Fourth Session, 41st Parliament

(2019) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Tuesday, October 22, 2019

Afternoon Sitting

Issue No. 278

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Orders of the Day

Committee of the Whole House

Bill 35 — Miscellaneous Statutes Amendment Act (No. 2),

2019 (continued)

M. de Jong

Hon. D. Eby

L. Throness

M. Lee

Hon. K. Conroy

S. Thomson

B. Stewart

P. Milobar

S. Bond

Hon. C. James

S. Cadieux

Hon. A. Dix

M. Hunt

Hon. S. Simpson

J. Sturdy

Hon. C. Trevena

N. Letnick

TUESDAY, OCTOBER 22, 2019

The House met at 1:31 p.m.

[Mr. Speaker in the chair.]

Orders of the Day

Hon. D. Eby: I call continued committee stage on the Miscellaneous Statutes Amendment

Act (No. 2), 2019.

Committee of the Whole House

BILL 35 — MISCELLANEOUS STATUTES

AMENDMENT ACT (N o . 2), 2019

(continued)

The House in Committee of the Whole (Section

B) on Bill 35; R. Chouhan in the chair.

The committee met at 1:33 p.m.

section 19 as amended (continued) .

M. de Jong: The first thing I feel obliged to do is to pass on to the Attorney

that farmers and farm families have been tracking the debate and are

grateful and appreciative of the steps that have been taken and the

willingness of the Attorney, on behalf of the government, to not just

consider but endorse an amendment to the legislation that profiles and

highlights the challenge that some of them are facing and that all of

them are threatened by.

In the family whose example I used, Excelsior Farm, Ray and his

family have been watching and continue to watch. I should say I’ve been

hesitant to use their last name. It’s a testament to the threat that

they feel under that I am hesitant to use their last name, because some

of these groups, unfortunately, take that as a licence to further

threaten and try to intimidate. Suffice it to say that they and other

farm families are gratified for the step we have taken today.

[1:35 p.m.]

What follows…. I just wanted to take a few moments to explore,

with the Attorney, the other part of the question. That is: having

created this tool — or enhanced it or amplified its appearance, whatever

the correct description might be — what is the best way to utilize it?

Are there any other tools? Short question.

Then I think I heard the Attorney General confirm his willingness

to do this in the days ahead, but it’s worth putting on the record. Will

the Attorney General commit to providing confirmation of the number of

prosecutions that have taken place under the provisions of the Trespass

Act?

Hon. D. Eby: Well, I’ll certainly confirm to use best efforts to figure out how

the act has been used and any obstacles that may stand in the way. There

may be a challenge in providing the exact number that the member is

looking for. Often statistics gathered by the prosecution service don’t

have context, and the statistics around Criminal Code offences versus

provincial offences are gathered differently.

I’ve told the member previously. I’ll tell him again. I’ll do my

best to get the information. What I understand that everybody in the

House has a shared interest in is understanding. I had a good

conversation with the Minister of Agriculture, who’s also very engaged

on this, obviously. What we’re all interested in is knowing if there’s a

barrier to using the legislation as it stands. What is it, and can we

address it? Certainly, he has my commitment to best efforts around that,

and I know he has the commitments of the Agriculture Minister as

well.

M. de Jong: To the Attorney, the next question is somewhat more philosophical

in nature. It does relate to his role as the Attorney General. Does he

see this as an appropriate tool? I’m not asking him to comment on what

has or hasn’t happened in the past. And I don’t say that as a

criticism.

But having learned and heard from me and some of my colleagues

about the activities, the attacks, that farm families have encountered

or been exposed to, is the Trespass Act, in the Attorney’s mind, an

appropriate tool for dealing with people and agencies that believe it’s

acceptable to invade a farmer’s private property to advance their views

on food consumption?

Hon. D. Eby: We’re getting well away from the bill and the amendment. But I

will, because I do understand the importance of the issue for the member

and for his constituents — and if they’re following along at

home.

The bill is one tool — the Trespass Act, the law, which did cover

previously, before the amendment, and now after the proposed amendment

will even more explicitly cover farm land and buildings in the same way

it covers other land and buildings throughout the province — available

to law enforcement.

The members have described a number of different scenarios, some

of which may or may not be the subject of law enforcement investigation

and prosecutions. I don’t know, so I’ll speak generally.

When you’re talking about threats or breaking and entering or

destruction of property, mischief, I believe the Criminal Code is an

appropriate tool for police to use, because it brings with it a couple

of pieces, one of which is, obviously, the criminal record, potentially,

for those who are involved, as well as the sorts of tools of the

Criminal Code — peace bonds and other tools that courts can use — to

enforce certain standards. It doesn’t require the family themselves to

necessarily bring it forward. The Crown does that on behalf of the

public. So the Criminal Code provides a number of helpful tools in

scenarios like those that the member has described taking place in

British Columbia.

The Trespass Act is another tool available to law enforcement.

Police discretion is important, and how they decide to use it. Whether

they use this or the Criminal Code, the Criminal Code trespass

provisions are more limited than the Trespass Act. There’s trespass at

night. There’s assault by trespass, but there’s not a trespass Criminal

Code simply free­standing. Just trespassing — that’s a criminal

offence. This Trespass Act does close some of that gap in the Criminal

Code with a provincial offence.

[1:40 p.m.]

Police have to look at the circumstances. Did it happen at night?

Was there a physical resistance as part of the trespass when the person

was asked to leave? These kinds of things.

It’s a decision by law enforcement in the moment. What I think all

of us want to do is identify whether law enforcement feels that there

are other issues or tools that are missing that would prevent them from

taking action using either the Criminal Code or the provincial Trespass

Act. We’re very reliant, on the ground, on experienced prosecutors in

law enforcement, which is why we’ve reached out to both prosecutors and

to the chiefs of police to ask them what they’ve seen on the

ground.

M. de Jong: I don’t want the Attorney to be concerned that I’m trying to

unnecessarily prolong this. I’m coming to the end of the questions that

I have for him. I have found his answers to be helpful. I think people

watching and listening will have found them to be helpful.

Some of the people watching may not be aware — in fact, I don’t

think many people are necessarily aware — of the unique role that the

Attorney General plays as the chief legal officer for the province and

may be under the mistaken belief that the Attorney is directly involved

in making decisions around whether or not to move forward with a

prosecution or direct that prosecution. Of course, that’s not the case.

The Attorney has pointed that out. I’m standing beside a former Attorney

General, and sat in that seat for a while myself.

Oppositions aren’t always particularly generous when criticizing

the government about wanting to acknowledge that Attorneys General don’t

directly intervene in individual prosecutions. They do, however, and are

entitled to, make their views known to the prosecution service around

the use of legal tools in a very general way. There are examples of

that. There are examples of Attorneys General in the past indicating,

setting out expectations around a particular class of offence that may

be prevalent and making their views known to the prosecution

service.

All that is by way of

preamble to: in the time he has had to think

about this and consider the matter, and based on the information he has,

is the Attorney General prepared…? What is he prepared to do, going

forward, to ensure that those agencies that he has mentioned, the police

and the prosecution service, are deploying the tools? We’ve just created

or amended one of those tools here today. Is he prepared to…?

He’s mentioned that he’s reached out. Is the Attorney prepared to

provide some manner of direction in a very general way — not in a

case-specific way but in a very general way — about how he and the

government view this situation and these attacks that are taking place

on farmers and farm families?

Hon. D. Eby: If I had any reason to believe that our prosecutors or police

didn’t understand the seriousness of situations like those — without

commenting on a specific case because I don’t know exactly what’s going

on with that case — situations of allegations of threats, of harm — of

harm to economic interests, breaking and entering, threats to families —

I would certainly issue direction to that effect. But I have every

confidence in our Crown prosecutors, in our police, that they, like all

British Columbians, are proud of our farm families and want them to feel

safe in their homes, in their farms and in their work — all British

Columbians, in their workplaces, to feel safe — and to have that

protection of the law.

I don’t worry about a lack of compassion, understanding or concern

on the part of either Crown or police. But I do worry that sometimes

there is an issue with the law. A police officer will identify that when

they go to try to use a law that they think they can use, and then they

find out that there’s an issue, or a prosecutor will identify it when a

case comes up from police for consideration. That may not always make

its way up for amendment or for consideration by government, which is

why we’ve reached out to the chiefs, why we’ve reached out to

prosecutors.

[1:45 p.m.]

It’s to say: is there an issue here? Is there a tool that’s

missing that you feel that you would need to address situations like

that? We’ll wait to hear from them about their best advice on that. I

have confidence they’ll understand the importance of that.

M. de Jong: I think this will be my last submission to the committee and to

the query of the Attorney General. He has heard over the course of the

discussion yesterday and today about the situations that have arisen and

the activities that have arisen here in B.C. and in other

jurisdictions.

In those other jurisdictions, governments have responded by

amending legislation, particularly, by increasing the sanctions that are

applicable to those who breach the provisions of the law. I and we

didn’t advance, at this stage, amendments relating to the penalty

section, because, quite frankly, it didn’t fit within the confines of

the specific amendment that was on the floor of the House, though we

believe that that is appropriate.

My last question for the Attorney General is: is he prepared to

consider, at some future time, increasing the penalties that would be

applicable in cases where someone or an agency is found to have violated

the provisions of the Trespass Act, whether it is

section 2 or

section

6? Is he prepared to consider strengthening or enhancing the penalties

that would be applicable to someone or an agency found to have violated

this act?

Hon. D. Eby: Just given that this is not the specific section, as the member

has rightly noted, that’s in front of the House, what I’ve committed to

the member, and I’ll commit it again, is to follow up with law

enforcement and with Crown.

Is there an issue around, among other things, the penalties

available under the act which include the ability to apply to court for

compensation? Is there an issue there that should be

addressed?

We’re going to do that work, and I hope that can bring us to

moving forward with the remainder of our work for the day and a shared

agreement that this is an ongoing discussion and concern for both

government and, apparently, the opposition as well.

L. Throness: I just wanted to thank the minister on behalf of my constituents,

as well, for his willingness to be flexible. The member for Abbotsford

West brought forward a very limited amendment, and we appreciate the

minister re­sponding overnight. That was very rapid.

There are more specific and targeted things that could be done

that require more consideration and study, and we hope that, as we bring

those forward, the minister will be amenable to further

changes.

Section 19 as amended approved.

section 20.

M. Lee: Just wanted to ask, in terms of

section 20, whether there’s been

an assessment as to…. Given that sub 20(2) has a retroactive effect in

terms of what has been added under

section 3(1)(

c) of this act, has

there been an assessment as to the impact of this retroactive nature of

this particular section?

[1:50 p.m.]

Hon. D. Eby: This is

part 2 of a two-part amendment around the Family

Maintenance Enforcement Act and the ability of the director to enforce

arbitration awards. The first part, which we’ve already passed, was

intended to make it explicitly clear that an arbitration award could be

enforced by the director of the Family Maintenance Enforcement

Act.

Already, under the older act, arbitration awards were included in

the definition of “maintenance order.” There were actually 12

arbitration awards — from that time in 2015 when it was added to the

definition — that were actually enforced through the Family Maintenance

Enforcement Act, everybody operating under the assumption, which we

believe is correct, that there was jurisdiction and authority to do

that.

The council identified that we could be clearer that arbitration

awards are explicitly included. So to reflect that intention that was

there in 2015 and to make it really clear, the amendment that we’ve

passed already was made.

The concern is: in making that amendment, does that mean that the

12 individuals that have had arbitration awards enforced against them

could come back and say: “Well, there was no authority to do that”? So

this transitional provision says: “Yes, there was authority. It was the

original intention of the Legislature. We believe that that was the

impact of the act.”

All we’ve done is make it clearer that these arbitration awards

are enforceable under the Family Maintenance Enforcement Act, and this

transition provision makes it explicit that the authority existed then —

as it did — in the act, in the intent of the Legislature and now in the

transitional provision.

M. Lee: Thank you for that response. In the case of those 11 individuals,

has there been any level of enforcement against those individuals in the

interim period?

Hon. D. Eby: I can advise the member that it’s our understanding that these

were registered with the program and were therefore subject to some

level of enforcement. I don’t have information for the member about what

the enforcement actions taken on those 12 awards was.

M. Lee: In terms of the actual wording of

section 20(2), is this language

that refers to how retroactivity should be treated standard wording for

how we impose language around retroactive effect in B.C.

statutes?

Hon. D. Eby: I’m advised that this is the standardized legislative language to

apply retroactively.

Section 20 approved.

section 21.

L. Throness: I want to ask some questions of the minister, but I would like to

preface my questions with a few short remarks. During estimates, on

March 5 of this year, the minister made quite a strong statement that I

want to quote. This is what she said:

“The powers, duties and functions conferred on a director under the

Child, Family and Community Service Act, the CFCSA, are among the most

powerful authorities in society — for example, the authority to

investigate a child’s need for protection and the authority to remove a

child from a parent’s care. With these powers comes a duty of care that

a director owes to the people served, many of whom include some of

society’s most vulnerable members.”

I agree with that, and I would point out that the minister is

acting through her directors and that she bears ultimate responsibility

for that duty of care.

[1:55 p.m.]

The amendment before us seeks to change

section 92.1 of the Child,

Family and Community Service Act. It would allow the director to expand

the scope of agreements that he or she may enter into with a First

Nation, the Nisg̱a’a Nation, a treaty

First Nation or an Indigenous community. The very idea that we would

expand the scope of agreements that can be made with various Indigenous

groups implies that we might retract the scope of the ministry as we

hand over more responsibility to Indigenous peoples.

I don’t have a problem with this in principle. I think it can be a

very positive thing, and I’m happy to vote for this

section of the bill.

But there is an issue in the act, called its guiding principles, which

tasks the minister with a number of areas of responsibility. I want to

make sure that we clarify these areas of responsibility for the

minister.

The main guiding principle of the guiding principles

section of

the act says that “the safety and well-being of children are the

paramount considerations” of the minister. I presume that she can’t

delegate those guiding principles to any other person or body and,

indeed, would not want to. Certainly, there’s nothing in the bill to

suggest that.

When considering the best interests of the child, the minister has

to take into account: the child’s physical safety; physical and

emotional needs; continuity of care; quality of relationship; cultural,

racial, linguistic and religious heritage; the views of the child; and

issues of delay, which is a long list of responsibilities.

In respect of the minister’s main responsibility for the safety

and well-being of the child and all of its sub-elements, I have some

questions about how the new power to make agreements will work in

practice.

The first question is…. When the minister, through her director,

makes an agreement with a First Nation, they will obviously do so

because they’re concerned for the safety and well-being of the child.

Once that child is placed under an expanded agreement that may involve

guardianship, what will be the minister’s continuing role with respect

to that child? Will she have any more legal responsibility?

Hon. K. Conroy: I want to thank the member for the questions.

I want to introduce the staff that are with me. I have Alex

Scheiber, who’s the deputy director of child welfare, and Francesca

Wheler, who’s the executive director of child welfare policy.

Just to clarify with the member that when the ministry enters into

an agreement with the First Nations, it doesn’t pass on the ultimate

responsibility of the child. The ministry, or the director, maintains

those responsibilities. It’s a way of ensuring that the First Nations

Indigenous communities have more say into what happens with the

child.

L. Throness: The idea of guardianship, though, suggests that the care and the

responsibility for the welfare of the child will pass to the guardian.

The ministry is the guardian, now, of the child in care. Once it makes

an expanded agreement and that agreement involves guardianship, does

that not transfer responsibility?

Hon. K. Conroy: Just to clarify, the answer is no. If you read the legislation, it

says, “planning for the needs of the Indigenous children of the First

Nation, Nisg̱a’a Nation, treaty First

Nation or Indigenous community who are in the custody of the director”

or care or guardianship…. So it carries on.

[2:00 p.m.]

L. Throness: I assume, then, that the ministry staff will be involved in

monitoring, on an ongoing basis, the progress of that child — for

example, their ongoing physical and emotional well-being and the quality

of the relationship — in order to ensure the child’s

well-being?

Hon. K. Conroy: Yes.

Section 21 approved

section 22.

S. Thomson: Appreciate the opportunity to direct some questions on this

important part of the Miscellaneous Statutes Amendment Act. I’ll have

some questions. My colleague the member for Kelowna West will as well,

and there may be others as we go through some of the

questions.

Maybe just to get things started, then, could the minister

provide, for the record and for the House, the rationale in the

background and the objectives of this amendment that is before

us?

Hon. D. Eby: The member will note that there are two sets of amendments in the

section here. For the first, which is a minor amendment, it ensures that

the provision contains wording that is consistent with the new wording

proposed in sections (p.1) and (p.2). The issue is that the wording of

the current

section is potentially confusing and that it conflates the

concepts of disclosure with the concepts of storage and access. The new

proposed wording uses the phrase “results in” to attempt to resolve this

potential for confusion. The other minor change to this

section is to

remove redundant wording.

Now, there’s a more substantive part to this which authorizes

public bodies to disclose personal information inside and outside of

Canada for temporary processing. For this amendment, it will empower

ministries and non-ministry public bodies to choose tools and services

that provide best overall value to citizens and offer the most effective

security protections.

Currently the B.C. public sector is significantly inhibited in its

ability to use common technology, which is impacting the ability of

public bodies to provide services to citizens. The disclosure of

personal information for temporary processing is crucial to enable the

B.C. public sector to use common technology, such as email and other

office productivity tools. No other jurisdiction in Canada is restricted

from using these technologies.

S. Thomson: Thank you to the minister for that answer.

I guess, for greater clarity, could the minister indicate what gap

is being addressed with this amendment? Is this amendment covering a

situation and a practice that currently exists and is being undertaken?

Are these amendments being brought forward to address that — in other

words, a practice that is currently happening; or is it to address a gap

in terms of providing services?

[2:05 p.m.]

Hon. D. Eby: If the member is asking if these are in response to a privacy

breach, they are not. This has been an ongoing discussion since I was in

opposition on the committee around the act. We had a very good

discussion about how we handle the processing of information that may

cross international borders for automatic processing by servers before

returning back to Canada. It’s been an ongoing discussion.

The concern is that the restriction prevents the public service

and non-ministry public bodies and ministries from choosing tools and

services that Canadians take for granted as part of our electronic life

that provide effective security protections for British Columbians and

also value to British Columbians. The component of some of these

services is that the disclosure of personal information for temporary

processing is part of the service.

We look across Canada. We’re the only province that restricts

that. The other provinces in Canada appear to have been able to offer

both security and value to citizens with these services. That is why

it’s in front of the House here today.

S. Thomson: To the minister: thank you for that answer.

Can the minister confirm that, in these amendments that are before

us, there is no provision in those amendments for the storage of data

outside of British Columbia or Canada — that this simply refers to the

processing disclosure that may happen through that process, but this

does not at all include storage of data?

Hon. D. Eby: The proposed amendment specifically excludes the storage of

personal information that is not metadata, which is the data that the

computer uses to process the information itself.

So in

section (p.1), “if the disclosure (

i) is necessary for the

processing of information” is the first test, then “if that processing

does not…(

B) result in the storage of personal information, other than

personal information that is metadata, outside Canada” then it goes on

to set out another test.

You have to meet all these tests in order for it to be allowed, so

it cannot result in the storage of personal information other than

personal information that is metadata. So to the member’s question, that

is part of the proposed amendment here.

S. Thomson: Could the minister provide for information, with this amendment

that’s coming forward, an assessment or a bit of an idea or any data or

information on the amount of activity that takes place in this realm —

what this amendment is providing for in terms of the scope and scale of

this activity that will now, as you point out, provide opportunities for

increased service and increased opportunities? Can you provide any

information in terms of the scope, the demand, the need for this and the

use of this?

[2:10 p.m.]

Hon. D. Eby: There are some strict restrictions, and some stakeholders have

argued too strict, around the ability to have information processed

outside of Canada in this amendment. We can’t quantify for the member,

although I would like to, how much of this activity we’re talking

about.

What I can advise him is that personal information could be

disclosed only for temporary processing, which is done by machines — it

takes a few milliseconds for the servers to do this — and only in a

situation where the personal information will not be accessed by a

person and only where it won’t be stored outside of Canada, except in

the situation of metadata, which we have already discussed.

The change will, we hope, allow for the use of Canadian-based

cloud applications, but it will not allow for the use of all cloud-based

technologies that could be available to public bodies. They have to meet

the requirements of these amendments. So it will expand the choices

available to ministries, non-government public bodies, but it doesn’t

open it up to everything that might be available to public bodies in

other jurisdictions.

B. Stewart: Last year during estimates debate, a fair amount of time was spent

on the new speculation and vacancy tax in terms of the data that was

being collected for the use of government in implementing that

particular taxation model. A lot of concerns were raised by citizens of

British Columbia, both prior to and then during the declaration period.

Subsequently to that, there are some people that I know that still

refuse to comply with the government’s request for information. I’d like

to ask the minister if this legislation amendment is in any way in

response to those concerns.

Hon. D. Eby: I’m advised this is completely unrelated to the speculation and

vacancy tax.

B. Stewart: Well, okay. During that discussion with the Minister of Finance….

We had a lot of dialogue with both the Minister of Finance and the

Minister of Citizens’ Services responsible for this act, freedom of

information and privacy protection. During the discussion and

debate….

A company headquartered in Colorado had a data breach in 2017 with

some data that was being used in Detroit on property tax or employment

information. This company is the contractor for the Ministry of Finance,

or subcontracted through the Ministry of Citizens’ Services. That

particular company — obviously, its track record speaks for itself, in

the sense that there is data that was breached for 1.9 million

users.

I guess the question we have is: are there concerns that are going

to be protected for British Columbians? Even though, as the minister

described, a split-second transaction, updates, all of the things that

are listed in the Miscellaneous Statutes Amendment Act here…. I guess

the question we’re really wondering is, is that this information…. Are

there any of the processes in here that are being done outside of the

country, or is it just the platform that Fast Enterprises has

developed?

Hon. D. Eby: I advised the member that this is totally unrelated to the

speculation and vacancy tax. That’s the advice that I’m receiving here,

and I will repeat that for him. The amendments don’t change data

residency requirements for British Columbia. This is for processing as

part of an application outside of Canada. I’m not sure that I can

provide him with any more clarity than that.

[2:15 p.m.]

B. Stewart: My point is not about the speculation and vacancy tax. It’s about

the software that this particular company has been employed or

contracted to produce for the Ministry of Finance to track the data.

They already have a record of having a serious breach within their own

country.

The question really is that British Columbians want to know that

with 1.6 million records that are stored on this platform…. We want to

make certain. That number could grow as high as over three million

records. What we want to know is the fact that the software and the

company are being properly restricted in terms of making certain that

the data is protected and that there is no data transmission in order to

process those records in the United States.

Hon. D. Eby: I’m advised that the procurement of software related to the

speculation and vacancy tax was undertaken before this amendment and was

compliant with the law as it stood in British Columbia then and as it

stands now, until this amendment is passed. I’m not sure if that’s

sufficient to address the member’s concern.

B. Stewart: I appreciate that rules do change and that the situation is that

this contractual arrangement is to have Fast Enterprises do this

software development for the Ministry of Finance. I guess, as a British

Columbian, and people that have been reluctant to provide information….

There is this relationship between the U.S. PATRIOT Act and data. The

U.S. PATRIOT Act…. I think that it’s well documented that there are

companies that work and specialize in that here in Canada, and clearly,

companies that are U.S.-based can be ordered to give up information if

the U.S. government deems that under the PATRIOT Act.

I guess in terms of the concerns about that, we want to make

certain that there is no data or information that would compromise

privacy of British Columbians, either through this software or other

pieces of software that are being used in government.

Hon. D. Eby: Maybe the member wasn’t here, but when the B.C. Liberals were in

government, they entered into contracts with any number of American

computer and software companies. The PATRIOT Act was existing then, just

as it exists now. Nothing has changed since we formed government. We go

through a procurement process which is compliant with B.C.’s strict data

residency requirements, just as we expect the previous administration

should have done.

Nothing has changed. The member can be reassured that the

procurement of the software for the speculation and vacancy tax was done

in compliance with the law as it stands today, before this amendment. It

is unrelated to this amendment, to the best advice that I’m receiving. I

don’t know. You can ask the same question a number of times, but the

answer will be, unsurprisingly, the same.

S. Thomson: I think it’s fair to say that on both sides of the House here, we

all support the need for the strongest possible protection of personal

and private information. All disclosure and storage disclosure and any

exceptions to that should be strongly protected and limited,

particularly as we see the increases in technology and cloud technology,

as the minister referenced.

With respect to these amendments that are being brought forward

here, was this an issue that was raised and suggested by the Privacy

Commissioner as something that should be addressed?

[2:20 p.m.]

Hon. D. Eby: I don’t wish to misrepresent the commissioner’s position, but I

think it’s safe to say that the commissioner has some concerns about

this provision and allowing personal data to be processed outside of

Canada.

I’ll also say that there are a number of stakeholders — UBC,

Vancouver Coastal Health — that are very concerned that this provision

does not go nearly far enough to allow them to be able to use

cutting-edge technology tools to assist with health care, in Vancouver

Coastal Health’s situation and, from the University of British

Columbia’s perspective, to assist with research and technology at that

university. I would imagine it would be a concern shared with other

post-secondary institutions that do that type of work and other health

authorities.

We’re trying to strike, as best as possible, a balance. So this

amendment does incorporate a number of protections. The data can’t be

stored. It can only be for processing. Only metadata can be maintained

outside of Canada. Humans can’t be involved; it has to be machines doing

the processing. So those safeguards are in place.

Our hope is that that opens up some of the tools to concerned

stakeholders, while respecting the very valid concerns that have been

raised by the Privacy Commissioner around opening this door to allowing

processing of data outside of Canada.

S. Thomson: I take it from that answer that this is not a step that has been

advocated for or requested by the Privacy Commissioner in terms of

opening this up. Was a privacy impact statement done in the preparation

of the legislation?

Hon. D. Eby: I’m advised that, yes, it was completed.

S. Thomson: Was the Office of the Information and Pri­vacy Commissioner

consulted on that privacy impact statement?

Hon. D. Eby: The commissioner was consulted on the legislation

itself.

S. Thomson: Would the minister be prepared to provide for the House a copy of

the privacy impact statement and the consultation that was carried out

with the Office of the Information and Privacy Commissioner in this

process? And the nature of that consultation — was it around the

specifics of the legislation? Was it around the principle? What was the

level of consultation, and what was the level of the privacy impact

statement that was done?

Hon. D. Eby: I’m advised there’s no difficulty with sharing that privacy impact

assessment with the member. I can also advise that in terms of the

correspondence…. And I apologize to the member. From the correspondence

that I received from the Privacy Commissioner, I recall — but I’d have

to have a look at the letter — the commissioner saying that he, as is

his practice, was sharing it with the official opposition and the critic

for the position. So that may not have made its way through the

channels. I can ask staff to try to find that letter, as well, if that’s

helpful for the member.

S. Thomson: I think the letter that the minister is referring to is the letter

that we’ve received a copy of. We do have a copy of it, and I know it

went to the Minister of Citizens’ Services and,

presumably, to the acting Minister of Citizens’ Services and to the

Third Party and a number of deputy ministers as well. That letter came

after the introduction of the legislation, so that doesn’t confirm that

there was consultation with the Office of the Information and Privacy

Commissioner.

[2:25 p.m.]

In fact, it more leads to the concern that the legislation was

drafted and brought forward prior to any consultation with the Office of

the Privacy Commissioner. You said there was a privacy impact statement

done. The question was: was that done internally within the ministry and

not in a process of consultation?

I think the question that we have, given the concerns that have

been raised by the commissioner, is that it appears — and maybe the

minister can confirm this — that that consultation…. It would really

raise the question of whether that consultation took place prior to the

introduction of the legislation or during the drafting and the

development of this legislation. Significant concerns have been raised,

which we would have thought would have been taken into consideration in

bringing the legislation forward, and having to come in after the fact

leads us to the concern that that step wasn’t taken.

Hon. D. Eby: I can advise the member that the advice I have is that the

commissioner was consulted on two separate occasions prior to the

tabling of the legislation in the House. The commissioner can’t comment

on legislation before it’s tabled, so that’s why the member saw the

comment come out after it was tabled. It doesn’t mean that the

commissioner wasn’t consulted before or that the commissioner’s concerns

weren’t considered very carefully.

The commissioner has a really important job of flagging for

government privacy concerns that government should be aware of and also

flagging those concerns for the opposition. I’m glad that the opposition

got a copy of that letter so that they could ask questions about

this.

We do have a responsibility in government to balance different

interests, one of which is privacy and one of which is the concerns of

very important stakeholders in our community that come forward and say:

“Look, we’re barred from using a lot of technologies that would improve

people’s health care, or we’re barred from using a lot of technologies

that would assist us in doing research, because of these restrictions.”

So it’s a challenge to balance these things, and the conversation is

ongoing about how our legislation both protects the privacy of British

Columbians and responds to a changing technological landscape and the

requirements of various actors.

The commissioner has rightly, as is part of the office, drawn

concerns to the attention of the opposition and the attention of

government — and publicly, following the introduction of the bill. I

definitely appreciate the commissioner’s efforts in doing so and in

ensuring government is informed on that front.

S. Thomson: I appreciate the commitment of the minister to provide us with a

copy of the privacy impact statement that was done in preparation. I

presume that that privacy impact statement would show the consultation

that took place with the office and confirm the point that the minister

made that that consultation did take place.

We addressed some of this issue in estimates and things with the

former Minister of Citizens’ Services during that process around a

privacy impact statement. This was in relation to another issue, but it

was very clear from her comments that…. This is from Hansard ,

the response in estimates. “The Ministry of Finance did a privacy impact

statement, as is required. It was reviewed by our senior staff. We are

satisfied. It meets all the requirements of FOIPPA. We also reviewed

with the Privacy Commissioner’s office, and as clarification, the

oversight party is actually the Privacy Commissioner.” So again,

pointing out clearly the important role that the Privacy Commissioner

has in this process.

I think it’s still, on this side of the House, a concern and a

surprise to us, in a sense, that the Privacy Commissioner has had to

provide that commentary, following introduction of the legislation, on

something which, as the former minister pointed out, has the

oversight.

[2:30 p.m.]

If consultation had taken place with the office and with the

Privacy Commissioner and serious concerns raised, why do we see him

having to state those concerns now? We would have thought that some of

those concerns that he raised…. We’ll be talking about some of those

specific concerns in some further questions. Why aren’t they

incorporated in the existing legislation?

As the commissioner pointed out in his response, the objective is

laudable and supportable. He’s not opposed to what is being done here.

As well, we support the direction of the use of this technology as well,

but we also want to make sure — and we have a responsibility to make

sure — that the strongest and strictest conditions are in place for the

protection of citizens’ personal information and the privacy of that

information. He has raised some concerns that the legislation that has

been tabled doesn’t quite do that and opens up some risks to that

information.

We would have thought that those risks would have been addressed

earlier if a full consultation had taken place during the privacy impact

assessment process. So we’ll need to look at the privacy impact

statement to see if that took place or not, whether those concerns were

raised then, during the statement. We’ll look forward to receiving a

copy of that impact statement.

[J. Isaacs in the chair.]

Again, maybe the question I would direct to the minister, then,

is: if those concerns were raised during the consultation process while

the principles of the legislation were developed, and in consultation

with his office, were those concerns raised and dismissed? Were they

not…? Did the government bring this legislation forward, knowing those

concerns and having had those concerns addressed during that privacy

impact assessment, and move forward anyway, despite the concerns that

were raised by the Privacy Commissioner?

Hon. D. Eby: I don’t feel comfortable speaking on behalf of the Privacy

Commissioner about what concerns were or were not raised during the

engagement with government. What I can advise the member is that on

October 9, a letter was sent to government — it went to the opposition

and was posted on the Privacy Commissioner’s website — raising concerns,

saying: “Here’s what I think government should have done. I don’t like

this

section as much as I could. I support the overall goal.”

This is taken really seriously. When the commissioner reaches out

like this, this is considered by staff. It’s considered by government as

part of the ongoing dialogue between us, the Privacy Commissioner,

industry, Advanced Education and government agencies as we try to find

our way through a challenging field, which is the question of privacy

and technology.

There’s a spectrum here. On one end of the spectrum is:

“Absolutely no data, under any circumstances, ever crosses a Canadian

border.” On the other end of the spectrum is: “There is no border with

respect to data.” For many of the applications that British Columbians

use every day — Facebook, Instagram, Snapchat, Gmail, you name it — that

data goes across borders. It’s stored all over the place, and there are

no controls in relation to that. For government, we’re on the opposite

end of the spectrum, where only under the most rigorous and strict

restrictions, proposed under this amendment, could you even move data

for temporary processing across the border.

We’re trying to find that balance. It’s not like there’s the

Privacy Commissioner’s perspective, and then there are no other

perspectives. It’s a really important, valued perspective — a necessary

perspective that we support and fund because it’s critically important

that that voice be part of the discussion, a voice focused on privacy

for British Columbians. But there are other voices in the discussion.

Those include agencies and post-secondary institutions that say: “These

restrictions are totally out of whack with international norms, and we

need more space to do this work.”

For Coastal Health — remember when they presented to our committee

about sepsis — they said that it’s a matter of life and death. This

would improve our ability to detect and prevent sepsis. There are ways

forward through these dialogues, and that is what we try to

do.

[2:35 p.m.]

The amendment that’s in front of the House, I will say, in my

opinion, is a modest one: temporary processing, no human contact, no

storage of data and enabling the use of technology tools that Canadians

would assume a government would have access to, because they bring the

twin benefits of cost-effectiveness and security of data for British

Columbians.

You don’t need to go deep into the consultation or engagement with

the Privacy Commissioner. There’s a public letter here that outlines

concerns that are part of the discussion.

I hope the member understands now a little bit more about the

picture of the considerations that go into an amendment like this and

the assessment and the decision of government to bring it

forward.

S. Thomson: I know and appreciate the fact that the minister says that he

doesn’t want to speak and can’t speak for the Privacy Commissioner. But

the question we’re asking is whether or not the concerns that the

Privacy Commissioner has had to bring forward, post the introduction of

the legislation — significant concerns, in our view, and also concerns

that, in our view, don’t preclude the advancement of the technology and

the use of it…. He’s simply looking to make sure that the conditions and

the wording in the legislation is as strict as possible in order to

protect and not create a threat to individual citizens’

privacy.

The question we’re asking is: were those concerns raised in the

consultation process during the development of the legislation, prior to

the introduction? If so, were they acknowledged? Were they recognized

but not included in the legislation as you moved it forward, given the

comments you made around wanting to try to open up the

opportunity?

The Privacy Commissioner’s view is that you may have opened up the

opportunity a little bit too vague in some areas and with a little bit

too much risk in some areas. Were those concerns raised during the

consultation process with his office and during the privacy impact

assessment work in developing the legislation?

Hon. D. Eby: I can tell the member that at a minimum, they were raised on

October 9, 2019, in a public letter. They’ve been considered by

government, and the amendment is in front of the House today, which

includes government’s consideration of the concerns raised by the

Privacy Commissioner’s letter.

I definitely thanked the commissioner for the letter and the

comments on the wording. We’ll be responding to the commissioner’s

letter. We will continue to have an ongoing dialogue with the

commissioner and other stakeholders on this really important issue of

technology and privacy.

S. Thomson: Agreed. The concerns have been brought forward in the letter. That

is, post the introduction of the legislation, he’s had to take the step

of formally advising of the concerns, as is noted in his letter, his

practice of providing the information to both the official opposition

and the Third Party.

I still go back to the point that we are seeking the clarification

or the answer on. Were those concerns specifically raised during the

process of consultation with the Privacy Commissioner’s office prior to

and during the development of the legislation?

I would think that if the answer to that is: “Yes, those concerns

were raised. We decided not to take those concerns in, in drafting the

legislation and bringing it forward….” That’s one answer. The other

answer, maybe, is that the depth and level of consultation with his

office — and maybe that’s what we’ll see through the privacy impact

statement — didn’t have that depth of conversation in developing the

legislation with his office, and he’s now had to put those concerns on

record.

[2:40 p.m.]

Again, the minister says: “We’ve got the concerns that came on

October 9.” That’s just a couple of days after the legislation was

introduced. So he’s had to take that extra­ordinary step of doing

that.

The question we’re really asking is: were those concerns raised

and noted during the privacy impact assessment process and decided not

to take those concerns into consideration — or not?

I think that’s really the question that we’re getting at, because

it seems a bit extraordinary to us that he has had to come in and raise

these concerns after the fact. We would have thought, given the

important role of the Privacy Commissioner, that he would have made it

clear beforehand that those kinds of concerns would have been addressed,

as we said. He supports the objectives, and so do we, but has raised

legitimate concerns about whether the protections are actually there

while you move into this new technology.

Hon. D. Eby: In the letter that the member received from the Privacy

Commissioner, the commissioner writes: “Consistent with our

long-standing practice when commenting on a bill tabled in the

Legislative Assembly, I’m providing a copy of this letter to opposition

critics through your ministries in addition to your

deputies.”

It’s a long-standing practice because there is a dialogue that

takes place between government and the commissioner. It’s a public

dialogue. That’s why the member was carbon-copied on it. The official

opposition critic for the Attorney General was carbon-copied on it as

well — there were two members of the opposition carbon-copied on it — so

that this could be discussed in the Legislature.

Now, I’m not quite sure why, but the member is very interested in

when exactly these concerns were raised, even though there’s a letter

dated October 9, so he knows that they were raised. He knows that

government is aware of them, yet here is the legislation in front of the

House.

So government clearly considered this. The legislation is in

front. Hopefully we’re going to vote on it sometime. Does he have

questions about the concerns that were raised and why government may or

may not have headed in that particular recommended direction? Does he

have questions about why we didn’t go further and expand the categories

in which public agencies, health authorities and others could have

information processed or have information transit through other

countries? I’m not quite sure.

It doesn’t matter. I mean, I’ll do my best to answer. But when he

knows that there’s feedback from the commissioner, that we’ve received

it…. He knows we’ve received it because he got the letter too, and here

is the bill in front of us. It’s fairly self-explanatory — how we got

here.

S. Thomson: Well, I think it is quite self-explanatory, the issue we’re

addressing here, with the fact that legislation was tabled, and two days

later the Privacy Commissioner had to register significant concerns

about the legislation in terms of the wording. If you look through it,

things like the language is too permissive, vague, should be more

strictly limited — words along those lines…. Obviously we will have some

further questions around those concerns that have been

raised.

The real question is, and what we would have thought…. I served in

executive council before, when legislation was going through the

legislative review process, through drafting and everything like that.

There were a number of tests that had to be met, boxes that had to be

ticked off — privacy impact assessment, First Nations consultation,

trade and regulatory compliance. All of those kinds of steps had to be….

A pretty rigorous process in bringing legislation forward.

Again, back to the basic question, which I think is a very

legitimate question. It is: were these concerns that he has raised in

the wording of the legislation that is now tabled — and he had to raise

them after the tabling — raised during the privacy impact assessment,

during the consultation process that the minister says took place with

the office?

[2:45 p.m.]

Were those concerns raised and discounted on the balance of

wanting to open up and provide the opportunities? I think that’s the

question. Maybe we’ll have a little bit more clarity around that when we

see the privacy impact assessment statement, because that should outline

the steps that were taken in terms of the discussion and any concerns

that may or may not have been addressed during that process.

Again, back to the basic question: were these concerns raised

during the process of consultation and before the legislation was

introduced?

Hon. D. Eby: I’m afraid I’m at the limit of what I can assist the member with

in terms of clarifying government’s intention, the commissioner’s

concerns and the consultation that I’m advised took place.

If it’s of assistance to him, I’m advised that there was

consultation, at least, on September 9 and 24. I don’t know if that’s

helpful. But other than that, I’m not sure how else I can assist

him.

P. Milobar: Maybe I’ll rephrase the question to the Attorney General. Really,

what we’re asking and what we’re curious about here is: there was

consultation with the Privacy Commissioner ahead of the drafting of this

legislation or while it was being drafted. The letter has been sent

after the legislation was already tabled in the House. The Attorney

General has not amended it, to my knowledge, to coincide with what the

Privacy Commissioner has recommended in the Privacy Commissioner’s

letter.

Therefore, were the articles listed in the letter by the Privacy

Commissioner brought forward to the staff as the bill was being created

on, it sounds like, September 9 and September 24? If so, why was it

ignored and not changed to be a part of the legislation?

Hon. D. Eby: Perhaps it would be easier for the member if he wanted to ask

about a specific issue — why government headed in one direction or

another — rather than a sort of a broad question. I have outlined the

intention of government and the balancing of interests in terms of the

broad response to his colleague.

If there’s a specific proposed amendment that he’s curious about,

I’d be glad to do my best to assist.

M. Lee: I believe the reason why we’re asking these questions is to have

confidence in the process in which this government has come forward with

this legislation.

As the Attorney General has referred to, this is an area of great

concern to all British Columbians in terms of what the government does —

how it handles private personal data information of British Columbians.

I would have thought, as the member for Kelowna-Mission has outlined

concerns around and the member from Kelowna West, in the face of the

speculation tax, with over 1.6 million users and filers providing

personal information to this government, that concerns around how the

government utilizes and processes that data is very

important.

With the Office of the Information and Privacy Commissioner, that

office has a role to play in all of this. The Attorney General has

acknowledged that. But in the dialogue of the questions and answers that

we’ve been hearing, we’re not getting any comfort around the process in

which the concerns that were outlined after the legislation was

introduced in this House were brought to the attention of the official

opposition.

The Attorney General has referred to the letter, which we have.

Clearly it sets out in detail…. We’re happy to discuss in detail the

concerns around the legislation. But the question is: what confidence

can we have in the process that this government has followed in

reviewing the privacy impact assessment for this act?

So the reason why the members for Kelowna-Mission and

Kamloops–North Thompson have been raising this question is to get some

understanding as to whether the commissioner’s concerns were addressed

in the process that the government followed prior to the introduction of

the bill.

I think that is a fair question to be asking. We’d ask, again, the

Attorney General if he would please answer that question.

Hon. D. Eby: The member says that he would like to discuss the bill. I would

like nothing better than to discuss the bill. However, the members seem

to be doing everything but discuss the bill.

[2:50 p.m.]

There is a letter dated October 9, 2019. I thought the member for

Kamloops–North Thompson…. He was so close. He said: “Okay, so you got

this letter from the commissioner on October 9 that outlined some

concerns. We’ve got this bill. It doesn’t seem to change based on what

the commissioner sent.”

Instead of saying “therefore,” the commissioner raised the

concerns. Government considered them and decided not to adopt them.

Therefore, were these concerns raised earlier?

I’m not sure where that gets us. We have the concerns in hand. I

think they’re important concerns. They were raised by a very serious

person with a very important office that government supports to bring up

exactly this kind of concern.

The government considered the concerns. The government has put

this draft legislation, this bill, in front of the House for debate and

discussion and voting. I know the members have a copy of this letter

from the commissioner that raises concerns about the language as sits in

front of the House right now.

The member thinks it’s a fair question. That’s fine. He’s welcome

to think that. The issue is the commissioner has raised concerns. The

bill is as it stands, and it is the product of balancing a number of

different priorities and concerns.

I’m very grateful to the commissioner for the commissioner’s work.

I think it’s important that copies of the letter be sent to the

opposition, to the Third Party and to my office and to the acting

minister’s office. It’s all part of the process which includes

engagement with the commissioner before the bill is tabled.

Now, the members draw a great deal of significance from the fact

that the letter arrived after the bill was tabled. They just read the

last paragraph of the letter. “Consistent with our long-standing

practice when commenting on a bill tabled in the Legislative Assembly,”

they’re providing a copy of the letter to opposition critics.

When we engage the commissioner on draft legislation, the

commissioner can’t…. Part of the deal is you don’t put up a letter on

your website about the legislation, because you’ll be announcing

government legislation instead of government announcing it.

So we want your feedback. We want your input. We need to be able

to engage with you. This was a practice engaged in by the previous

administration as well, and it’s a necessary and very helpful process to

ensure that our laws are as consistent with our values around privacy,

as well as technology and innovation, as they can be.

If the commissioner finds that the commissioner still has concerns

on the bill being tabled, the commissioner then writes a letter and

sends it to everybody. Then it’s out in the open, and we can have a

debate about it in the Legislature — or theoretically, we can have a

debate about it in the Legislature. Or we can talk about exactly when

the concerns were raised, even though there’s a dated letter in the

hands of the opposition.

M. Lee: Well, let’s try this one more time. In terms of the September 9

and September 24 interaction with the commissioner, can I ask the

Attorney General: what was presented to the commissioner to comment on

for the purpose of that discussion?

Hon. D. Eby: With apologies to the member, I was just briefly consulting with

staff. Could the member repeat the question?

M. Lee: No worries. Just to say again that for the purpose of

understanding the process, what was the information provided to the

commissioner on September 9 or September 24 in the discussion of what

were, what we’re hearing earlier, principles for this bill?

Was the language, and the actual language of the proposed

amendments, tabled for the commissioner’s review?

Hon. D. Eby: I can advise the member that standard practice is to provide draft

legislation amending the Freedom of Information and Privacy Act to the

commissioner for comment and review in any engagement

process.

[2:55 p.m.]

M. Lee: In that engagement process, did the commissioner provide revised

or additional language, alternative language, to your ministry, stemming

off the September 9 and September 24 interactions?

Hon. D. Eby: The practice is to provide the proposed legislation for comment by

the commissioner so that government…. It’s really helpful for government

to hear issues, concerns, suggestions, from the commissioner’s office

because they have a great deal of expertise in privacy and information

management. So it’s part of the process when we’re amending the

act.

S. Thomson: I don’t think at all that we’re disputing here the consistent

practice of the Privacy Commissioner, following the tabling of

legislation and the practice of providing copies. I think that’s a valid

process and part of the important role that the Privacy Commissioner

plays.

The concern, and what we have been probing, is…. Given the nature

and the concerns and the recommendation to government in the letter

outlining some of the risks, some of the concerns that he has around it,

and his wording in the letter, saying: “I therefore strongly urge the

following amendments to the bill, which would better protect British

Columbians’ privacy while serving the amendments’ goal….”

He has made some recommendations here that he believes better

protect British Columbians’ privacy. He indicates that those can be done

in a way that doesn’t compromise or doesn’t meet the objectives of the

amendments that have been brought forward. In fact, earlier in his

letter he says that the overall objective is laudable in terms of what

is being proposed here.

It goes back to the questions that have been raised earlier, that

I’ve raised and that my colleagues have raised: if they were raised in

the process of consultation, during the privacy impact process leading

up to it, why weren’t those concerns addressed in that process? And why

has he had to step forward now with the significant concerns that are in

his letter?

We would have thought that those concerns might have been raised

during the process. That’s what we’re probing. I expect that if they had

been raised in the process, and they are legitimate concerns around the

overall objective of ensuring the strictest possible protections in

place for individual citizens’ privacy, they might have been

incorporated in the legislation that was brought forward. But they’re

not, and that’s why we’ve been asking the questions around process —

whether or not those concerns were raised in that process.

As I said, maybe the privacy impact statement will give us a

little bit more clarity on it. Clearly, the minister is not prepared to

indicate whether that’s the case or not, referring back to the letter

that we do have in front of us. But, again, that was post the

introduction of the legislation, to have those concerns formally

conveyed.

Maybe I’ll ask just one more time. I know I probably may not get

the answer, but did the nature and the level of these concerns that have

been raised in the letter of October 9…? Were they part of the

discussion in the consultation processes that took place on the dates

that the minister referenced?

[3:00 p.m.]

Hon. D. Eby: The government has considered the important feedback of the

commissioner and has put forward what we believe to be the best

balancing of ensuring that the public service, public agencies, have

access to the technologies that have high value and high security for

British Columbians while preserving privacy. We believe that this

language reflects the best matching of those goals.

P. Milobar: Well, the minister wants a specific question about the letter, so

I’ll try to provide one. In the letter of October 9, the commissioner

writes: “The proposed

section 33.1(1)(p.1)(

A) would permit disclosure of

personal information if necessary for the processing of information and

if that processing does not involve the intentional access of

information by an individual. This language is too permissive. It should

be replaced by the following: ‘Permit any individual to have access to

personal information in the ordinary course of the

processing.’”

Was that recommendation made by the Privacy Commissioner ahead of

the October 7 presenting of the bill, and if so, why was it

ignored?

Hon. D. Eby: The language that’s in front of the House prohibits the

intentional access of information by an individual, which is a stricter

standard than allowing an individual to have access to personal

information in the ordinary course of the processing. You might have an

unusual course of processing and then an individual intentionally

accessing that personal information in that unusual circumstance. That

is something that would not be permitted under the language that’s in

front of the House, so we believe, actually, that the standard that’s in

front of the House is a more strict standard than that proposed by the

commissioner.

S. Thomson: I know the minister wants to move on and look at the specifics of

the legislation. I think we’re probably at that point. I know we’re not

going to get the answer that we’ve been looking for as far as process

getting to this point, and as I said, maybe the privacy impact

assessment, which I heard — a commitment from the minister — would be

provided to us.

As I said earlier in my comments, we all support the strongest

possible protection of personal information and privacy — that

disclosure and storage, whether it’s within Canada or outside Canada,

should be strongly protected and limited, particularly, as I pointed out

earlier, with the increasing technology and opportunities that are

there. But we do want to make sure — it’s important to ensure — that the

legislation is as tight as possible.

A lot of this debate maybe could have been clarified and addressed

if the…. You know, in our sense, we have a concern or a worry that the

minister — now, in this case, the former minister — may not have had

that level of consultation with the commissioner during the process, and

the commissioner has now had to weigh in after the introduction of the

bill. It’s disappointing to see that this may be the case, and since we

haven’t gotten the answers, that’s one assumption we can

make.

But I think the commissioner has provided some very thoughtful,

informed comments and advice on the proposed legislation and has

recommended a number of specific amendments to the legislation that

would, in his view, provide that greater level of protection and reduce

the risk to citizens.

[3:05 p.m.]

I’d like to table an amendment to the bill. I have copies here for

the Clerk and for the minister and for the official

opposition.

[ 22

Section 33.1 (1) (

b) of the Freedom of

Information and Protection of Privacy Act, R.S.B.C. 1996, c.

165, is amended by adding the following

paragraphs:

(p.1) if the disclosure

(

i) is necessary for the processing of information and if

that processing does not

(

A) involve the intentional access of the

information by an individual

permit any individual to have access to personal information in the

ordinary course of processing , or

(

B) result in the storage of personal information, other

than personal information that is metadata

for the minimum period of time that is necessary to complete the

processing , outside Canada, and

(ii) in the case of disclosure outside Canada, results in

temporary access that is limited to the minimum period of time necessary

to complete the processing;

(p.2) if the information is metadata that

(

i) is generated by an electronic system, and

(ii) describes

is generated by an individual’s interaction with the electronic

system,

and if,

(iii) if practicable

unless it is not possible to do so , personal information in

individually identifiable form has been removed from the metadata or

destroyed, and

(iv) in the case of disclosure to a service provider, the

public body has prohibited any subsequent use or disclosure of personal

information in individually identifiable form without the

express authorization of the public body

without the prior written agreement of the public body ;

. ]

On the amendment.

S. Thomson: These amendments incorporate the provisions that have been

recommended by the Privacy Commissioner. The government has had his

recommendations for close to two weeks now but clearly indicated that

they are not going to consider his recommendations in bringing and

continuing to bring the legislation forward, which they could have

done.

The amendment that we have provided a copy of does bring in those

provisions and adds the following. I will need to read these into the

record, I think. That’s the process.

The amendments would be, under

part 1(i), to strike out, under

section (A), “involve the intentional access of the information by an

individual” and replace it with the wording: “permit any individual to

have access to personal information in the ordinary course of

processing.” That is to address the concern that he has raised in his

letter around the initial language being too permissive.

Then in part (B), where we talk about “result in the storage of

personal information, other than…” to strike out “personal information

that is metadata” and put in the wording: “for the minimum period of

time that is necessary to complete the processing outside Canada.” This

is another

section he’s recommended, where he is saying that the storage

component of it should be much, much more limited and recommends that it

relate to the minimum period of time that is necessary to complete the

processing.

part 2, subsection (ii), to take out the word “describes” and

to replace it by the words “is generated by,” because in his view, the

word “describes” is vague and potentially broad; to strike out the

words, under (iii), “if practicable” and replace those with the words

“unless it is not possible to do so.” Again, he pointed out in his

letter that the word “practicable” is vague, open to judgment and leaves

a lot of questions as to what’s practical and what’s not practical. What

he’s saying is it should be strengthened to the point where it says

“unless it is not possible to do so,” which is a much higher test and a

much higher provision as to when that exception could take

place.

Then under part (iv), to take out the wording “without the express

authorization of the public body” and replace that with the wording

“without the prior written agreement of the public body.” He has

recommended that wording and his view of providing for greater

transparency, accountability and certainty in that provision, which is

one of the hallmarks of what we want to see in the legislation — that

transparency and accountability in the process.

That’s the amendment that we’d like to move for

consideration.

Hon. D. Eby: I looked at the amendments proposed by the members. Again — this

is the second time today — we provided access to legislative drafting

counsel. These are lawyers who are expert in drafting statutes in

British Columbia — consistent legislative language, consistent terms so

that our laws make sense to people when they try to figure out what they

mean. And we receive, again, twice today, a last-minute proposed

amendment from the opposition that clearly hasn’t gone through

legislative counsel.

[3:10 p.m.]

I will flag for the member that his first amendment…. He stands up

and says: “Oh, this is going to tighten controls and prevent people from

accessing personal data.” But the first amendment increases access to

personal data.

In the phrase, “If the disclosure is necessary for the processing

of information and if that processing does not,” he’s struck out:

“involve the intentional access of the information by an individual.” So

that clause says that you just can’t access the personal data by an

individual. You just can’t do it. If it’s intentional, you can’t do it.

If it’s accidental, okay. But if it’s intentional, you can’t do

it.

He has replaced it with language that would permit an individual

to access personal information as long as it was outside the ordinary

course of processing. He says that he wants to restrict access to

personal information outside Canada, introduces a provision that would

increase access to personal information outside Canada and does so in

language that is inconsistent with B.C. statutes and will create

unintended harms, because it hasn’t actually been considered by

legislative counsel.

So no, I won’t be supporting the amendment of increasing access to

personal data outside Canada. I don’t think the member understands,

actually, what he’s proposed here in the first

section if his intention

is truly to restrict personal access.

I would urge the opposition, again, to take advantage of

legislative counsel so that their amendments could, if the government

supported them, actually be adopted.

S. Thomson: Speaking to the amendment, the amendments incorporate, to the best

of our ability, the provisions that have been recommended by the

Information and Privacy Commissioner. The minister and the members

opposite have also had the recommendations for close to two weeks. It is

clear that they, in consideration of this, have decided that the Privacy

Commissioner’s concerns, as registered here, don’t warrant any further

consideration or amendment. They have the opportunity, with bringing the

legislation forward, to recognize the concerns that he has brought

forward.

So our amendment is to bring those concerns into the legislation —

going back to the point that, in our view, it appears the process

leading up to this didn’t have the potential rigour in terms of

engagement with the office that might have prevented all of this

discussion and debate.

The amendments have incorporated his direction and his concerns —

to bring those into the legislation. So we’ll be supporting the

amendment unless the minister has another process here that would

address the Privacy Commissioner’s concern.

P. Milobar: I rise to speak in favour of the amendment as presented. It’s

important, I think, that we get this right, as we’ve heard. We do

support, obviously, trying to make sure people’s access to their

personal information is safeguarded and that, as best as possible, we

keep the issues around the PATRIOT Act and other access points down into

the States at a minimum.

People do have that option with their apps and everything they do

on their phone, as the minister has pointed out. They have unlimited

border-free data-sharing going on already. But it’s important for those

government agencies to make sure that not only are people getting access

and efficient access to their information between agencies and between

health authorities and moving information around, but it needs to be

done in a secure fashion.

When you read the letter from October 9, which the Privacy

Commissioner provided, it makes it very clear that, despite what the

minister’s answer to my last question was, the Privacy Commissioner is

in direct odds with the minister’s answer. The minister said that the

language in the bill as it stands is actually much more

secure.

[3:15 p.m.]

But when you read the Privacy Commissioner’s letter, it says flat

out that this language is too permissive. It should be replaced. There

are other points in the letter where that similar theme comes

up.

On balance, that the intent of the legislation and cleaning up of

the legislation is to modernize it and to better reflect what’s going on

with technological advances and the fact that some of the routing does

dip into the States and straight back over into Canada again is

understandable for why that would need to be done. But it is very

troubling that the Privacy Commissioner’s concerns seem to have been

dismissed out of hand by this minister.

We’re not sure what the original Minister of Citizens’ Services

would have thought as, obviously, that minister, basically, as the bill

was being tabled in the House, was no longer the minister. It makes for

a bit of an awkward situation moving this bill forward in terms of

getting an understanding of what actually was going on within that

ministry as this bill was being drafted and the interactions and the

comfort level that they may or may not have had with how this wording

has happened.

The other problem that I have, and the concern that I have, is

that the Attorney General…. I think we were being very clear in the

intent of what our questions were. The fact that it took the amount of

questions that it did over the length of time that it did to get a

simple answer to whether or not the advice in the letter was actually

properly reviewed and why it wouldn’t have been acted upon when it’s

very evident that it’s obviously not in the bill…. It’s very evident. We

agree and we understand that the advice always comes after the final

bill has been tabled — the official public letter. But there were the

meetings ahead of time, as the minister pointed out, with this

bill.

To see such evasive answers continue, question after question

after question, about something so basic and simple to connect together

really does make one wonder if the Attorney General was truly not

understanding what we were getting at. One wonders how he was able to

shepherd through complicated legislation in this House. That would lead

me to believe that instead we’re seeing very much an effort to try to

evade the question. Why? We’re not sure.

That’s why I have comfort with the amendment. The amendment makes

it very clear and very succinct in terms of making sure that it’s more

in line with what the Privacy Commissioner would recommend.

I would suggest that before the Attorney General was the Attorney

General, either in opposition or in his previous role at the civil

liberties, if a privacy commissioner had come out with recommendations

like this on a piece of legislation by the previous government, there

would have been a lot of concern being expressed as to why the Privacy

Commissioner was being dismissed out of hand — not being just dismissed

out of hand but 180-degree opposite

interpretation of the same

clauses.

The Attorney General isn’t just sharing a slight difference of

wording opinion with the Privacy Commissioner. The Attorney General’s

answer to me — on my question around why one of the proposed changes was

not enacted or taken seriously and dismissed outright — was the exact

opposite of what the Privacy Commissioner says about the wording. I’m

going to err and go on the side of the Privacy Commissioner every

time.

That, to me, seems to be why we have the Privacy Commissioner in

the first place. It’s to safeguard and make sure that breaches like this

don’t happen. Now, I don’t know if it’s because right now there seems to

be a back-and-forth battle with government and the Privacy Commissioner

and offices around FOI and if this is a way to try to plant a flag —

who’s the boss — when it comes to these types of things or not. I’m not

sure.

What I am sure, though, is that the Privacy Commissioner made some

very clear recommendations on this legislation, and they have been

wholly and completely ignored by the government — dismissed completely.

What would be the point of consulting with the Privacy Commissioner if

you have no intention whatsoever of following through on any of the

recommendations?

[3:20 p.m.]

It does make one wonder why there is such an apprehension by the

government to adopt any of the recommendations at all that the Privacy

Commissioner has brought forward when you consider the ramifications on

a piece of legislation like this. If it’s not followed through properly

in terms of people’s access, especially as it relates to their medical

and health records that public bodies would have access to….

I know that this seems to be frustrating to the Attorney General

and some of his colleagues, that we’re asking these many questions or

that we dared to bring forward an amendment that actually is in line

with what the Privacy Commissioner is recommending. But I would point

out it wasn’t that long ago that the Attorney General wrapped up second

reading debate on this by trying to admonish this side for not spending

enough appropriate time debating the miscellaneous statutes bill, the

overarching bill of this, because there were some important pieces of

legislation in there and important changes. We agree with that. We

wanted to get to this stage.

I guess we could have flipped forward and started to re-debate the

throne speech, but that side didn’t feel it was important enough to

debate back when it was first introduced. So we had nothing but Bill 35

to debate on that day that the Attorney General decided to admonish us

for not debating long enough.

Yet here today the Attorney General seems very frustrated that we

are daring to ask questions when there is a very clear contradiction of

opinion between the Privacy Commissioner and the Attorney General, as

well as the Minister of Citizens’ Services and their drafting of this

legislation. That’s why the amendment is so important to make sure that

any changes to information storage and handling, especially by public

bodies…. Where people really don’t have that self-control over their own

decision-making as to whether or not they want to be on an app, a

Facebook or a Gmail account or any of those other types of services,

that people have that individual right to be able to do that.

You don’t have that individual right when you’re going in and

you’re accessing the health system or you’re using other government

services. You’re at the mercy of how those records are going to be

maintained and controlled if you want to try to receive the services

from government that you should rightfully be receiving.

That’s why it’s important that we be the gatekeepers of making

sure that any changes are being done in such a way that they will stand

up to the rigour and not compromise any data being transmitted

whatsoever in ways that it should not be accessed. That is why it’s

troubling, the complete dismissiveness towards the Privacy Commissioner

that we’re hearing from the government today in terms of anything to do

with making sure that this legislation actually stands up to the

rigour.

When you look at the language that the Privacy Commissioner

recommends and that is contained within our amendment, the language that

the Privacy Commissioner is saying in the existing bill, time and again,

refers to various ways of things being too permissive or not strong

enough. Those types of languaging, phrasing, is all through the

letter.

It was a quick turnaround on the letter too, I would note. So the

Privacy Commissioner was definitely taking this seriously, definitely

recognizing that once it was in the assembly’s hands that things could

move forward in a quick fashion. I applaud the commissioner for doing

his work so quickly to make sure that this House was apprised of his

concerns.

If the government had taken any of those concerns seriously in the

first place, probably the letter would have read: “This piece of

legislation aligns with what we’d recommended as we worked together

behind the scenes to create the legislation.” Changes that were

needed.

But that’s not what this letter states. This letter very clearly

states, in one way and another, that “the government ignored me, and

here are the changes I would make,” and why because the government’s

legislation is too loose, it’s too easy to circumvent, and it will not

provide the protections for the general public that they rightfully

should expect from their government agencies that they are receiving

services from and providing their data to.

Again, the minister routinely goes on about the legislative

drafting services available and seems to use that as a reason why to not

adopt legislation. The simple fact is we do bring forward amendments

that do meet the criteria and do stand up to the scrutiny of whether or

not it’s legislatively possible and worded correctly or not. But that

seems to be a convenient reason, it seems, for the government not to

enact the changes.

[3:25 p.m.]

The changes that we have in our amendment are the same changes

proposed by the Privacy Commissioner. If the government would have taken

even a moment to seriously consider the Privacy Commissioner and the

expertise that that office actually brings to the table, they could

easily, over the last two weeks, have brought in their own amendments to

clean up the bill.

We’ve seen several government bills come through that same

legislative drafting service that required a lot of amending and

corrections made for drafting errors, for language errors. I know that

the Minister of Environment had several changes in a piece of

legislation that I was the critic for and that we had to point out. By

the time we came back from a week away, I think there were about 16

different amendments that the minister had to do because the legislation

was not correctly put together.

So I’m not quite sure why the minister seems to get so agitated

when we dare to try to amend things for the betterment of our

communities. We saw that earlier today with the Trespass Act, in terms

of that amendment, and the spirit and the intent behind that. We see

that again today. Instead of focusing in on the merits of why the

Privacy Commissioner’s recommendations are being flat out ignored by

this government, the government tries to cloud things by stating that

the amendment did not go through a drafting service.

I seem to remember another amendment that came forward through the

drafting service by the Third Party that was ruled out of order after

all of the rigmarole of doing that. So there’s no guarantee that that is

what indeed will happen in going through the drafting service.

Certainly, our staff are very professional when they put things together

as well. I stand behind their work wholeheartedly with this

amendment.

Hopefully, this House will see the wisdom in aligning with the

thoughts and the views of the Privacy Commissioner, the office that’s

actually set up to make sure that these types of protections are in

place. Instead, what appears to be just another internal fight of

government with the privacy commissioner, because they seem to be

unhappy with how the rulings have been going against them in regard to

FOI and records document management. Perhaps, with the new minister in

place, things might change. But for the time being, in this legislation,

drafted under the old minister that was in place at the time, we’re not

seeing that.

I fully support the amendment, and I hope this House will as

well.

M. Lee: Well, I’d just like to also speak in favour of this amendment. I

think the questions around the process were indicative of the concerns

around the nature of these proposed amendments. When the opposition

caucus received copies of this letter dated October 9…. It clearly lays

out the concerns by the Information and Privacy Commissioner in respect

of the various sections of the Freedom of Information and Protection of

Privacy Act that are being amended, for the good intention of

modernizing that act, in the sense of all of the availability and

processing of data — health care and otherwise — that might occur,

temporarily, outside of Canada.

In terms of the concerns that are addressed in the letter, they

are spelled out in a way that would suggest, in the commissioner’s view,

that the way that the amendments that have been proposed, under Bill 35,

to these various sections, is actually deficient. They’re deficient in

the way that they’re worded. As the member for Kamloops–North Thompson

just demonstrated in the exchange there, there’s a difference in

interpretation in respect of the first provision that’s being amended. I

would suggest the reason for that is that the commissioner has said that

the language in the proposed subsection 33.1(1)(p.1)(i)(

A) would be “too

permissive.”

[3:30 p.m.]

The reason for that is because when you look at the current

wording that’s being proposed, as the Attorney General stated, where the

processing does not involve “the intentional access of the information

by an individual….” That is the wording that the government is

proposing. The alternative language,in the amendment tabled by the

member for Kelowna-Mission, reflects the wording that this government

had notice of on October 9.

[R. Chouhan in the chair.]

Spelled out very clearly in their letter is that the alternative

wording should read: “if that processing does not permit any individual

to have access to personal information in the ordinary course of the

processing.”

Intentional access. Well, what does “intentional” mean? I believe,

having not had the opportunity to speak directly with the commissioner,

that his concern around the language being too permissive is that that

test is too high. It’s the opposite of the

interpretation the Attorney

General just shared with this House. It’s only if the processing

involves intentional access.

Well, what is intentional access? That is, presumably, processing

that enables access to personal information that is intentional —

intentional, arguably, outside of the purview of this act. The wording

that’s been provided by the commissioner in the alternative would

provide that the processing does not permit an individual to have access

to personal information in the ordinary course of processing.

That is the type of processing that would be permissible under the

purview of this act. That is what the commissioner is presumably

referring to. I would suggest to this House that the language that the

member for Kelowna-Mission is tabling is completely appropriate and very

clear, on its face, to provide a greater level of protection for the

temporary processing of information in this manner.

The second amendment, under (p.1)(i)(B), is substituting the

wording that says…. In this section, the government is proposing that

personal data that is metadata can be stored outside of Canada. This

language is actually saying that that is permissible. This is the

language proposed by this government. Again, “personal information that

is metadata” can be stored outside of Canada. That’s the

effect.

The language of the commissioner, outlined clearly in his letter

of October 9, two weeks ago, to this government is that that language

should be: “other than for the minimum period of time that is necessary

to complete the processing” outside of Canada. There is a time period

there that’s prescribed in this recommendation by the commissioner to

this government that’s very clear — the concern that any processing or

storage of personal data be for a minimum period of time.

Again, the language used that is spelled out is more restrictive.

That, in the words of the commissioner in his letter of October 9,

suggests that this language that I just stated for that (

B) wording

ought to be changed to provide for a stronger limit so that there is a

limit placed on the storage of personal data that is, in effect,

metadata.

Right now, in the wording that the government has proposed, there

is no limit. There’s an exclusion for the storage of personal data or

personal information that is metadata. I would have thought that if that

concern and concept was raised, even by way of principle, on September 9

and September 24, this government would have heard that concern by this

commissioner, because in concept, that is a very clear concept that

everyone can understand.

So the fact that as the Attorney General took us through the

process to suggest that all concerns of the commissioner were taken into

account and that we only have the evidence of the response of the

government by virtue of the non-reflection of what the commissioner is

clearly recommending in his letter of October 9….

[3:35 p.m.]

That’s clear indication that this government has rejected that

advice and presented legislation which is defective, weak and doesn’t

place the level of protection around the handling of personal

information in the manner that the Information and Privacy Commissioner

of this province, who is charged with that responsibility,

recommends.

If you read the letter…. It’s available on the website to the

public. The letter is worded very strongly in terms of his level of

concerns. The Attorney General talked about the broad spectrum of review

and input that’s being provided. But I ask, and I just raise

rhetorically…. We have to respect this office. This commissioner is

playing the role. He is charged with the responsibility for the

protection of information and privacy in this province.

With the level of data that this government is requiring from

British Columbians, at the very least, British Columbians would expect

that the commissioner would be heard and his recommendations would be

accepted. In the face of a letter that all members on this side of the

House have received — as well as the member for Saanich North and the

Islands, as the critic for the Third Party for the Ministry of

Citizens’ Services — we have grave concerns

as to how this government is proceeding with this legislation. That’s

the reason why we’ve taken the time to reflect the recommendations

identified very clearly by the commissioner in his letter of October 9

in the proposed amendment that’s being tabled.

The member for Kelowna-Mission has gone through the other

amendments that are being set out in the manner that is described in the

October 9 letter, but I would urge all members of this House to consider

this. There can be nothing more fundamental than ensuring that the data

that British Columbians share with their government is kept in a safe,

reliable, secure manner.

Again, in the face of the level of increasing data requirements by

this government, of personal information that is being required to be

shared with this government, and the use of that data, we need to ensure

that that data is well protected. With the modernization of how data is

stored, transmitted and processed, we do need to modernize this act. We

all agree that that is necessary. But the process by which we’ve gotten

here is questionable, in the face of this letter from the commissioner.

That’s the reason why we’ve tabled this amendment for the consideration

of this House.

We would urge all members of this House to consider carefully

these amendments, because in our view, we agree with the commissioner

about the concerns. We’d certainly be happy to discuss, if necessary,

each of those amendments. But they clearly strengthen the act. They

clearly provide for the right level of clarity around the provisions

dealing with protection of personal information and the processing of

that information.

The language used that is proposed in this amendment would ensure

that we have that level of accountability. To ensure, for example, that

if there is going to be a disclosure…. In sub (iv), at the end of the

section being proposed, is another example: “In the case of disclosure

to a service provider, the public body has prohibited any subsequent use

or disclosure of personal information in individually identifiable form

without the express authorization of the public body.”

[3:40 p.m.]

In this case, the commissioner has proposed language to this

government that that be strengthened, that that only be in the case

where there has been a prior written agreement of the public body. Prior

written agreement. The use of the word “prior,” of course, demonstrates

that any consent or approval by a public body must be done prior to that

disclosure. That’s important to ensure, again, how personal information

is being disclosed in an individually identifiable form.

Here, again, we go back to metadata. People say: “Well, it’s just

data.” But this section, which is a very important section, provides for

that disclosure in an individually identifiable form and under what

conditions that could be possible. Again, we have this big carve-out

under this

section for metadata.

Then we have, in the language presented by this government, loose

language. If you’re going to identify, individually, personal

information, that must be done with the prior written agreement of the

public body. That is what the commissioner has written in his

recommendations. That is yet another example of the reason and the

purpose for which these recommendations are being put forward. It’s very

clear that these recommendations, each of them, need to be adopted to

amend the proposed language that this government is bringing forward and

that one needs to question, in the absence of this….

If this government is pushing this forward and is prepared do this

in the face of not accepting these recommendations, British Columbians

need to ask themselves: “Well, what is this government doing? Are they

not putting in place the right level of protections for our personal

information? What confidence can we have in providing and continuing to

provide our personal information to this government?” That is the

concern. We need to ensure that British Columbians have confidence in

the way that their personal information is being handled.

Again, I’m speaking in favour of these amendments in totality,

because in my view, they need to be adopted by this government. If

they’re not prepared to adopt these amendments, they should stand down

these amendments and have the thorough discussion with the commissioner

and leg. counsel, as necessary, to ensure that these concerns are

properly addressed.

[3:45 p.m.]

Amendment negatived on the following division:

YEAS — 41

Cadieux

de Jong

Bond

Polak

Wilkinson

Lee

Stone

Coleman

Wat

Bernier

Thornthwaite

Paton

Ashton

Barnett

Yap

Martin

Davies

Kyllo

Sullivan

Reid

Morris

Stilwell

Ross

Oakes

Johal

Rustad

Milobar

Sturdy

Clovechok

Shypitka

Hunt

Throness

Tegart

Stewart

Sultan

Gibson

Isaacs

Letnick

Thomson

Larson

Foster

NAYS — 43

Kahlon

Begg

Brar

Heyman

Donaldson

Mungall

Bains

Beare

Chen

Popham

Trevena

Chow

Kang

Simons

D’Eith

Sims

Routley

Elmore

Dean

Routledge

Singh

Leonard

Darcy

Simpson

Robinson

Farnworth

Horgan

James

Eby

Dix

Ralston

Mark

Fleming

Conroy

Fraser

Chandra Herbert

Rice

Malcolmson

Furstenau

Weaver

Olsen

Glumac

Sections 22 to 32 inclusive approved.

section 33.

[3:50 p.m.]

S. Bond: We appreciate the opportunity to ask a few questions on the

finance amendments that are included in Bill 35. Obviously, the finance

amendments could be dealt with as a whole or by act, so what my

co-critic and I thought we would do is ask our questions about one act,

knowing that they apply to the others. So we’ll deal, then, with the

Carbon Tax Act, and we’re going to start by looking at

section 33 if

that’s amenable to the minister. She’s nodding. We do appreciate

that.

The sections we’re going to talk about, primarily sections 33 and

34, are…. And we do want to recognize the minister and thank her for her

heads-up on the bill and giving us a general overview about the content.

Much appreciated.

Section 33 enables a series of new ways to deliver tax documents

to both individuals and businesses. Would the minister explain if these

provisions are the new standards of tax document delivery and why it was

necessary? And perhaps I’ll just add an additional question. Perhaps

give us a sense of the magnitude. How many of these things are

delivered? How big a challenge is this? So, again, is this a new

standard of delivery for tax documents, why is it necessary, and what’s

the magnitude of the number of documents we’re talking about?

[3:55 p.m.]

Hon. C. James: Thank you to the member for the opportunity to go

through.

As I mentioned in my comments about the act, we really are talking

about amendments that are around clarification. As you’ll see through

most of the acts, it’s consistent in each of the sections and is

basically…. I think the member asked a very important question: is this

the new terminology to be used in acts? And yes, in fact, this is making

sure that all of our acts are consistent. That’s really the purpose of,

in fact, almost all of these amendments — to make sure that there is

consistency with the new acts that have been brought in.

It replaces the language that was previously used with consistent

language in other tax acts. It ensures, for example, how documents can

be given and the range of ways they can be given so that’s consistent. I

think this is very important, and you’ll see it in the other sections as

well. It doesn’t reflect, in this one, a change in policy or

interpretation. It, in fact, only provides clarification in the

act.

These would be all notices, so we don’t have a number. I can try

and get a number. But this would include everything from collections to

assessment. Anyone who is dealing with the tax department and has a

challenge…. Any of those notices would be served through this process.

It would include all of the notices that would be served in that kind of

way through this act.

S. Bond: Is it fair to describe, then, the changes as basically catching up

with practice? It doesn’t introduce new methods. It’s simply looking at

catching up with practice and making sure that it’s consistently applied

across a number of acts.

Hon. C. James: That’s a good description. It’s really making sure that if you’re

receiving a notice, it doesn’t matter whether it’s this act or a past

act or a current act, you will now know…. It’s basically providing

clarity to taxpayers so that they know, when they’re getting a notice,

that these will be consistent throughout the acts.

S. Bond: Thank you for that.

I know the minister has clearly said to us that this is about

consistency and clarity. I just want to be sure that this doesn’t impact

the way, for example, that the revenue division will treat non-payers or

late payers of taxes. In essence, there’s no differentiation there.

There will be no changes to that.

Hon. C. James: The member’s correct.

S. Bond: Is there an anticipated cost? If we’re looking at a consistent

approach across a number of acts, is there any anticipation by the

minister as to an increase in cost as a result of standardizing the

delivery methods?

Hon. C. James: In fact, I think there could be an opportunity for savings in the

long run, because you will have the ability to use email in some cases.

You will have the ability to not have to send it by registered mail but

to send it by regular mail. Through efficiencies, there could be

savings. I don’t think they’ll be large, but I don’t think it’ll be an

additional cost. I think it’ll be the other way around.

S. Bond: That does make sense. I appreciate that answer.

What will be the procedure for choosing a particular method of

contact? Is there an order of preference? Is there an order of

precedence? In other words, does it start with one particular method and

work its way through a list? How does the ministry decide what kind of

delivery method they’re going to use?

[4:00 p.m.]

Hon. C. James: Many of these are generated by the system, through technology. So

the first option is always ordinary mail. That’s the first outreach that

is done on these notices. If that bounces back or the person didn’t

receive the notice, then other methods are utilized. But ordinary mail

is the first method.

S. Bond: Just for clarification, is the government required to use all

methods of contact in the end? If you’re attempting to track someone

down, is there a requirement that the government go through the entire

range of options that might be available?

Hon. C. James: That is, in fact, part of the reason that we want to make this

clarification. It’s because this will permit any method to be utilized

and the range of methods listed to be utilized. That will assist in

making sure that we can reach people.

S. Cadieux: So, then, for some clarity, Minister. In an earlier answer, you

suggested this could lead to cost savings because of the switch to other

methods. How, then, will government make the choice? If there are all of

these options available — some of which are much more secure and more

likely to result in someone receiving a notice and some significantly

less secure and very likely that the situation will have changed or the

address expired, etc., for someone…. How is government going to make

that choice? Under what circumstances — for what types of notices —

would, for example, registered mail be required?

Hon. C. James: I think the important piece to note in these notices that come out

is that this is not the first time someone hears from the tax

department. The notice is not the first contact. They’ve talked. They’ve

had conversations with people in the tax department. They know a notice

is coming. The information is checked. That’s why ordinary mail is the

first push out from that contact that has already occurred with the tax

department.

If the ordinary mail bounces back — the person didn’t receive it —

then the opportunity is there to utilize the other services. That’s why

ordinary mail is the first choice. It’s not the first contact that

people have had. They’ve already had a contact with the tax

department.

S. Cadieux: Subsection 2(

e) suggests or contemplates leaving documentation

with somebody who is apparently an employee at a business that the

intended recipient is also an employee or owner of. What would the

process be for validating that the person is indeed an employee? For

example, if somebody were to walk into Starbucks, could that document be

passed to a barista? Are there going to be different practices depending

on the size and scope of a business and what relationship the individual

whose notice it is has with that particular business?

[4:05 p.m.]

Hon. C. James: Just a little bit of background that I think might be helpful on

this piece. These would be served by a process server or services or an

auditor, perhaps — so someone trained who knows, as they’re going in,

the importance of making sure that they check that the person is

employed at the business. They would usually have, again, already been

in contact with the person — went to serve the person who was there —

and would then check that someone was employed in the

business.

It would be their responsibility to ensure that it wasn’t just

left with someone who was a customer and appeared to be employed in the

business. They would have to show that they were employed in the

business.

S. Cadieux: Subsection (2)(f), then, contemplates the use of mail or regular

mail; (2)(g), the use of email. How will the delivery of documents be

managed through that process, assuming that…? It says that it will be

sent to the last known address. Again, how is that going to be

managed?

I certainly have had experience with email addresses that

malfunction or servers that boot out into junk mail or spam. How will

government manage the transmission and ensure that the individual

receives that email, assuming that they have given, through those

initial contacts, a correct email address?

Hon. C. James: I think, again, kind of following the chronology…. They will have

already had contact with the branch or the tax people or the officials

or the auditors — whoever is doing the work and needs to serve a notice.

So they have current information.

They would try ordinary mail first. That’s the route it goes. If

that bounces back, then they can look at some of these other options,

including email. They would use the email address that they would have

received during the contact that had occurred at the beginning and give

that a try. If they didn’t hear back, or if they were told that it had

bounced back, or they saw that it was bounced back, then they would go

to some of the other methods, perhaps serving in person. That might be

another route for them to go to.

Again, it goes from the regular mail and works its way through

based on the contact information that was first there.

[4:10 p.m.]

S. Bond: I just want to make sure that would be similar with fax, because

the next subsection is (h), and it talks about fax. Can the minister

just confirm it’s the same?

Hon. C. James: Yes, it will be the same process. Again, it’s making sure the

tools are there and the ability to use those tools, always recognizing

that ordinary mail is the first route to go. That’s usually the contact

that people have because they’ve already talked to the tax department

and know a notice is coming. That’s usually the process that serves the

notice to them.

Section 33 approved.

section 34.

S. Bond: Just our last couple of questions. As the minister pointed out to

us earlier, it is…. While it’s not housekeeping, it is certainly

administrative consistency, and we appreciate that.

I want to just ask for a moment about the burden of proof, because

section 34 actually places the burden of proof on the recipient of a tax

document to prove that the document wasn’t received. What would be the

means of doing that if the document was sent to the wrong email address

or an out-of-date fax number?

Maybe just speak a little bit to the burden of proof and the

person on the other end — cognizant of what the minister has said, that

obviously there has been previous contact. But it’s now up to the

recipient to prove they didn’t get the document. How would they do

that?

Hon. C. James: This is no change. There isn’t any change in this

section at all

from what was previously in the bill. The burden of proof was already

there. All this

section does is actually reorder the section. It doesn’t

make any changes.

The burden of proof has always been there. That’s really up to

someone to show that we had the wrong email address or there was an

issue at the ends. But there’s no change. This

section doesn’t change

anything to do with the burden of proof that was there

before.

S. Bond: Thank you to the minister for that answer. We discussed previously

whether an employee actually received the document. What would happen if

an employee, under subsection 2(

g) of the previous section, were not to

properly communicate the document to their employer or to someone else?

They’re in receipt of a document. They don’t do what they’re supposed do

with it. Are there consequences for that behavior?

Hon. C. James: There isn’t an offence in the act for someone who might not have

passed it on to somebody else. But again, I think the important piece to

remember in all of this is that they will have already had contact with

the tax department, so they will have known that a notice was going to

be served.

[4:15 p.m.]

It’s up to the individual. If they don’t receive the notice, they

know it’s going to be served at their work. If they don’t receive the

notice, it’s up to them to be able to get back to the tax department to

ask for a copy or whatever would occur. But it would have been deemed to

be served at that point — because, again, they will have had an initial

contact with the tax department at the start.

S. Bond: Thank you for that. The last question that my colleague and I

have. We just want to ensure that the kinds of questions we’ve asked

would also now go on to apply to the other acts that are included. Those

would be the Motor Fuel Tax Act, the Provincial Sales Tax Act, the

Speculation and Vacancy Tax Act and the Tobacco Tax Act. In essence, for

those questions, the answers would apply to all of those acts. We now

have, across these acts, a consistent way, a series of options to

actually deliver tax documents. Would that be a correct

assessment?

Hon. C. James: The member is quite right. All of the sections have very similar

kinds of approaches. The questions the member has asked — they have

similar kinds of approaches through here.

A couple of the acts have typos or errors that have been

corrected. So that may be the only additional piece in

an act. I don’t

want to leave the member to believe that there’s nothing else, because

there are a couple of those typo pieces in there. But for the rest, yes,

the standard questions that have been asked apply to each of these

sections and each of these acts in making the language

consistent.

S. Bond: Thank you to the minister and her staff for the information this

afternoon. We appreciate that. I know we’re going to spend a lot of time

together on other bills later in the session. That’ll be our last

question, and that will take us through to

section 75.

Sections 34 to 79 inclusive approved.

section 80.

[4:20 p.m.]

M. Lee: I just wanted to raise this. I know the Attorney General, in his

response to my second reading speech, gave a partial response about the

understanding around the

section that I’d like to raise to the Minister

of Health. It’s the subsection 24(c)(3)(a).

We had a briefing, as I mentioned before, that was arranged by the

Attorney General’s office for a number of hours on the day that this

bill was introduced. I had understood at the briefing that the backdrop

to that particular provision is that there is an agreement that is in

place.

I did receive a note from the Attorney General’s office clarifying

the question I had around what they were mentioning to me, which is that

there is an agreement in place between ICBC and the Ministry of Health

in respect of health care costs and that that agreement has been in

place since at least 1988 and that in 2008, when the government enacted

the Health Care Cost Recovery Act, which we’re looking at amendments to

in this bill, that continued to be the case, where the government

continued to have a pre-existing agreement to recover costs from

ICBC.

What I had understood…. And it makes mention that the proposed

wording changes to this

section are to permit the province to continue

to recover costs from non-ICBC insurers, where the corporation also

happens to be a party.

I think there is a differentiation here, by the application of

this section. So I would just like to resituate what I received in

writing as a difference from what the Attorney General indicated, which

was that this had nothing to do with ICBC’s financial situation, that

it’s related to the province being able to recover health care costs

from wrongdoers who are not ICBC-insured — for example, a car

manufacturer who makes a defective car and results in a number of

injuries in British Columbia. That was the example the Attorney General

provided in his response in second reading to my comments in my second

reading speech.

I had raised the concern — and I’ll just say it so the Health

Minister can address it — whether this amendment effectively raises the

hurdle, let’s say, for other insurance providers from operating in

British Columbia in terms of new requirements by virtue of health care

costs recovery. It’s that juncture that I’m particularly focused on, and

I would suggest that the information I received back suggests that that

is the area, at least, that is being addressed here.

So if the Health Minister can address my concern, perhaps we can

proceed with this discussion.

Hon. A. Dix: The intent has nothing to do with and doesn’t affect other

insurers and their operation in British Columbia at all. The intent here

is really the intent of the Health Care Costs Recovery Act, which was

brought in by the previous government in 2008 and has been a success in

that it has ensured that money that should be owed to the health care

system is provided to the health care system.

This is to deal with a circumstance in which more than one party

might be at fault and where everyone involved in a particular incident

or circumstance would get the benefits of the agreement with ICBC, which

was never the intent of the legislation. It just closes a potential

loophole. It had been recommended. Really, it’s to maintain the ongoing

strength and integrity of the Health Care Costs Recovery Act, which of

course has been in place for 11 years and has been — I think most would

agree — a success.

[4:25 p.m.]

M. Lee: Could I ask then, specifically, what is the impact on a non-ICBC

insurer as to how they will be complying or being asked to comply with

this provision?

Hon. A. Dix: They have been complying with the law these many years. This is

just to clarify the circumstances when the different insurers — one

ICBC, one not ICBC — are involved.

Sections 80 to 86 inclusive approved.

section 87.

M. Lee: Could I just ask for a brief recess on

section 87? We do have

another member who wants to ask questions with respect to that — part

The Chair: The House will be in recess for five minutes.

The committee recessed from 4:26 p.m. to 4:32 p.m.

[J. Isaacs in the chair.]

M. Hunt: In the midst of this

part 8 of the legislation, there are actually

two acts that are being dealt with, and many of the amendments are

exactly the same. So rather than being redundant, I’m going to ask the

question once only. If there’s a difference or a nuance between the two

acts, I’d ask the minister to simply to bring that to my attention

because of, for the sake of time and brevity, working these two

together.

So on

section 87, my question is: what is the purpose of limiting

this definition?

Hon. S. Simpson: We’ll do that and try to…. Much of this is a duplication for the

second act, as the member says.

I’d like to start. I want to introduce the staff who are with me

to support this piece of work. I have David Galbraith, the deputy

minister; Molly Harrington, the assistant deputy minister for research,

innovation and policy; and Tricia Daykin, the director of legislation in

the policy and legislation branch.

Section 87. What this does is ensure that two people who reside

together are not considered to be a single family unit solely on the

basis of taking a parental role for a dependent child as we move

forward. Without this change, if someone is living with their child and

another adult, and the other adult starts to help out with the child —

tasks that could be seen as co-parenting — the parent could lose their

status as a stand-alone recipient of assistance. This means that they

would have their rate reduced or potentially be cut off of

assistance.

The current definition has been used to find people — in most

cases, women — ineligible because a co-resident has provided even

minimal levels of support to children, and we don’t believe that that

should be the intent.

Section 87 approved.

section 88.

[4:35 p.m.]

M. Hunt: My question is a simple one again. What is the problem that the

minister is trying to solve by this amendment?

Hon. S. Simpson: The issue, really, is that the current provision does not fully

recognize 50-50 shared parenting, where separated spouses continue to

live together, which has become more common since these provisions were

first put in place in 2002. We see that more, certainly, with people

with modest incomes, where they have a residency, there has been a

formal separation, and they end up in the same plac