker, it is wrong to say, as this bill says, that mentally

and physically handicapped people can now be discriminated against by

insurance companies, or by anyone dealing with actuarial questions.

That's not to engage myself in that fundamental debate about men and

women. If we were to get involved in that debate, I suspect I would

take the view that there should be no discrimination whatsoever,

although, as I acknowledged a moment ago, there is a legitimate debate

about that point.

When the minister closes debate, I would like to ask him whether or

not he had a fair amount of lobbying on that particular point. Were

there strong representations made to him about including in the act the

opportunity to discriminate against mentally and physically handicapped

people? If you are blind or deaf, why should you pay more for your fire

insurance, leaving aside the question of life insurance? Or if you are

in a wheelchair or have some mental handicap, why should you now be

required — as you will be under this new act — to pay more for fire

insurance? I suspect that if the minister thinks this particular

question through he will recognize that the legislation should be

changed.

I recognize that we are in second reading and that this is a debate

on principle, but there are any number of principles in the bill; if

you will bear with me, Mr. Speaker, I want to deal separately with some

of those principles at this stage.

Part 1 of the bill, which includes

sections 2 through 9, lists groups which should not be discriminated

against. They include on the basis of race, colour, ancestry, place of

origin, religion, marital status, physical or mental disability, and

sex. They don't include sexual preference. I know that's an issue that

a lot of politicians like to steer away from, because it's not

particularly popular. It is not an issue I feel particularly

comfortable — politically — dealing with in logging camps in northern

Vancouver Island. I certainly feel comfortable talking about sexual

preference or sexual orientation — whatever words you want to use — and

I want to for a moment. It is not a subject that has been properly

aired in this Legislature, because there are a lot of feelings about

that subject in society. I must say I've had many years' struggle with

it myself, to try to come to grips with my own attitudes about people

whose sexual orientation may be different from mine or the so-called

norm in our society. It is not an easy subject to discuss, and it's one

that would be very convenient for me to ignore; it's one that has been

ignored, but one that I think needs some discussion. Nowhere in this

legislation, under any aspect of it, is there any protection or any

guarantees or any rights for people whose sexual preference or sexual

orientation is different from the community norm.

[11:00]

There are some in our society who would argue that such behaviour is

aberrant and wrong and unChristian and a whole variety of other labels.

But the fact remains that there has been a percentage of our society

going back all through recorded history who have chosen not to follow

the norm in terms of sexual orientation and who have chosen a lifestyle

that we now commonly call gay, homosexual or lesbian. That group in our

society is commonly thought to be about 10 percent. I don't know, but

that's a figure one hears bandied about. If that figure of 10 percent

is accurate, we're saying to one in ten British Columbians: "You no

longer have any protection in terms of job discrimination, in terms of

purchasing accommodation or renting an apartment, or in terms of

discrimination in public facilities. Someone who is openly gay can now,

as a result of this legislation, be refused employment because he is

gay. He can now be refused the right — that word is used too loosely,

and I used it too loosely there — to apply to rent accommodation,

because the landlord or the employer can say: "I don't want any gays in

my apartment," or "I don't want any gays in my workplace." That will be

legal now in B.C.

There is already enough discrimination despite a relatively strong,

"reasonable cause" provision in the existing Code. There is already

enough discrimination in our society against that group of people who

have not had their fair representation in terms of advocacy in

legislatures in this country or in any court of public opinion. I think

it's shameful that that particular provision is not included. The

minister saw fit to amend the group of classifications of people who

could not be discriminated against by properly including the mentally

and physically disabled in that list. But there were requests that two

classifications be added to that group. The other is sexual

orientation. Now politically, I guess, it's easier to go with the 90

percent of us who are heterosexual — more votes there. But that's not

what human rights is about. When it comes to human rights you take

unpopular positions, as the CCF did in the forties over the Japanese

question, while all the other political parties played their racist

games. There are countless examples of that in our history.

Mr. Speaker, I note the green light. I think I'll take advantage of the designated speaker provision.

There are countless examples akin to that sorry time in British

Columbia when the Japanese-Canadians were discriminated against so

overtly. It still goes on today with native Indians in my riding by

people who don't believe they are prejudiced. It goes on occasionally

around these buildings by people who don't believe they're prejudiced,

in comments they make about groups in our society. But I'm digressing

for a moment.

It's not politically popular, as it wasn't during the early 1940s,

but sometimes politicians of every stripe have to take positions that

are not politically popular. I guess that's why I

[ Page 4379 ]

would never describe myself as a populist, because

I don't believe that MLAs or Members of Parliament should pander to

every racist or prejudiced current that might be flowing through

society at any given time. That's why Angus McInnis and all of the rest

of them in the 1940s were right when they said the mass of the public

was wrong in confiscating Japanese fishboats and Japanese homes, and

moving them into internment camps in the interior of this province and

into Alberta.

Mr. Speaker, that same point applies today when it comes to issues

relating to sexual orientation. Probably politically in only one

jurisdiction in North America is it popular to be a gay, and that's

probably in the city of San Francisco. It sure isn't in our society. I

run considerable political risk in a macho riding like mine by even

making a decision to talk about this subject in this Legislature. But

it's time we did. I would like the minister, in his concluding remarks,

to give us a defence of why he feels that it's all right to have

declared open season on gays in British Columbia, because that's in

effect what we have done. It's a signal to the bigots in our community

that gays no longer have rights by virtue of the fact of their choice

in sexual orientation. They at least under the Code have some

protection, under that very essential and important "reasonable cause"

provision.

I could say a lot more about that, but I think having opened the

discussion in what I hope is a responsible manner, and I believe in a

manner that will allow some reasonable debate to flow, I hope that as

we begin in our process of attempting to rid our society of racism,

bigotry and prejudice, we will recognize that when it comes to the

rights of homosexuals particularly, and lesbians as well, we still have

not reached that happy day in this province where prejudice is absent.

As a result of that, there needs to be protection written into the

legislation so that the Human Rights Council, or any boards of inquiry

that may be appointed, will have an opportunity to offer to that group

in our society who are now discriminated against in so many ways an

opportunity to have their rights protected as well. The failure to

include in the legislation the phrase "sexual orientation" or a

"reasonable cause" provision, in my view, Mr. Speaker, is simply an

admission that the bigots are not just in the community, but here in

this Legislature too. Why else deny that politically unpopular group

the protection that they properly deserve?

It may well be that there has been discussion in the Legislature

before about protection for citizens who choose alternative lifestyles

in connection with their sexual preference or orientation. I'm not

aware that there has been very much. Undoubtedly there's been some; I

wouldn't presume to suggest that this is the first time we've had a

discussion about it. But I would suggest that we've never had a full,

fair, open and relaxed discussion about the issue. I think maybe that

time has come in our society. As I said at the outset, it's not an

issue that many of us feel comfortable with, me included, and it has

taken me some considerable number of years to get to the position where

I could say this. It used to be that for an MLA to stand up and talk

about the rights and needs and required legislative protection for gays

would leave that person open to charges that obviously would flow from

that. I think we're past that now — we have made some progress —

because I'm prepared to do it without feeling that that's the kind of

charge that would be laid. But, you know, it's still very difficult to

do.

I remember the day I learned that one of my best friends was gay,

and the difficulty I had in dealing with that. But I learned to deal

with it. However, there are still countless numbers in our society who

have not learned to deal with it, and who do still discriminate: some

consciously and deliberately because they believe, for moral reasons,

that it's wrong' some consciously and deliberately because they can't

handle it through their own macho needs; but many more who discriminate

unintentionally, because they don't feel comfortable with the issue.

That leads me to the aspect of this legislation, that is also

absent, which relates to intent. Under the Code, if someone felt that

they had been discriminated against, and there was reasonable evidence

to substantiate that, the person who did the discriminating had to

prove that they did not. In fact, if they did discriminate but hadn't

intended to, they still were judged to have been discriminating. That's

what human rights is all about. It deals not just with overt and

deliberate discrimination but also unintentional discrimination. The

Code protected that. But this legislation, as with Bill 27, eliminates

that provision and that concept. People will now have to prove to one

of the council members, or perhaps later to a board of inquiry, that in

fact they were discriminated against — that is, if they're in the group

who are allowed protection by this legislation. If they're not allowed

protection, they've got no rights.

There's an important concept involved in this subject. It's one that

I had hoped to be able to develop more fully, because I really did

think that the minister would allow us some more time for preparation

in this debate — but I guess that was naive on my part. There really is

some need to have a full discussion about the concept of

discrimination. Is it, in fact, something that is done deliberately,

overtly and consciously — as appears to be the intent of this

legislation — or is it, as I believe this kind of legislation has to

deal with, that unconscious racism, bigotry and prejudice, described as

discrimination, that in some ways we all are guilty of? I certainly am

guilty, in my life, of unconscious discrimination. Perhaps there is

someone in this House with a halo so well-polished that they can say

they're not, but I doubt it. This legislation doesn't deal adequately,

if at all, with the question of systemic, unintentional discrimination.

The Code did.

[11:15]

In many ways — not in every way — that's the most important

discrimination to begin to deal with, because it's that systemic

discrimination in our society that does the most damage. Some of the

obvious, overt and intentional discrimination can be ignored by a

person or a group of persons who are being discriminated against in

that way, because they can say to themselves that this small group are

bigots and not worth the attention that a response would give them. But

it's that systemic, unintentional discrimination in our society that

leads to so many situations, such as an unbelievable preponderance of

native Indians in our jail population and the ghettoization by country

of origin in jobs in this province. I lived with that, growing up in

the Okanagan. The minister sees it in Langley, I'm sure. There is

systemic, so-called unintentional discrimination rampant in our

society. This legislation does not allow for that kind of

discrimination to be dealt with.

In a most important sense, we're dealing with education. A

schoolteacher who lives in a community in which racism is rampant — we

all know examples of that — who wants to

[ Page 4380 ]

secure some information, some brochures and some

films, perhaps, or educational programs or tactics in teaching which

would normally come from the Human Rights Commission, and have come,

until last summer, from the Human Rights Commission, now has nowhere to

turn. The minister talks in generalities about an education program to

be launched by his ministry soon. If my guess is correct, I suspect

that will be an education program modelled on the one in Alberta, where

television advertisements about bad discriminatory practices will be

aired, making sure that there's full credit to the Social Credit

Minister of Labour.

But while that kind of program can be important and useful, it's not

what we're talking about when we're talking about human rights

education. We need a branch or an organization or a commission, and it

could be this council who have the resources — I'm not talking about a

lot of money; considering the seriousness of the problems, we're not

talking about very much money at all — to provide assistance, to do

videotapes perhaps, to print brochures and to develop programs for

teaching. There are communities unnamed in my riding and in most

ridings in this province where that kind of material is essential in

the schools in the earliest grades. A grade 1 or grade 2 child needs

more than a 30- or 60-second television clip preaching against bigotry

or racism or prejudice. They need far more than that. Nothing in this

legislation sets up that kind of program.

Mr. Speaker, there is a

section in the legislation, which we'll deal

with in more detail in committee, which brings in a concept which I

totally don't understand; I fail to comprehend it. In most areas of

discrimination, if you feel discriminated against, you go to the

council and you go through the process which we'll deal with

subsequently. But if you're discriminated against in payment of wages,

you have to go to court, under

section 7.

The minister frowns and grimaces and doesn't agree with me, by his

body language. Maybe I'm wrong. I've been wrong before, and I will be

delighted to be demonstrated to be wrong in this.

[Mr. Pelton in the chair.]

This is a principled issued, so I'm not getting into committee

debate here. This is a principle issue about courts versus the council.

Subsection 7(5) says: "Where an employee is paid less than the rate of

pay to which he is entitled under this section, he is entitled to

recover from his employer, by action, the difference between the amount

paid and the amount to which he is entitled...." I'm not a lawyer, but

to me "by action" means in the courts — by filing an action in the

courts. I asked some lawyers if that's what it meant, and they said:

"Yes, of course it means in the courts." The minister shakes his head.

I hope he's shaking his head because he didn't mean this to be in the

bill, not because he disagrees with me about that concept.

We've had enough legislation lately in this House pushing things

into the courts, on an already overburdened system. The other day we

had landlord-tenant relations in the courts. We've had many others. One

of the things we don't need to do is.... Let's say, for example, a

woman who discovers she has been paid less....

HON. MR. McCLELLAND: It's the same words as are in the Code.

MR. GABELMANN: It may well be the same as in the Code. I

agreed earlier with the minister that the Code needed to be amended.

It's now ten years old. No legislation is writ in stone, except, I

guess, for the Ten Commandments. The Code needed and required

amendment. We've talked about some of the other changes it required. If

the minister is arguing that this

section should be in here because it

was in the Code, then let's keep everything else that was in the Code

too.

Let's take a situation where a woman....

HON. MR. McCLELLAND: Did they use to have to go to court to recover if they were being paid discriminatory wages? They never had to go to court.

MR. GABELMANN: I'm reading what this is. Let me read this

again. Where an employee is paid less than to which he is entitled,

he's entitled to recover the difference from his employer by action. By

what kind of action?

HON. MR. McCLELLAND: Action under this act.

MR. GABELMANN: Judges dealing with this question in the

future who may want to refer to the legislative debate for

clarification of the intent of the legislation should know that the

minister has just said that "by action" in this legislation means "by

going to the council." I'm delighted to learn that. I hope that that's

what does happen. As I said, in the brief time I've had to do an

analysis of this legislation, I have checked with some lawyers about

that question. My view was agreed with by them.

Here we have a good example of the problem of debating legislation

so quickly following its introduction. It may well be that elements of

the debate are conducted on false issues because there's been a lack of

full comprehension. I acknowledge that in the course of this debate I

may well be off track on a couple of these questions simply because

there has not been the kind of time required to do a proper analysis.

I was actually pleased and surprised to hear the minister denounce

what he calls the mediation process, commonly called the conciliation

process. While in labour terminology the words are usually

interchangeable, in human rights terms I think there's a significant

difference between the terms "conciliation" and "mediation." I'm quite

surprised to hear him make a ringing defence of the elimination of the

concept of what he calls mediation and what I would call conciliation.

I think it's a clear demarcation between us. Under the Code a grievor,

or a complainant, had the opportunity, with the assistance of an

officer of the branch, to discuss with the person alleged to have

breached the Code the nature of the breach, to discuss possible

remedies, to reach an agreement, to reach a happy solution, combined

with the requirement that that kind of discrimination not occur again.

It led to learning in a way that a blanket order without discussion

does not. In this case I think we're dealing with issues that probably

are more analogous to marriage than to anything else. The idea of

mediation in a marriage is a bit repugnant, but the idea of

conciliation is not. I also think that a manager of a bar who denies a

native Indian the right to purchase a drink, and

[ Page 4381 ]

who is ordered simply not to do it again, by either

the council or a board of inquiry, will not have learned as much as he

or she might have learned through a process of discussion about the

incident and the issue. I don't find any difficulty with those kinds of

discussions or that kind of conciliation, which may well lead to a

conclusion on the part of the bar manager, in this case, that he or she

was wrong, and an understanding about why they were wrong, and

therefore the likelihood of it not happening again. I don't have the

minister's opening remarks before me, but when you have the arbitrary

conclusion of a dispute handed down without any conciliation taking

place, although discussion might — and we're walking a fine line as to

the difference between the two — you don't have that opportunity for a

better relationship between the two parties or for a fuller

understanding of the motivation and the feelings of the person who was

discriminated against.

Dealing with the council and its authority — this five-person body,

which theoretically is going to have to handle all complaints, although

there are vague references to the role of IROs and other people working

around the province in the ministry — what is going to happen is that a

complaint will find its way to the desk of one of the council members,

if they have a desk. Some of them may not be full time and paid only on

the basis of work done. The minister shakes his head, the implication

being that they are all going to be full time. You can read

section

10(3) either way, and I'm delighted to hear that the minister intends

that these five people will all be full time; you can read that into

that

section by assuming that some are in the public service and some

will be paid on a contract basis. I assume that is what the implication

is. But it also allows for a member of the council to be paid just for

the particular duties they perform, but in any event we'll see how that

develops.

[11:30]

The complaint does arrive on the desk of one of the council members,

hopefully assisted by some staff — a registrar or secretary, maybe. All

these reports have to be in writing, so I assume there will be a

secretary, although that is not clear. When it does happen, and if the

council member has not already got a full desk and is able to deal with

it quickly, he then makes an investigation to determine the facts, and

he has a variety of options, which we will come to in committee. Among

those options that the council member has, after investigating in the

same way that an IRO or a police officer would, if it were that kind of

thing, is the right to make a judgment. It's a little bit like me being

picked up by a police officer for breaking the law. The police officer

investigates the facts of the case and then sentences me to one year in

jail, or this, that or the other. When a police officer stops me for

speeding, I have the right to go to someone else to have my guilt or

innocence determined, but not under this

section of the legislation. A

council member does the investigation, and then, while he has other

options, he can nevertheless impose a settlement, in effect. That's a

concept that I have some trouble with. It's not the most important

element of the bill; I'm not suggesting that. But it's a concept that

we in our society have learned to reject, and one that I think should

be rejected in this particular legislation.

The minister took some delight in being able to say that the

sections that were criticized in Bill 27 — last year's bill — that

allowed for the immediate dismissal of frivolous or vexatious or

trivial complaints had been improved, because now they have to be

investigated first. I'm not really sure that the definitive and

categorical statements made by the minister really apply when you

actually read the legislation.

Section 13 says: "The council may decide

not to proceed with the investigation of a complaint where it appears

to the council that the complaint" — and in subsection (c) — "is

trivial, frivolous, vexatious or made in bad faith."

Then it's required to notify the complainant in writing of their

decision not to proceed. This question is perhaps debatable, based on

how one interprets "may decide not to proceed with the investigation."

There may well be an argument made there that you cannot proceed, but

you must have started an investigation before you stop proceeding. But

we all know how that can be dealt with. The investigation could well be

underway just by reading the letter of complaint. There's no

requirement that the individual complaining has the right to come and

talk to the council member doing the investigating. So I am not so sure

at all that the concerns expressed last year about Bill 27 in respect

to the dismissal of complaints are much better served by the process in

section 13 of this legislation.

During the term of government of the NDP in 1972-75, when I sat over

there, one of the debates that most frequently occurred related to the

question of appeals. Every time we brought in a bill....

Mr. Speaker, I think the member for Vancouver South would like to interrupt me for just a moment, and I'm glad to agree to that.

MR. R. FRASER: I would begin by thanking the member for North

Island for letting me interrupt his presentation. I ask leave to make

an introduction.

Leave granted.

MR. R. FRASER: In the gallery today are some library

technician students from Langara College, who are over from that great

riding of Vancouver South to not only visit our library and talk to our

great librarians, but also see how the House operates, how we think and

how we make presentations, and to take a tour of the building. I would

ask the members present to welcome them here today.

MR. GABELMANN: Dealing with the question of appeal, the word

which was so vigorously used during the time of our tenure in

government.... There's not much right of appeal in this legislation,

Mr. Speaker. Under the authority of the council to undertake an

investigation and make a determination of a complaint, the council can

order that the proceedings be discontinued. Earlier on, as I mentioned,

they could refuse to take the case. Where then does a complainant go?

There's no reference in this legislation to a procedure for a

complainant who may well feel that in making the complaint to a council

member, the council member failed to understand the nature of the

complaint, or that the council member didn't agree that it was a

legitimate complaint and ordered that it be discontinued, or didn't

take it in the first place. I suppose the complainant could make yet

another appeal to, perhaps, the chairperson of the council. Maybe the

regulations will deal with that. But there is nothing in the

legislation, and that's what counts. Nothing in the legislation that

I've discovered allows for that person to appeal.

[ Page 4382 ]

Later on, if the council refers the case to the minister for

disposition, and the minister chooses not to appoint a board of inquiry

but rather dismisses the complaint, where does the individual go to

launch an appeal? The only avenue open that I can perceive is the

political one. The complainant can go to his MLA, or he can go to the

minister and ask the minister to reconsider. That's not in the

legislation, but that's the only avenue that I can discover in this

legislation. That's not really appropriate. There will be a lot of

people, first of all, who won't know that they can go to their MLA. As

much as we think that we are well known and important in our

communities, there are still people who don't even know that they have

an MLA. It's often those kinds of people who are the ones who are

discriminated against. They may not have the language; they may not

feel confident; some people are intimidated by that process.

If they don't get good advice — they don't go to their constituency

office or to a lawyer or to a friend who is familiar with that kind of

political remedy — they've got no option. They really don't even have

the political remedy, if you read the legislation. Not that I'm saying

the political remedy is appropriate, because I don't think it is. It's

the wrong way to deal with human rights complaints. They don't have any

place to go to appeal what they think was a decision that was made,

perhaps, without all the facts; or perhaps it was made in a

discriminatory way by a council member or by a minister who may well

have some of that systemic, unintentional prejudice that I talked of

earlier.

I'd like the minister, when he wraps up discussion in second

reading, to talk about that particular, what I would describe as,

failure in the legislation. Nowhere in committee could we talk about

appeal, because there's no

section dealing with that.

I want to talk next about what you might call the penalty section,

although that's probably the wrong word to use; it's not described as

such in the

section dealing with disposition of complaints. Under the

Human Rights Code, a variety of things can happen. We talked about the

conciliation, and there are other options available. There is the

option of a financial penalty on — I was going to say the guilty party,

but that's not a word I like to use in this context — the offending

party. Under the Code there is the possibility of a transfer of money

from the offending party to the offended party. When it's an

individual, that amount can be $1,000, and $5,000 for organizations,

companies, corporations, businesses, associations, unions, or whatever.

Those figures, which are low — but appropriate, in my view, because I

don't like the financial penalty aspect of this kind of legislation

particularly, although I recognize that it needs to be there — have

been replaced with a flat $2,000. Thus an individual who is found to be

in contravention of the legislation is subject to the same financial

penalty as MacMillan Bloedel or Imperial Oil would be subject to, a

penalty of up to $2,000. And that doesn't deal with whether financial

transfers are totally appropriate in this question, but I'll leave that

issue aside. It's in the Code, it's in this bill, and there are

occasions when that makes some sense.

But there's nothing else. When you look at what else can be done,

two things can happen. The board of inquiry — and as the legislation is

written, this applies as well to a council member, who acts in effect

as a board of inquiry — can do two things to deal with the

contravention of the legislation.

Number one, they can make available to the person discriminated

against the right, the opportunity or the privilege that in the opinion

of the board was denied, contrary to the act. In other words, if you

were to rent or denied the right to go into a bar, you would, as a

result of that order, be allowed to do that. That's one thing they can

do. The only other thing they can do — and they can do this as well, or

one or the other — is compensate the person for any wages or salaries

or expenses incurred. It doesn't make clear who pays that. Presumably

it's the contravening party. But certainly it is clear that the

contravening party can also pay a penalty of up to $2,000 directly to

the offended party. That reliance on financial penalties, in my view,

is too narrow. There should be other remedies available. One of the

remedies used often under the Code was that, for example, in

discrimination that might occur in the newspapers — particularly by,

let's say, the publisher — the publisher would have to retract and

apologize in print. That's an appropriate remedy, not available under

this legislation.

[11:45]

HON. MR. McCLELLAND: It's as available as it was under the other legislation.

MR. GABELMANN: Not as I read the legislation.

HON. MR. McCLELLAND: You're reading it wrong.

MR. GABELMANN: Okay. As I said, if you only give us a day to

study it we're bound to make some mistakes. I might be wrong about

this, and I hope I am, but it seems to me that all that can happen is

that costs can be recovered if you lose any money because you were

discriminated against; you might get some money in the form of a

transfer of up to $2,000 from the guilty party; or you might have the

right that was denied to you made available. That doesn't, in my

reading, allow for a board of inquiry to say to a newspaper that it has

to run an editorial making up for the earlier discrimination. The

minister says they can, and I'd be delighted to find out where that is

in the act.

[Mr. Segarty in the chair.]

Mr. Speaker, much of the discussion of this bill needs to take place

in committee. In the few minutes before lunch I want to talk about the

concept of the independence of human rights officials. That concept

deals not only with the political independence of the council and, as I

argued earlier, the fact that it should be made accountable to the

Legislature and not to a minister, but also with field staff. Karl

Friedmann, the ombudsman in British Columbia, a man who is widely

respected by independents in the community outside of Socred circles,

argues — I didn't have this when I was making the argument earlier, and

I want to refer to it now — in the context of the independence from

government of people who investigate and make decisions about human

rights violations or alleged human rights violations:

"An argument can be made for some independence of

human rights officials from the executive arm of government to ensure

the credibility and effectiveness of human rights enforcement against

government itself when government agencies are accused of

[ Page 4383 ]

violating rights. I believe, however, that there is a more fundamental

reason for seeking independence or at least a greater degree of independence

for human rights officials from the executive arm of government.

"If we were all agreed that certain forms of

discrimination are inappropriate and offensive to a person's dignity we

would not need human rights codes or administrations."

I'm not going to read all of this. He goes on:

"I return to my earlier comments that codes of human

rights most likely exist because we do not universally practise

tolerance. It follows from that concern that the administration of

human rights codes may need to be insulated from the daily ebb and flow

of popular opinion. Such opinions are reflected by the executive arm of

government and the daily application of existing human rights

legislation to specific cases needs considerable independence from the

executive like the judge needs independence from government to produce

justice."

I didn't have this when I made that argument earlier, but Dr.

Friedmann makes essentially the same argument I was making. He goes on

later to say:

"On the assumption that the creation of human rights

codes remains firmly in the democratic political process I would argue

that the administration of the Code could and should be removed from

the political process. Hence human rights administration and

enforcement should be or become independent from the government of the

day. Total independence from all authority is probably not acceptable

and perhaps not even necessary." — I would interject that I agree —

"Ombudsmen and even judges can be removed by parliament."

So they can and so they should when appropriate. He goes on:

"The obvious model that suggests itself is a human

rights commission and administration, created by parliament

(Legislature) and responsible to parliament (Legislature) along the

lines of the auditor-general and ombudsman. Such a model ensures that

human rights commissioners are (1) functionally autonomous,

(2) external to the government of the day and (3) operationally independent

of both the legislature and the executive.

"'Functionally autonomous' signifies that the human

rights commission office is an independent organization in its own

right. The staff may be small, but the commission office is not a

dependent component of a larger organization (like the Ministry of

Labour).

"'External to the government of the day' signifies

that the commission represents the will of the parliament (Legislature)

as a whole, not just the majority part of it.

"'Operationally independent of both the Legislature

and the executive', this provision makes the important distinction

between, on the one hand, statutory establishment and legislative

selection of the commission and the commissioners, and on the other

hand, the commission's ability to operate its office without

interference from either the Legislature or the government.

Responsibility of the commission to the Legislature is maintained

through reporting, and the process of appointing and reappointing

commissioners. Dispositional powers over cases would be in the hands of

the commission who would appoint boards of inquiry or refer issues of

principle to the courts.

[Mr. Speaker in the chair.]

"Ministers would no longer play a role in this

process, thus eliminating political considerations from the enforcement

of existing human rights acts.

"The ideal human rights commission would be selected

and appointed by the Legislature or Parliament. Commissioners would

hold office during good behaviour (like judges) and commissioners would

be suspended or removed only by the Legislature (Parliament). The

commissioners would hold a substantial term of office, anywhere" — he

suggests — "from five to ten years. Parliament will directly consider

the staff and budget needs of the office and attend to any issues

brought to it by commission reports.

"Obviously" — he concludes — "these stipulations

constitute the outline of the ideal human rights commission and its

relationship to political structures. It is a model and can be modified

in certain respects. I am personally convinced that any real

institution broadly in line with this concept would produce an

effective and acceptable human rights regime."

That very effectively sums up what I believe to be a prevailing

opinion in the community: that human rights, like we do with the

ombudsman and the auditor-general, should be dealt with not by the

political arm of government but by the Legislature, giving it the

independence that that implies. I'm going to conclude my comments by

simply summing up what I think are some of the serious problems with

this legislation. The first thing is that clearly this legislation is

substantively and substantially similar to the legislation produced in

July 1983 — legislation which met with virtually unanimous disapproval

by British Columbians. I want to say again that I believe this

legislation violates the accord, the agreement, the understanding that

was reached following the community uprising of last summer and fall,

because it does not in any significant way amend Bill 27. It takes away

from fundamental human rights coverage one of the essential elements of

any legislation, which is a provision to deal with complaints where

there is reasonable cause to believe that discrimination occurs. I

spent some time talking about how that applied to sexual orientation,

but I want to make clear again that it applies also to other groups in

our society who will now not be covered by this legislation. This

includes not only people in the gay community but people whose facility

women, who as a group are no longer covered by this legislation.

The reasonable cause provision was in many ways the guts of the

Human Rights Code. The failure to include that in this legislation is

among the more important elements in this debate.

I talked at some length about the need for the council to have a

legislative mandate for public education. I disagree entirely with the

minister when he proposes that the Ministry of Labour can embark upon

an advertising program dealing

[ Page 4384 ]

with human rights. That's not what is required. We

need that too, but we also need an ability on the part of the council

to do education in a variety of ways, aside from the kind of PR things

that the minister would be inclined to do. I've talked at some length

about the fact that I don't believe the council — or the human rights

commission, as I would prefer to call it — should be accountable to a

minister. It should clearly be accountable to the Legislature.

Interestingly, the Ontario Conservative government has had some

experience with the type of legislation, not entirely the same but

substantially similar, that we're now seeing introduced here in British

Columbia, and they have rejected that approach and gone back to a model

more similar to the one that we've had in place here in British

Columbia for a decade.

In conclusion I just want to say that the bill is totally

unacceptable to this side of the House. I believe that once the groups

in the community have had an opportunity to look at it and study it and

to realize how similar it is to Bill 27, they too will express their

opposition to this legislation. I want to appeal to the minister to

recognize that if he were to do a couple of things he could begin the

process of making this legislation acceptable. He could return the

"reasonable cause" provision; he could make the council independent,

reporting to the Legislature and appointed by the Legislature, and he

could give that council the right to have its own legislated mandate

for education. If he did those three things in a proper way, he

wouldn't make the bill perfect by any means — but then no bill ever is

perfect — but he would go a long way to making the bill closer to being

acceptable to the people in this province who are so affected by

legislation such as human rights legislation.

Ms. Sanford moved adjournment of the debate.

Motion approved.

Hon. Mr. Gardom moved adjournment of the House.

Motion approved.

The House adjourned at 12 p.m.

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