2002 Legislative Session: 3rd Session, 37th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

MONDAY, MAY 6, 2002

Afternoon Sitting

Volume 7, Number 5

CONTENTS

Routine

Proceedings

Page

Introductions by Members

Introduction and First Reading of Bills

Office for Children and Youth Act (Bill 43)

Hon. G. Plant

Statements (Standing Order 25 B )

Arts and culture in Burnaby

J. Nuraney

Hospice care in Vernon

T. Christensen

Royal Inland Hospital chaplain

K. Krueger

Oral Questions

Negotiations with physicians

J. MacPhail

Hon. C. Hansen

Blacklisting of hospital workers

J. Kwan

Hon. C. Hansen

Sale of Vancouver Canucks hockey team

K. Stewart

Hon. R. Thorpe

Land use planning report

M. Hunter

Hon. S. Hagen

Sale of Vancouver Canucks hockey team

J. MacPhail

Hon. R. Thorpe

Employment program for disabled and mentally ill persons

E. Brenzinger

Hon. M. Coell

Petitions

J. MacPhail

Tabling Documents

Creston Valley wildlife management area, annual report, 2001

Committee of the Whole House

Legal Services Society Act (Bill 45)

J. Kwan

Hon. G. Plant

Hon. G. Collins

Reporting of Bills

Legal Services Society Act (Bill 45)

Committee of the Whole House

Waste Management Amendment Act, 2002 (Bill 32)

Hon. J. Murray

J. Kwan

Reporting of Bills

Waste Management Amendment Act, 2002 (Bill 32)

Third Reading of Bills

Waste Management Amendment Act, 2002 (Bill 32)

Committee of the Whole House

Employment and Assistance Act (Bill 26)

Hon. M. Coell

J. MacPhail

J. Kwan

[ Page 3183 ]

MONDAY, MAY 6, 2002

The House

met at 2:03 p.m.

Introductions by Members

Hon. S.

Hagen: I'm delighted that we have in the House today some special visitors

from Sweden. We have Michael Hagberg, a Swedish Member of Parliament. He's

accompanied by Christin Nilsson, a former Member of Parliament who is currently

the general secretary of the Social Democratic Women in Sweden. Would the House

please make them welcome.

Nuraney: I'm very glad to have in the gallery today with us Rose Farina, who

is a longtime community worker in Burnaby who has served on many committees in

Burnaby and is now the president of the Burnaby Arts Council. She is accompanied

by Mary and Donald LeGrand. Will the House please make them welcome.

[1405]

Hon. G.

Halsey-Brandt: It's a pleasure for me to welcome three special guests to the

Legislature today — their first time in the Legislature. The first, from the

great riding of Burquitlam, is my mother Nessie Reid, who just celebrated her

eighty-seventh birthday. The second is my sister, Diane Molyneux, from the

beautiful Comox Valley at the north end of the island. Finally, there's my

daughter, Katherine Halsey-Brandt, who is a student at UBC and is over here

reconnoitring the University of Victoria. May the House please make them

welcome.

Anderson: I would like the House to join me in welcoming 31 grade 5 students

accompanied by ten adults and their teacher, Father Conte, from Vancouver

College in the Vancouver-Langara riding.

Introduction and

First Reading of Bills

OFFICE FOR CHILDREN AND YOUTH ACT

Hon. G.

Plant presented a message from Her Honour the Lieutenant-Governor: a bill

intituled Office for Children and Youth Act.

Hon. G.

Plant: I move that this bill be introduced and read a first time now.

Motion

approved.

Hon. G.

Plant: I'm pleased to introduce Bill 43, Office for Children and Youth Act.

This act creates a children and youth officer to provide systematic advocacy and

monitoring and to provide independent advice with respect to government services

for children and youth.

The act

covers services provided to children and youth under the Child, Family and

Community Service Act and the Adoption Act. Other services covered include early

childhood development, mental health, addictions, youth justice and planning for

transition from youth to adult services. This new model addresses the

duplication of services for children and youth and implements the decisions of

the core services review and deregulation task force with respect to the

existing children's commissioner.

Mr.

Speaker, I move that the bill be placed on the orders of the day for second

reading at the next sitting of the House after today.

Bill 43

introduced, read a first time and ordered to be placed on orders of the day for

second reading at the next sitting of the House after today.

Statements

(Standing Order 25

b) ARTS AND CULTURE IN BURNABY

Nuraney: Last week in Burnaby we celebrated the B.C. Arts and Culture Week.

Many activities by artists of all kinds took place throughout the week.

It is a

little-known fact that Burnaby is very prominent in the arts world and, in fact,

the hub for arts activity in British Columbia. There are many art venues in

Burnaby. The Shadbolt Centre has a theatre, music studios, art displays and

other cultural activities. At the Ceperley House one can rent, buy or just enjoy

art. Our local libraries are also a great place to enjoy arts and culture, where

you can pull a B.C.-authored book off the shelf and enjoy reading it. In

addition to these, we also have the Michael J. Fox theatre, which has gained

enormous popularity throughout the lower mainland.

May I

mention that Michael J. Fox is from Burnaby and is considered a mentor among the

emerging young artists. He will in fact be in Burnaby in person on June 6, where

he has agreed to come every year to promote fundraising for the theatre.

Many

artists and arts groups belong to the Burnaby Arts Council, which acts as an

umbrella organization for all arts and culture in my constituency. It services

approximately 50 member groups and over a hundred individual and corporate

members. The Burnaby Arts Council promotes the arts throughout the special arts

program and cultural events. Every second year Burnaby Arts Council organizes

the Showcase, which gives exposure of great talent that we have in Burnaby to

members and member groups. The Burnaby Arts Council's Christmas fair is also

held every year and is known throughout British Columbia for its local talent.

[1410]

In Burnaby

Heights, which is the business area in Burnaby, we have a great partnership

between business and the art world. Burnaby Heights business asso-

[ Page 3184 ]

ciation and the Arts Council coordinate the art walk, where artists display

their work in stores and hold demonstrations. Some of the businesses have large

murals to be painted on the outside of their stores, and this offers the local

artists a great opportunity to exhibit their works. The murals are a good

exposure for the artists as well as for the business.

The arts

and culture are very much alive in Burnaby, and I'm proud to represent a

constituency that has such a vibrant and exciting art world. I thank you.

HOSPICE CARE IN VERNON

Christensen: May is Hospice Month. Yesterday my family and I participated in

the third annual Hike for Hospice in Vernon, one of a number of fundraising

initiatives conducted by the Vernon and District Hospice Society to support its

efforts to provide care and support for the dying and their families in the

North Okanagan. The hike raised $20,000.

The

society's many dedicated volunteers have been caring for people in my community

for two decades. When the society identified the need for a hospice house in

Vernon in the late 1990s, the community agreed and locally raised $800,000 of

the total $1.3 million raised to pay for the construction of the Vernon Hospice

House in its first year of operation.

Since

opening a year ago, 96 terminally ill community members have received care, and

their families have received support and counselling at Hospice. Hospice

provides a compassionate, supportive and comfortable home to live out the final

days of life while receiving quality palliative care. Hospice will also provide

temporary admission for pain and symptom management and respite for unpaid home

caregivers who, quite understandably, are exhausted in their day-after-day care

of their loved one.

The

greatest measurement of Hospice's success is the significant impact it has had

on the families it has served. Their letters comment on the home-like

environment, the compassion of the staff and volunteers, and how Hospice managed

to make a time of great sorrow and sadness for family into a beautiful

experience.

One

significant challenge that has burdened Vernon Hospice House from prior to its

opening has been a lack of financial support from government. Under the old

health region, no operational funding was available for Hospice, notwithstanding

that everyone seemed to agree that in most cases Hospice was able to provide

more appropriate care to the terminally ill than an acute care facility.

I am very

pleased that the interior health authority has exercised its new-found autonomy

to recognize the value of the service being provided by the Vernon Hospice House

and to provide some operational funding. It is a start to catching up to what my

community has long recognized — that quality palliative care is best provided

in a home-like setting with the support of loved ones and the community at

large, and that Hospice must be considered an integral part of our health care

system.

ROYAL INLAND HOSPITAL CHAPLAIN

Krueger: Royal Inland Hospital in Kamloops has a wonderful chaplain. His

name is Viktor Gundel, and by all accounts, he is the salt of the earth. Victor

is one of those rare people who really puts everybody else's needs ahead of his

own, and he's available 24 hours a day seven days a week. Doctors, nurses,

support workers, patients, families, clergy…. Everybody I know praises Victor

— well, all but one person, and that's the person who abruptly fired him the

other day.

I found out

about this the same way most people in Kamloops did, by seeing a front-page

picture of Chaplain Victor and his pregnant wife, expecting their first baby

imminently, in the Kamloops Daily News . I was shocked. As it turns out,

so was the chair of the interior health authority, who first learned of it the

same way I did. In the days since, I've heard from constituents across the

spectrum of society in Kamloops. Here are some examples: "Mr. Gundel's

input into patient care has made an enormous impact in his short stay here. I

can only say, as the director of the intensive care unit, that his position is

essential to the global functioning of our unit and that losing him is a severe

blow to us."

Another

constituent, a worker in the hospital, writes: "Health care workers do not

take care of themselves first. They put the patient and families first. Having

Viktor around allowed us to think of ourselves and have support there

immediately when we needed it. He was part of the team and is being greatly

missed."

[1415]

I've spoken

with every management level of the interior health authority about this matter.

Although there is general agreement that the decision could have been

implemented more courteously and respectfully, indications are that the decision

will stand.

Therefore,

I appeal to the government on behalf of my constituents, with whom I am in full

agreement. Spiritual care is an integral component of health services. Having a

paid chaplain in a large facility to coordinate the efforts of community clergy

and ensure patients' needs are met is a reasonable expenditure.

If we have

not spelled out to the health authorities that this will be one of our

expectations of them and that their performance will be measured, then I think

we should. Regardless of how tough their decisions have to be in any personnel

matter, this government will require courtesy, respect and kindness in all

dealings with personnel.

Mr.

Speaker: That concludes members' statements.

Oral Questions

NEGOTIATIONS WITH PHYSICIANS

MacPhail: The deal that the Premier cooked up with the B.C. Medical

Association in his living room has collapsed. Doctors are pointing the finger at

the

[ Page 3185 ]

government, and the government's pointing the finger at the doctors.

If that's

not bad enough, the Minister of Health Services said this morning that it was

now up to patients to put the political pressure on their doctors to get this

thing settled. The Minister of Health Services is putting politics into the

examination room. It is not up to patients to settle this dispute. They've

suffered enough under this government.

To the

Minister of Health Services: will he now stand up and assure patients that they

will not be dragged into the government's public relations war against doctors?

And will he tell patients what plan he has to settle this thing so that it

doesn't involve them fighting his political battles?

Hon. C.

Hansen: The memorandum of understanding that was signed about five weeks ago

developed a framework for resolving the issues around physician compensation in

British Columbia. This government put $392 million of additional money into the

budget to provide for that. The B.C. Medical Association agreed that that was

the envelope and that there would be no more on top of that.

There has

been significant progress made in the negotiations. Quite frankly, I think the

progress that has been made is a tribute to the negotiating parties on both

sides. There are some remaining issues. We have encouraged the BCMA to get back

to the negotiating table so that we can actually sort out those remaining issues

so that patient safety will not be put at stake in British Columbia.

Mr.

Speaker: The Leader of the Opposition has a supplementary question.

MacPhail: I asked what this minister is doing for patients, and he talks

about a failed negotiating strategy. This government doesn't have a plan to put

patients first. Soon they'll have an ad agency, but they've got no plan

whatsoever for how to resolve this dispute with the doctors.

Again, to

the Minister of Health Services: rather than play a game of chicken with

patients in this province, will he now agree that it was a mistake to rip up the

independent binding arbitration process — something, frankly, he supported in

opposition and he supported when he first became Minister of Health Services?

Will he agree to put independent binding arbitration back on the table so that

this dispute can be settled before patient care is disrupted?

Hon. C.

Hansen: Given the fact that this member has, every day, a whole list of

multimillion-dollar priorities that she would like to see government spend more

money on, I'm surprised, quite frankly, that she thinks government should fork

out even hundreds of millions more dollars to fund the arbitration process as

Mr. McEachern had brought it down.

We are

putting patients first in British Columbia. We are working on a negotiation

process that will allow us to resolve these issues within the framework that has

already been agreed to. From day one we made it clear that binding arbitration

was not on the table, was not acceptable. We're fully prepared to look at

alternatives to that. We put a proposal forward to the BCMA around a third-party

process for a dispute settlement mechanism to carry us into the future. Quite

frankly, we were surprised last week, given that the BCMA has not responded in

substance to what was there, that they would suddenly see this as the reason to

walk away from negotiating tables.

We want to

get back to the negotiating table. We want to get there today. We want to get

these issues resolved. Quite frankly, I think it's inappropriate for any doctor

or group of doctors in British Columbia to threaten to withdraw care from their

patients while there is still good progress being made and there is an agreement

that is there to be had. We just have to negotiate the details.

BLACKLISTING OF HOSPITAL WORKERS

J. Kwan:

This minister should have followed through with his own advice, and that is to

allow the independent arbitration process to be completed and validated. Then

perhaps we wouldn't have this dispute today.

[1420]

Tapes

released last week show that the real drive behind contracting out is to get

Sodexho and other for-profit health care companies to carry the government's war

with the labour movement. Blacklisting is a tried-and-true anti-labour tactic.

It is one we thought we'd seen the end of, until this government invited

for-profit health care outfits to the table.

To the

Minister of Health Services: will he stand up in the House today and promise

British Columbians that just because they belong to a particular union, they

won't be forced onto the unemployment line?

Hon. C.

Hansen: We do not condone blacklisting in any way, shape or form. We have

made it quite clear that as health authorities go out to do open tendering to

identify companies that can provide quality support services in our health care

sector more cost-effectively than we've been able to do up to now, they have to

go out in a tendering process that is open and that is transparent, and the

companies they choose should be companies that abide by the laws in British

Columbia and are good corporate citizens that treat their employees fairly. We

would not condone any kind of blacklisting against any particular union or group

of members in this province.

Mr.

Speaker: The member for Vancouver–Mount Pleasant has a supplementary

question.

J. Kwan:

I'm glad the minister has acknowledged that blacklisting is inappropriate. It is

not only unfair to the workers, but it is unfair to the patients who depend on

the years of experience that they bring to the jobs. X-

[ Page 3186 ]

ray and lab technicians, licensed practitioners, dietary specialists and food

service workers — these people are the backbone of our health care system. The

average health care provider whose job is being threatened has over 20 years of

experience in providing patients with top-quality care.

Will the

Minister of Health Services, then, step in today and tell health authorities

that throwing away that experience and expertise would damage patient care and

create more chaos in our health care system? Will he order them to stop now? It

is happening right now. If this government doesn't condone it, step in and say

no.

Hon. C.

Hansen: We made it quite clear to the health authorities that their

tendering process has to be open and transparent and fair to all concerned.

I have also

said that if there is any evidence that anyone has that the laws of British

Columbia have been broken around labour practices, they should bring that

evidence to the Minister of Labour, and it will be properly investigated.

SALE OF VANCOUVER

CANUCKS HOCKEY TEAM

Stewart: My question is to the Minister of Competition, Science and

Enterprise. Over the weekend it was reported that the Vancouver Canucks are in

discussion with our government on looking at options to improve the

competitiveness of the team. Can the Minister of Competition, Science and

Enterprise inform the House as to the nature of those discussions and the

directions of those discussions?

Hon. R.

Thorpe: Let me be very clear. Our government will not subsidize any business

in British Columbia. We are creating a competitive business climate here in

British Columbia so that all businesses can compete and win. Not one penny of

the money we have committed to spend on health care and education will be

diverted to any organization, including the Vancouver Canucks. Our government is

committed to creating a competitive business environment, so everyone can

compete in British Columbia and win.

Mr.

Speaker: The member for Maple Ridge–Pitt Meadows has a supplementary

question.

Stewart: With the weekend media report that the Canucks' owners are

interested in selling the team, can the Minister of Competition, Science and

Enterprise tell us whether or not he expects the Vancouver Canucks to stay in

Vancouver?

Hon. R.

Thorpe: The decision on whether the Vancouver Canucks stay in British

Columbia or not is strictly up to the Vancouver Canucks. Our commitment is to

ensure that British Columbia has a competitive business climate so that all

companies can be successful in British Columbia, be attracted to British

Columbia and win in British Columbia. Once again I want to say to all British

Columbians: not one penny of the funds that our government has committed to

health care or education will be diverted to any business, for any subsidy, in

any form in British Columbia.

[1425]

LAND USE PLANNING REPORT

Hunter: Last week the Ministry of Sustainable Resource Management released a

report that had been commissioned by the previous government. That report was to

assess the performance of land use planning processes between 1992 and 2001.

Will the Minister of Sustainable Resource Management please outline the results

of that report?

Hon. S.

Hagen: Thanks for the question.

This

independent analysis shows that there were a number of costs and benefits

associated with the previous government's land use planning efforts, including

job losses from reductions in resource extraction, reductions in the economic

base for resource-dependent communities and loss of government revenues.

This report

clearly shows that land use planning should continue, but that it can be

improved. This is exactly what our government has been undertaking to do over

the last ten months.

Mr.

Speaker: The member for Nanaimo has a supplementary question.

Hunter: So this government has been committed to managing our natural

resources through sound science and proper management.

Could the

Minister of Sustainable Resource Management tell us what actions he's prepared

to take in order to ensure that the problems outlined in the report he just

talked about are properly and adequately addressed?

Hon. S.

Hagen: As part of our core review and business planning, our government has

undertaken a number of strategic changes in land use planning, including the

smaller and more efficient tables, shorter time lines for completion, more

clearly defined objectives for outcomes, stronger provincial oversight and

broader input for first nations.

I'm

confident that these changes address the significant economic problems outlined

in the report while at the same time retaining the benefits that can result from

successful land use planning.

SALE OF VANCOUVER

CANUCKS HOCKEY TEAM

MacPhail: It did occur to me, following those questions about the Vancouver

Canucks…. To the Minister of Competition, Science and Enterprise — this is a

very specific question; it requires a yes or a no, so you can look up: will the

minister assure us that no lottery

[ Page 3187 ]

money will go in any way to the Canucks either before or after the sale of

the team?

Hon. R.

Thorpe: Apparently, the member on the other side of the House was offside

when I gave the last answer.

Let me just

tell the member that our government has committed the funds to health care and

education. We are committed to supporting health care in British Columbia. In

fact, Mr. Speaker, we have increased funding to health care by $1.1 billion in

the last ten months. In addition, my colleague and Minister of Education has

maintained funding to schools in British Columbia.

Our

government is committed, unlike the previous government, to ensuring that all

businesses in British Columbia can compete and win in a global economy.

EMPLOYMENT PROGRAM FOR

DISABLED AND MENTALLY ILL PERSONS

Brenzinger: My question is for the Minister of Human Resources.

Last week

the minister announced the new employment strategy for persons with

disabilities. A number of my constituents with disabilities are concerned by

reports that they will be forced to find employment without receiving adequate

support.

To the

Minister of Human Resources: how will the disabled see this strategy as being

any different from any other programs in the past?

Hon. M.

Coell: There are tens of thousands of people with disabilities who have

employment in British Columbia, but people with disabilities have a 50 percent

higher unemployment rate than people who don't. We've developed a strategy that

we believe will help people with disabilities enter the workforce and do the

best they can. We're going to start with earnings exemptions at $300. They'll be

able to continue with their medical benefits once they leave income assistance.

We'll be able to supply technical aids, workplace modifications, follow-up

supports and a rapid reinstatement if someone with a disability isn't able to

continue to work.

What we

want to be able to do is help people work and support them in work. People with

disabilities need that help.

Mr.

Speaker: The member for Surrey-Whalley has a supplementary question.

Brenzinger: People with mental illnesses face unique barriers and often

require specific resources to help them gain independence through employment.

Can the

Minister of Human Resources outline for my constituents how this strategy will

specifically help people with mental illness?

[1430]

Hon. M.

Coell: The desire here is to make sure the supports are there for people

with disabilities, including mental illness, so that they can come on and off

income assistance as needed. They would keep their disability status, so there

would be rapid reinstatement back onto income assistance if someone was only

able to work cyclically or part-time. The idea is to find the potential people

have to support them to reach that potential no matter what their disability is.

[End of question period.]

Petitions

MacPhail: I have the honour today to present a petition signed by Mr. Rick

Wood and 3,607 other British Columbians, who request the government to reverse

its decision to lift the moratorium on fish farm expansion. They point out that

the scientific evidence proves that current fish-farming practices, if

continued, are capable of destroying all species of wild and hatchery salmon.

Tabling Documents

Hon. J.

Murray: I have the honour of presenting the Creston Valley wildlife

management area annual report for 2001.

Orders of the Day

Hon. G.

Collins: I call committee stage on Bill 45.

Committee of the Whole House

LEGAL SERVICES SOCIETY ACT

The House

in Committee of the Whole (Section

B) on Bill 45; J. Weisbeck in the chair.

The

committee met at 2:34 p.m.

On

section

J. Kwan:

Under

section 1 there is the new definition of financial obligation to the

society, which states that it means, in relation to a client, the money that is

to be paid to the society under a legal aid contract between the client and the

society. Could the minister please advise what circumstances would cause an

individual to have a financial obligation to the society?

[1435]

Hon. G.

Plant: I think the circumstances that engage that definition are those set

out or provided for in

part 3 of the bill, which starts at

section 13.

J. Kwan:

We can canvass this issue under

section 13, or the minister can advise and

provide information to the House with respect to the circumstances in which an

individual would have a financial obligation to the society. I would like him to

give us some examples and elaborate on the question that I asked.

[ Page 3188 ]

The

Chair: Shall

section 1 pass? Member for Vancouver–Mount Pleasant.

J. Kwan:

I take it from the minister's silence that he wants to canvass those questions

then, in

section 13?

Hon. G.

Plant: The definition of "financial obligation to the society"

links to obligations that arise solely in respect of the scheme or provisions

that are in

part 3, as I understand it. I think the right place to ask about

what a financial obligation might be is in the context of those provisions.

It's not

actually a very complicated definition. Financial obligation means, in relation

to a client, the money that is to be paid by the client to the society under a

legal aid contract between the client and the society. I think, though, that the

place the issue arises in more concrete form is probably the provisions of part

J. Kwan:

I had prefaced my question by asking the minister if he wants to canvass that

under the

definitions section, which is

section 1. Or does he want to canvass it

under

section 3? That was the question. All the minister had to do was rise up

and advise.

The

follow-up question in relation to this definition, of course, would be the

consequences of not paying a financial obligation to the society. Again, I will

seek the minister's perspective. Does he want me to canvass these questions

under

part 3 or under the

definitions?

I'm

particularly interested in understanding what the consequences are of not paying

a financial obligation to the society. For example, will the society be

requiring people to sell their homes or other properties? Is that what the

"lien against land" is about under

section 14, under

part 3, in order

to pay the financial obligation? We can canvass that under

part 3. I'm seeking

the minister's preference in relation to these questions.

Hon. G.

Plant: I'm grateful for that, but I'm really in the member's hands. I'm

certainly willing to answer questions. I've already said twice that I think the

better place to ask questions about this is in the context of

part 3 where, in

fact, the phrase "financial obligation to the society" appears in the

context of some specific provisions, including sections 13 and 14 at least.

J. Kwan:

That's fine. I can canvass…. I do want to make it clear in terms of the place

where the minister wants to answer the questions, because from time to time

we've seen this. If a

section is passed in the House, we may lose the

opportunity to ask the questions. I want to be clear that I would be able to get

my answers then at the subsequent sections, which is why I'm asking the minister

on this point.

[1440]

In the

definitions section, "legal aid contract" in the bill states that it

"means, in relation to a client, the contract between the client and the

society under which the society provides legal aid to the client." This

definition did not exist in the previous Legal Services Society Act. Could the

minister please advise: what is the purpose of adding this definition?

Hon. G.

Plant: It essentially sets up the context within which, among other things,

the lien provisions may come into effect. It ensures that there will be a

contract between the society and the client. In the context of the provisions of

part 3, some of the terms of that contract may have to do with an obligation to

pay money to the society for legal services provided to somebody in

circumstances where, for example, there is a windfall or an opportunity to

recover the funds for the costs of legal services from real property that may

become available during the course of or as a result of the legal proceedings.

J. Kwan:

The example the minister used is in relation to the liens provision. Would that

be the only type of obligation and responsibilities that would be included in

this contract?

Hon. G.

Plant: I don't think it's limited to the lien situation, but we think that's

probably the most likely situation when it will be used. Part of the objective

of the bill is, in fact, to expand the opportunity for the society to engage in

cost recovery even from clients, so the framework is set up to enable that,

while recognizing that for a huge number of people who are eligible for legal

aid, there is no prospect in practical terms that they would ever be able to pay

for any of the services that are provided.

But you

know, from time to time someone who is charged with a criminal matter and that

would be eligible for legal aid might come into a windfall source of cash. In

those circumstances, my view is that the public interest in terms of providing

tax dollars to fund a defence without any possibility of recovery from the

person who now could afford to pay for their defence is pretty thin, so the bill

is intended, in some circumstances, to give the society the ability to seek cost

recovery, as I've outlined.

J. Kwan:

The minister said that is one of the examples in the liens provisions. He

advised that there may also be other circumstances. Could the minister please

advise what other circumstances?

Hon. G.

Plant: I gave the member another example of a situation where a contract

might be required to ensure that the society was in a position to recover

windfall funds that might be in the possession of someone who is accused of a

criminal offence. That's another example of the potential for the use of this

kind of situation.

[1445]

I think

it's also provided for, perhaps by implication in

section 10, the powers and

capacity — a provision which gives the society the powers and capacity of an

individual without limiting the power to determine the method or methods by

which legal aid is to be or may be provided.

[ Page 3189 ]

J. Kwan:

In the case where there's a breach of the legal aid contract between the society

and the client, what are the consequences?

Hon. G.

Plant: Well, that will depend on the terms of the contract.

J. Kwan:

We'll use the examples that the minister has brought up.

Hon. G.

Plant: The examples that I've used do not constitute a breach. In one case

we were talking about liens. The contract would presumably provide that in the

event the outcome of a matter produced an asset that was exigible, there would

be the prospect of at least registering and ultimately, perhaps, enforcing a

lien against that asset to the extent of the amount owing to the society. I

assume it would be open to the society to take proceedings to enforce the lien

if it should become necessary to do so.

A classic

example of this is the situation where, in the family law case, there's a

matrimonial home that may have hundreds of thousands of dollars of equity but no

source of income for one of the partners to the relationship. That partner may

get legal aid to help with a custody application on the basis that when the

family law matter is complete, the society would be able to recover its fees or

at least firstly secure its entitlement to fees on the matrimonial home. If, in

the fullness of time, there was no ability to actually generate the money from

some other source to ensure that the fees were paid, then presumably the society

would be in the position of being able to enforce the lien.

J. Kwan:

Are these legal aid contracts essentially meant to force legal aid clients to

pay for services? Is that the primary reason why these legal aid contracts would

be established?

Hon. G.

Plant: Well, in circumstances where legal aid clients can afford to pay for

services, they're usually not eligible for them.

J. Kwan:

Is the minister suggesting that if clients can pay for the services, they would

not be paying for legal aid services because they won't be eligible for it? So

what is the purpose of these legal aid contracts?

Hon. G.

Plant: We've already pointed out that one of the features of this act is

part 3. It gives the right to the Legal Services Society to recover financial

obligations to it. In some cases, that may include the ability to recover

obligations for services provided.

The

fundamental public-policy interest here is that we want to be sure that we

provide legal aid coverage only to those who really cannot afford it. We also

recognize that in some circumstances there may be an asset that already exists

or the possibility of a windfall in the form of cash that we don't necessarily

know enough about at the time the request for coverage is made to the society.

The society, I think, should be in a position to ensure that if as a result of a

proceeding or during the course of a proceeding, the person who received the

service actually does come into a position where they could have afforded to pay

for it, then they should pay for it.

J. Kwan:

Let me use this example. With the change of this act, a lot of the legal aid

services would actually be eliminated. I'd be tempted to use a case like a WCB

case, whereby an injured worker could, after proceeding with a case, come into

— to use the minister's words — a windfall of some moneys through winning

that case. Given the change of this act, I think a lot of the WCB cases would

not be covered by legal aid, because the resources won't be there to provide

that service.

[1450]

Let me use

this example of a case where you could have a family in a family dispute where

violence is involved, because that is the provision to which legal services

would be provided. If violence is not involved, likely, again, legal aid

services would not be provided to the family.

Let's use a

situation where violence is involved and there are children involved and custody

issues as well, and let's say it's the woman in this instance who is qualified

for legal aid. After the court case it may well be that through the custody

issues and the family asset distribution issues, the family unit — the woman

and the child — may well come into some assets in that case. Would the legal

aid contract bind that family, then, to sell their assets after the case in

order to pay for legal services? Is that an option under the legal aid contract?

Hon. G.

Plant: I think the reason why the provision deals with liens is, to answer

the member's question, that there are circumstances where it's appropriate that

the society might secure its right to prospectively, at a future point, recover

some of the costs. I don't think it's contemplated that the society would have a

contractual arrangement with a client that would, on its face, require somebody

to sell some asset.

When I

think of windfall — and I don't know if this is a good example or not — I

think of the prospect of someone accused of a criminal offence who comes and

makes an application through legal aid and discloses the fact that they have no

sources of income but, on making full disclosure, realizes they have an

obligation to disclose the fact that a relative has just died and that they may

have an entitlement to a significant amount of cash coming from the estate of

the relative. While that's not something that is a present entitlement or a

present asset of the person who's seeking coverage, it might shortly become

that. In those circumstances the society, I think, ought to at least have some

ability to think about whether it can secure the right to repayment for some of

the cost of its services against what I would say could fairly be characterized

as a windfall. Those are the kinds of things that I think are probably

[ Page 3190 ]

intended by the arrangements created not in

section 1 but in the other

provisions of the act.

J. Kwan:

I saw the minister's staff actually shaking their heads when I asked a

question about the prospective situation with a woman and a child where after

the legal aid representation, if they did come into some asset, they would not

be required to sell that asset in order to pay for the legal aid services they

received from the legal aid society. If that's the case, can the minister please

advise: where in the act does it stipulate under what circumstances a person

would have to sell the assets or the windfall? What constitutes a windfall —

under what circumstances? Where within the act does it stipulate that?

Hon. G.

Plant: We are not going to have a very successful debate if the member

spends much time commenting on the facial demeanour of the people who have

served the public of British Columbia by assisting me in this debate.

MacPhail: Oh, stop it.

Hon. G.

Plant: " Stop it" is right.

The

Chair: Order, members. Order, please. Let's confine the debate to two

members. Thank you.

Hon. G.

Plant: I think it's really offensive, frankly.

Interjection.

The

Chair: Member, let's just keep the debate down to….

Hon. G.

Plant: I've already illustrated what I think the scheme that's played out in

this act is intended to do. Of course, the question of how it might operate in

specific circumstances will depend in large measure on the way in which the

society uses the tools that are given to it under this act. It's hard to predict

the outcome of hypothetical situations, because they often do have facts that

are not necessarily part of the explanation of the hypothetical situation.

[1455]

In this

case one of the challenges, of course, in giving examples is that while I have a

pretty good idea of the range of services that the society is likely to continue

to provide, the decision specifically about the range of services they are going

to provide on a case-by-case basis is going to be a decision for the society.

What the

provisions talk about in

part 3 of the bill, which we're now debating, is making

sure that in some appropriate circumstances the society has the ability to

recover amounts that it has paid for representation of people who it turns out

actually had or may come into the ability to pay for those services. If we are

able to recover costs in those situations, then the society would have greater

ability to actually provide coverage to those people who do not ever come into a

windfall or do not have the opportunity to realize family assets that become

available during the course of a family proceeding.

J. Kwan:

Quite frankly, the

section that the minister references in

part 3 doesn't

clearly stipulate under what circumstances and what obligations a client would

have to repay legal aid services. I'm canvassing this question under the

definition

section that says: "Here's the meaning of the legal aid

contract." What are the obligations associated with these legal aid

contracts?

The problem

here is this. The government is fond of saying: "Well, don't worry. Trust

us." We've seen that, quite frankly. We've seen it in a number of

situations. We've seen the government tear up contracts when they said they

won't tear up contracts. We've seen that they've broken their word to the public

on that matter.

With the

changes in legal aid…. It is a very important set of changes that the minister

is bringing about — fundamental changes that will revamp the provision of

legal aid to the people who are in the greatest need in the province in trying

to access legal representation and trying, quite frankly, to access justice.

People who seek legal aid are the people who can't afford to get legal

representation elsewhere.

Given that

this is a new definition in the act — it was never there before — I'm

canvassing from the minister: what are the purposes of this contract, and what

are the legal obligations and responsibilities that would be included in these

contracts? Quite frankly, the minister has not been able to answer that question

in a clear, substantive way. He has not identified clearly under what

circumstances people would have to enter into these contracts and what those

consequences are.

Hon. G.

Plant: I appreciate this question.

In fact,

the society has a long tradition of making people sell things before determining

whether or not they'll provide coverage. If the asset is liquid and if the

society is of the view that it's not essential, then the society may say:

"You've got an asset you could sell. You should sell it and pay for your

own legal advice."

What the

society has not had the ability to do is secure through a lien the entitlement

to realize at a later date some amount for the cost of the services that have

been provided. In the case of, for example, a family home the society's view has

been and will, I'm sure, continue to be that it won't make somebody sell their

home in order to make sure that they get access to legal representation.

These

things are a part of current practice already, and what is going to happen in

the future as a result of the provisions of

part 3 is that the society will have

the ability to secure to some extent, in some cases, future recovery of fees

where there is an appropriate asset that can be liened.

Section 1

approved.

On

section

[ Page 3191 ]

J. Kwan:

Subsections (1), (2) and (3) under

section 2 are identical to the original act,

but subsection (4) is a new addition to the act. This subsection allows the

society to carry on "a business, trade, industry or profession." I

believe that this reference relates to the society's ability to generate

additional revenue through business initiatives and fundraising. Subsection

(4) then goes on to state: "…the society must not distribute any gain, profit

or dividend or otherwise dispose of its assets to a member of the society

without receiving full and valuable consideration."

Can the

Attorney General provide an example of the types of business, trade, industry or

profession that the Legal Services Society may engage in to raise funds for

legal services?

[1500]

Hon. G.

Plant: One opportunity that has been identified to me is the possibility of

selling some of the intellectual property that they have in case management and

case management systems.

J. Kwan:

Would the Legal Services Society raise funds by providing legal services to

individuals who are capable of paying the full cost of legal services provided

by the society?

Hon. G.

Plant: I think it would be difficult to imagine how they could do that,

given the basic objects of the society.

J. Kwan:

Well, that's precisely the point. Why I asked the question is to make sure it is

not the case that under this provision, the society would be able to sell their

services to people who could pay for legal aid services. I fear doing that

detracts from the scarce resources that will be available within the society to

provide services for people who are in greatest need.

I want to

be clear with respect to what the intent is with this government. It is never

clear what the intent is. We often find ourselves reading between the lines to

find out what the intent of the government is. If the minister says this is

hypocritical, if that is the case, then I assume — although I can't just

outright assume — that is the answer from the minister: it is not the intent

of this act to allow for the Legal Services Society to sell legal aid services

to the people who could otherwise pay for it.

Hon. G.

Plant: Well, remembering that the objects of the society are to assist

low-income individuals to resolve their legal problems and to facilitate access

to justice for low-income individuals, and the other objects that are set out in

section 9, I think the primary focus of the society will definitely be on the

provision of legal aid services to people who can't afford them.

But let's

be clear. As I read the model, the society created by this act, if the society

were to use its own resources to provide legal services to people who could

afford to pay for them, there would of course be no drain on the public purse

whatsoever from that activity.

Then, if by

doing that, they were in a position where they actually charged more for the

services than it cost to provide them, they would be in a position where they

had earned income from that activity. Having earned that income, they would then

be required to devote that income to the provision of legal services to

low-income individuals.

Although I

don't think the act is set up to contemplate that, the society would become a

for-profit law firm in addition to its not-for-profit primary objectives. The

example that the member gives, if it were permitted by the act, would in fact

increase the range of services that could be made available to low-income

individuals.

J. Kwan:

Well, quite frankly, there's no guarantee of that. There's no guarantee of that

necessarily. It may well be that the resources that are available within legal

aid would be drained from providing legal aid to the people who need it the

most.

I'm not

necessarily comforted to say that if you do sell your services, you can make

more money, and then, by making more money, you can actually provide the

services to the people in greatest need. It takes a lot of energy to invest and

to develop revenue-making schemes. By doing that, it may take away all or

substantively all the resources available within the society to provide for

services to individuals in British Columbia.

So there's

no guarantee that's the case. Given the minister's comment, I have no comfort

whatsoever that it is not the intent of the act to actually detract from the

resources of the society in providing legal aid to the people who are in

greatest need.

[1505]

Hon. G.

Plant: If I may, I think it's important in this context to point out that

under

section 10(3), the bill provides that the society must not engage in an

activity unless it does so without using any of the funding provided to it by

the government. Or if it is using funding provided to it by government, then it

has to do so in accordance with the act, the memorandum of understanding, the

regulations and the budget. All of those things in part (

b) will be directed

entirely to the provision of what are properly called legal aid services —

that is, services to people who could not otherwise afford them.

I think the

member for Burnaby North has an introduction.

Introductions by Members

R. Lee:

In the House today, visiting from my constituency, are 27 grade 5 students from

St. Helen's School. They are accompanied by their teacher, Mr. Ramalho, and five

parents: Ms. Cathro, Ms. Petrollini, Ms. Rinaldo, Ms. Lee and Ms. Mobelio. Would

the House please make them welcome.

[ Page 3192 ]

Debate Continued

J. Kwan:

While I'm glad that the minister pointed under the section, actually…. On the

one hand the minister says that the society must not engage in activities unless

it does so without using any of the funding provided to it by the government or

does so in accordance with the act, the regulations, the memorandum of

understanding referred to in subsection (21) and money for that activity is

available within the budget approved by the Attorney General under

section 18.

The

Attorney General is actually going to be, quite frankly, interfering with the

budgeting process of the Legal Services Society. It may well be within the

government's agenda to engage in providing services otherwise to people who are

in greatest need, because for this government the need is greater in terms of

generating revenue as opposed to providing the services. It may well be that

that's the perspective in the regulations or in the memorandum of understanding

or whatever the case may be. That information is not before the House for

examination by the members of this House or by the public.

canvassing this question, in trying to understand what the intent of the act is,

I want to be clear that the intent of the act is not to detract from services

and resources of the Legal Services Society for people who are in the greatest

need in an attempt to generate revenues for the government.

Hon. G.

Plant: In fact, the intent of the act is to give the society some

revenue-generating tools so it can expand the range of services it provides to

people in British Columbia who can't otherwise afford to pay for a lawyer.

J. Kwan:

Provided that it is understood it does not detract from the resources of the

society in an attempt to make money, so that it does not detract from resources

of the society to provide legal aid services to people in the greatest need, in

an attempt to make money. That, I believe, has to be clear.

Hon. G.

Plant: I don't what the member means by "detract," and I don't

know what the member means by "resources." But there are people in the

Legal Services Society who have been working hard over a number of years to

develop some systems for how they manage case flow. They get calls from time to

time from people who say: "Hey, you guys are experts in this." People

from other jurisdictions call up and say they'd like to have the opportunity to

share in this skill in the systems and the software, I think, that goes along

with that, which may have been developed by the society for all I know. The

society's view on that is that we have developed something here in British

Columbia, with public dollars, that may have a value. We think we should be in a

position, on behalf of the public interest of British Columbia, to see if we can

sell that to the people who are willing to pay for it in other jurisdictions and

to use money from that activity to provide or expand the range of services that

they could otherwise provide beyond the range of services that they might be

able to provide solely on the basis of the grant they receive from the province.

Everything

about this is about enhancing the ability of the society to in fact deliver the

services that are required across as broad a range of the spectrum as possible.

In providing the society with the power to carry on a business, trade, industry

or profession as an incident to its fundamental purposes, government's intention

is simply to ensure that the society is in a position where it could take

advantage of those opportunities.

[1510]

I am

certain that it would be able to do so without in any way detracting from its

main responsibility of continuing to establish and administer a legal aid system

in British Columbia. In fact, my view is that it will be able to enhance the

delivery of legal aid services in British Columbia if these revenue-generating

tools are made available to it.

Sections 2

and 3 approved.

On

section

J. Kwan:

Section 4 deals with the change to the representation on the board of directors

within the Legal Services Society. The original act had 15 directors on the

board. This bill, Bill 45, reduces the number of directors to nine. The

reduction amounts to maintaining the same number of government appointees yet

eliminating appointees from the Association of Community Law Offices and the

native community law offices. Could the minister please advise why the number of

directors was reduced?

Hon. G.

Plant: In my view, 15 is too big a number for an organization to operate

effectively, particularly given the responsibilities of this organization. It's

not, maybe, a general rule, but it's a rule that I think applies in this case. I

think nine is a good size of board for the responsibilities that this board has.

J. Kwan:

Why are the two organizations that provide front-line legal aid services no

longer guaranteed participation on the Legal Services Society board — the

Native Community Law Offices Association and the Association of Community Law

Offices?

Hon. G.

Plant: Well, government funds, substantially, all of what legal aid does, so

I think it's legitimate that government have the opportunity to appoint some

board members. There's also a need to ensure that the society has some degree of

independence, particularly in relation to the potential conflict that could

arise in cases where legal aid is provided to somebody in a dispute, like a

criminal charge, where the Crown is on the other side. I think that's when the

claim that the society…. Let me put it this way. I think that's when the claim

that the determination about the provision of

[ Page 3193 ]

counsel needs to be made by somebody other than government directly has some

force.

The Law

Society, as a representative of the legal profession in British Columbia,

appeared to me to be a body that can appoint directors representing the Law

Society's interests in these matters. That ensures that there are independent

voices on the board. Of course, the board is established as the board of a

society which will become itself independent and is already independent.

With

respect to why we put together the board without representation from the two law

office associations that the member refers to, I think the general thrust of the

reorganization of the society requires a reconfiguration of service delivery

that needed to be made possible. This new board will make that possible.

To be

frank, I have long had some concerns about the fact that one-third of the Legal

Services Society board, under its former configuration, represented people who

had a direct interest in obtaining funding from the society. You had people who

were on the board essentially asking the board to provide funding to their

organization. I think that's not the right way to constitute a board. I think

the board as constituted by this bill will in fact represent and protect the

public interest in the best way possible.

One of the

great things, of course, about

section 4 is that for the first time we have

introduced appointment criteria for those who will be appointed to the board.

Those are set out in subsection (5).

J. Kwan:

The 2002-03 service plan for the Legal Services Society states that one of the

goals of the organization is to "work with aboriginal people in the

communities to develop and promote innovative and effective methods to deliver

legal services and legal education." How does removing the guaranteed

representation of native community law offices support this goal?

[1515]

Hon. G.

Plant: With respect, I'm not sure that it has anything to do with it. I

commend the society for having that goal, and I'm certain they'll work hard to

achieve it.

J. Kwan:

Well, with all due respect, I disagree. In the previous act, it stipulates

representation from the broader community and particularly front-line workers.

In particular, it stipulates representation from the native community law

offices. The people who have direct contact with the clients, who are faced with

the need for representation…. That voice is no longer guaranteed to be there

in the representation.

As I

mentioned during second reading debate of this bill, the government no doubt

will pay lip service to representation, but the fact is that the act changes

that guarantee to ensure that there is full representation from the broader

community. I think it's a mistake to do this. It takes away, in my own view, the

broader community representation that is needed within the board.

The

original act also guarantees that at least two out of the five directors

appointed by government would not be lawyers. The bill does not place any

stipulations upon the appointees selected by the government. Again, why has the

government removed the provision that ensures that at least two board appointees

would not be lawyers? Isn't it important to provide people who are not from the

legal profession an opportunity to participate in the process of setting

priorities for legal aid in B.C.? That is often the case with many of the other

professional boards. Often it is the case that lay people need to be at the

table, because they bring a different perspective in terms of the need for

representation and a different set of opinions from those who are directly in

the profession.

Hon. G.

Plant: What I believe is important is that the prospective appointees to

this board would provide to the board as a whole knowledge, skills and

experience in a number of areas including business, management and financial

matters of public and private sector organizations; law and the operation of

courts, tribunals and alternate dispute resolution processes; the provision of

legal aid; the cultural and geographic diversity of British Columbia; and the

social and economic circumstances associated with the special legal needs of

low-income individuals.

I think if

both the Law Society and the Attorney General recommend for appointment people

who have those qualifications, then we'll have a board composed of people who

are able to carry out the purposes and objects of the society in the best

possible way. That's why those appointment criteria have been expressly provided

for in subsection (5) of

section 4.

J. Kwan:

The subsection does talk about the consideration of other factors, such as

knowledge, skills and experience with cultural and geographic diversity,

business, the law, legal aid and social and economic circumstances of low-income

individuals, but the act doesn't outright stipulate that broad representation.

It doesn't guarantee that there be geographic representation, that there be

cultural diversity, that there be lay people within the board outside of people

who are from the legal profession.

Formerly,

the act actually spelled out more specifically who needs to be at that table.

Now that is not the case. One can only assume that while that is a general goal,

there is no guarantee that that representation will be there on the board. Why

would the government take away that goal? If it is the case that the government

wants to ensure that there is broad diversity in the representation, why not

include it in the act and stipulate the numbers of representation reflecting

that diversity?

Hon. G.

Plant: While the former act may have provided, for example, for the

appointment of lawyers to the board, it did not make any requirements with

respect to the qualifications or experience of those lawyers

[ Page 3194 ]

in relation to matters like legal aid. I think we've taken a step forward

here in

section 4 by focusing on the qualifications of the prospective

appointees and enumerating a pretty comprehensive list of those qualifications.

[1520]

The

critical issue, I think, for the purpose of protecting the public interest is

whether you have people on this board who know something about how to manage

public and private sector organizations, who know something about law and the

operation of courts and alternate dispute resolution processes. I think the fact

that that phrase — alternate dispute resolution processes — is there is an

important step forward. It's important that the board members know something

about the provision of legal aid and that they have knowledge, skills and

experience in relation to the cultural and geographic diversity of British

Columbia and the social and economic circumstances associated with the special

legal needs of low-income individuals. I expect that the board will continue to

contain a mix of lawyers and non-lawyers, but that will be up to the appointing

bodies.

What's most

important in my view, from the perspective of protecting the public interest, is

that the people that are appointed have real qualifications. What subsection

(5) section 4 does is bring those qualifications into this statute for the first

time.

J. Kwan:

Well, the previous act, contrary to what the Attorney General suggests, actually

stipulates that two of the five board representatives must not be lawyers.

That's clearly stipulated. It also clearly stipulates that there be

representation from the Native Community Law Offices Association of B.C. and

that there also be two representatives from the Association of Community Law

Offices of British Columbia — people who do have expertise and the skill set

and the knowledge in the areas that the minister talks about with respect to

issues around the need for representation for their clients, because these are

the individuals who deal with the clients on a day-by-day basis.

Who would

know better the needs of the people in the community than the people who are

front-line workers? That's what these individuals are; they're front-line

workers. They have the skill set, they have the knowledge, and they have the

experience on a day-by-day basis. For the Attorney General to even question

their knowledge and skill set, quite frankly, behooves all of us….

Of course,

I'd be remiss if I didn't point out, as well, that the majority of the people

who are to be appointed to the board are people that the government will select

— not chosen from the people in the profession. The majority of them will be

chosen by government. Therefore, they're government appointees, individuals that

will aid in the bid of the government's perspective to the point where the act

— and we'll go into that matter in a little while as well — directs that

direct opportunity for the government and the Attorney General to interfere in

the independence of the Legal Services Society in their efforts to establish

their budget and to allocate their resources and so on.

Quite

frankly, the independence of the board is being compromised, the diversity of

the board is being compromised, and so, too, is the broader representation that

is needed in terms of independent government appointees. That, with the change

of this provision of the act, is being compromised.

Hon. G.

Plant: Well, I have this looming feeling that the member and I are not going

to agree about this particular thing. Let's be clear. In the existing act there

is no requirement that the appointees to the board know anything about private

or public sector organizations. There is no requirement that the existing

appointees know anything about the provision of legal aid. There is no

requirement that they know anything about the cultural or geographic diversity

of British Columbia. There is no requirement that they know anything about the

social and economic circumstances associated with the special legal needs of

low-income individuals.

Yes, the

act as it now stands does contain provisions that say that some of the

appointees by cabinet, for example, must not be lawyers. The issue is broader,

though, than simply whether someone is a lawyer or is appointed by a particular

agency or another. The issue is whether the people that we appoint actually come

to the position with some knowledge, skills and experience in the area that they

are going to be asked to do some work around — namely, the provision of legal

aid services.

[1525]

I think the

fact that this new board will be composed of people recommended and appointed on

the basis of a consideration of their qualifications is a step forward, and I

may say that I think it's a step forward not just in relation to the governance

of the Legal Services Society. But as government generally moves towards the

introduction of appointment criteria for boards and agencies, I think we are,

generally speaking, going to improve the calibre of service provided by those

boards across government. I think that's a good step forward.

J. Kwan:

Earlier in the discussion of

section 4, "Board of Directors," the

Attorney General said that the native community law offices and the community

law offices shouldn't be on the board, because they receive funding from the

board. Lawyers who are members of the Law Society also receive funding from the

board, as some lawyers do legal aid work and receive funding for this work

through government. So, the argument suggesting that receiving funding from the

Legal Services Society creates a conflict only applies to the community and

native community law offices and does not extend to Law Society members who

receive government funding that provides for legal aid.

It's, quite

frankly, a double standard that is being put forward by the government, similar

to the Minister of Education's on the school planning council perspective. The

minister had an illogical rationale on the notion of conflict, to whom it

applies and at what stage. We see now the same argument being used here.

[ Page 3195 ]

Quite

frankly, what the change of this act does, in my view, is eliminate the ability

of the communities, through the associations, to appoint members to the board

and to prevent broader community representation on the board. One would have

thought this was a step forward in the previous act, when it was brought about

to ensure there was broader community representation. Now that is gone. That has

been taken away, because the minister, under Bill 45, does not require the

representation. In fact, that representation is specifically eliminated from the

act.

Hon. G.

Plant: Let me explain why I think there's no force to the member's critique.

understanding is that you cannot be a member of the Law Society and a member of

the legal aid board if you are in fact receiving any income from legal aid work.

I think there may be a minimum threshold of $500 or $1,000 or $2,000 that you're

allowed to do a year, but actually the people who are lawyers, on the Legal

Services Society board, cannot for their income depend upon legal aid work. The

spectre of conflict or a double standard that the member spoke about does not in

fact exist.

[1530]

Section 4

approved on the following division:

YEAS — 61

Falcon

Coell

Halsey-Brandt

Hawkins

Whittred

Cheema

Hansen

Bruce

Santori

Barisoff

Nettleton

Wilson

Masi

Lee

Thorpe

Hagen

Murray

Plant

Collins

Clark

Bond

de Jong

Nebbeling

Stephens

Abbott

Neufeld

Coleman

Chong

Penner

Jarvis

Anderson

Orr

Harris

Nuraney

Long

Chutter

Mayencourt

Johnston

Bennett

R. Stewart

Hayer

Christensen

Krueger

Locke

Bhullar

Wong

Bloy

Suffredine

MacKay

Cobb

K. Stewart

Visser

Lekstrom

Brice

Sultan

Hamilton

Sahota

Hawes

Kerr

Manhas

Hunter

NAYS — 2

MacPhail

Kwan

On

section

[1535]

J. Kwan:

I just want to put on record that the composition of the executive committee has

been changed from five members to three under this section. This change, of

course, is necessitated by the reduction of the numbers of the board from 15 to

nine. I just want to put this on record.

colleague and I voted against the previous

section and the reduction of the

numbers of the representation and composition of the board. It follows that with

that change, the executive committee would also need to reduce in size. However,

because we have voted against the reduction of the board's size, if that change

wasn't in place, then naturally we would not be in support of the executive

committee. Because the previous

section did pass with the majority of the

government, we would not necessarily vote against this just because it is to be

consistent with

section 4.

Sections 5

to 7 inclusive approved.

On

section

J. Kwan:

Could the minister please advise what prompted the government to introduce this

section in the act? The previous act made no mention of preventing legal

proceedings against the society. What type of legal proceedings is this

legislation meant to prevent?

Hon. G.

Plant: For the information of the member, the size of the executive

committee is not limited to three under

section 5. I don't understand what she

was saying there. The section, quite literally read, does not limit the

executive committee to three. It may make for an executive committee with three,

but it could be the chair plus eight other directors.

Personal

liability protection,

section 8. This

section protects the LSS board and staff

as individuals acting within the scope of their duties and their powers under

the act. It does not protect individuals whose actions are in bad faith, nor

does it absolve the society of vicarious liability. It ensures that there are

remedies available to a wronged party who may have a cause of action against the

society. We think it will reduce the insurance costs of the society.

Generally

speaking, this is pretty consistent with the provisions in at least some other

provinces and how they deal with their legal aid plans. More importantly, it's

also consistent with approaches taken through a number of agencies across

government. The goal here is to ensure that any wrong done basically on behalf

of or in the name of the society is a wrong for which the society should be held

accountable.

J. Kwan:

Would it include the prevention of legal proceedings against the society where

the society has no capacity, no resources, to provide legal aid to people who

are in need of legal aid? Would that prevent

[ Page 3196 ]

legal proceedings from taking place because of this

section of the act?

Hon. G.

Plant: I don't want to be taken as answering that question or not answering

it. This

section deals with a claim made against the executive director, a

director, an officer, an employee or a trustee of the society. It does not deal

with claims against the society.

J. Kwan:

What type of legal proceedings, then, is the minister envisioning? Would it be

personal liability issues? Is that the sole purpose of this

section of the act

on personal liabilities for individuals working with the society, like the

executive director of the society as an example?

[1540]

Hon. G.

Plant: I don't know that this was put here as a result of any particular

projection of any specific kind of risk. This was actually put in because it's

consistent with many philosophies of corporate governments in the public sector

and also in the private sector in some cases. If an agency does a wrong, that

would be recognized as a legal wrong, and the agency should be held liable. If

someone who's an employee of the agency is joined in the action, it usually

doesn't help the plaintiff in any significant way to add those people.

More

importantly, I think we have an obligation to ensure that when the people who

work for public agencies like the Legal Services Society are, broadly speaking,

acting within the scope or the intended scope of their duties, they should have

some level of assurance that if someone were to commence an action for whatever

reason, the person would, generally speaking, be required to sue the society. Of

course there are exceptions to that. Those are provided in the subsections of

section 8. I'm told that this general protection was in fact requested by the

previous board.

Section 8

approved.

On

section

J. Kwan:

Section 9 deals with the objects of the society. In comparison to the previous

act, there are substantive changes with respect to the objects of the society.

The

previous act stipulated clearly that poverty law is to be provided by the

society. That was a clearly stipulated object within the mandate of the Legal

Services Society. However, with the change in this act, that object is no longer

in place. It's now deleted. I think that is substantive in terms of the changes

to the representation.

The

previous act, in my view, set out a minimum level of service that the society

was required to provide to British Columbians. Could the minister please advise

why Bill 45 does not include a similar

section outlining the society's minimum

obligations?

Hon. G.

Plant: The society has the objects stated in

section 9, which are to assist

low-income individuals to resolve their legal problems and facilitate access to

justice for low-income individuals, to establish and administer an effective and

efficient system for providing legal aid to low income individuals in British

Columbia and to provide advice to the Attorney General respecting legal aid.

It's to be guided by the principles set out in subsection (2).

When we

look at the society from the perspective of government, it will be, I think,

government's continuing expectation that the society be responsible for ensuring

that people who would be entitled to legal representation as a result of the

application of Charter principles would in fact be provided with that

representation by the society.

In effect,

the member is asking that the act state what I suppose could be described as a

tautology. The obligation to fund arises in certain circumstances by virtue of

the constitution as interpreted by the courts. The purpose of the society, in

large measure, is to ensure that government has available an agency that will

largely discharge that obligation on government's behalf.

[1545]

J. Kwan:

Bill 45 mentions only low income as a reason that an individual would qualify

for legal aid services. The original act requires that individuals facing prison

time, either through criminal or civil proceedings, be provided with legal aid.

Does this mean, then, that legal aid is no longer accessible for people involved

in legal proceedings where the penalty may be imprisonment?

Hon. G.

Plant: The imprisonment test is a basic test, I'm told, across the country.

I expect the society will fund legal aid requirements in circumstances where

persons aren't charged with a criminal offence that could lead to the

individual's imprisonment, subject to the other important criteria, including

ability to pay and things like that.

Of course,

as the member knows, the society as it now exists and as it was operating prior

to the commencement of the current fiscal year did not, in fact, provide funding

to all persons charged in criminal proceedings that could lead to the

individual's imprisonment who were otherwise eligible. In fact, government

itself directly funded legal aid to persons charged in criminal proceedings that

could lead to their imprisonment, in some circumstances, through the process

usually referred to as a Rowbotham application.

What we're

trying to do here is in fact create a society that has broad objects and to work

with the society to ensure that it understands and implements the obligations

that lie on the government to provide service in the cases I've talked about,

where the constitution as judicially interpreted requires that service be

provided but also in a broader range of services. To some extent, government's

ability to provide that broader range of services turns on the financial

circumstances of government.

[ Page 3197 ]

From the

society's perspective, I think the society will always want to be in a position

to try to use the dollars it has as efficiently as it can to reach as broad a

range of clients and circumstances as is possible, subject to some of the limits

that are provided for in other parts of the bill.

J. Kwan:

The current Legal Services Society Act guaranteed individuals involved in

domestic disputes access to legal services. Why doesn't Bill 45 guarantee legal

aid access to individuals in domestic dispute situations?

Hon. G.

Plant: We've taken the approach that the society is there as the vehicle to

provide assistance, broadly speaking, to low-income individuals to resolve their

legal problems and the other objects I've already quoted that are in

section 9.

The society, then, is set up with the capacity and the purpose and the objects

of ensuring that it can do as much as it can possibly do within the financial

circumstances that apply to it. In fact, the act goes a bit further than the old

act by expanding the range of services that can be provided and in that respect,

perhaps, expanding our conception of legal aid so that it embraces alternate

dispute resolution. It embraces a broader range of justice reform initiatives

that I think can assist in providing access to justice as a whole. Of course, in

doing that, there is a need to be mindful of financial limitations.

The kinds

of situations that the member refers to will always, I think, be a high priority

for the Legal Services Society and in the three-year service plan for my

ministry. What we contemplate will be available for funding for the Legal

Services Society over three years…. We believe the society will, in fact, have

the resources that will allow it to provide full coverage in domestic disputes

where there is a risk of violence.

J. Kwan:

Will an individual still be guaranteed legal aid if their legal problem

threatens their livelihood and their ability to feed, clothe and provide shelter

for themselves or their dependents?

[1550]

Hon. G.

Plant: I expect that, to a very real extent, the answer to that question

will turn on the availability of the dollars required to fund that service. As

the member knows, because she and I have debated at some length in the estimates

debate, I expect that over the next three years, in the service plan that has

been approved, there will certainly be a much more limited access to civil legal

aid.

J. Kwan:

Well, then the short answer is no.

Will an

individual be guaranteed legal aid if the individual's legal problem threatens

his or her family's physical or mental safety or health?

Hon. G.

Plant: Well, it depends on the nature of the problem. Of course, it also

depends on the terms of coverage that the society establishes for the services

it intends to provide.

I think the

society will have — it already does but is working on probably revising — in

effect, its business plan, its plan of operations, the range of coverage that it

expects it will be able to provide. While it will deal with applications for

coverage on a case-by-case basis, I expect it will do so from the basis of

certain broad principles.

To give an

example in the mental health area, we expect the society will provide legal

representation, at least at some review hearings, for clients who are

involuntarily detained under the Mental Health Act and also at some B.C. Review

Board hearings for clients found unfit to stand trial or not criminally

responsible for crimes because of a mental disorder. That might be the kind of

thing that was formerly contemplated by the provisions of

section 3 in the

existing bill.

J. Kwan:

Well, with all of the words of the minister, it comes down to this one issue. It

is about resources. What we have seen this government do, of course, is cut

legal aid funding substantively — 38.8 percent.

With that,

we see the change in the act under the objects of the act. In the original act,

the objects

section included a description of the type of legal aid services

that the society was obligated to provide for citizens. Bill 45 does not contain

a similar section.

Let me just

read into the record what the previous act said in this regard: "The

society must ensure for the purposes of subsection (1)(

a) that legal services

are available for a qualifying individual who meets one or more of the following

conditions: (

a) is a defendant in criminal proceedings that could lead to the

individual's imprisonment; (

b) may be imprisoned or confined through civil

proceedings; (

c) is or may be a party to a proceeding respecting a domestic

dispute that affects the individual's physical or mental safety or health or

that of the individual's children; (

d) has a legal problem that threatens (

i) the individual's family's physical or mental safety or health, (ii) the

individual's ability to feed, clothe and provide shelter for himself or herself

and the individual's dependents or (iii) the individual's livelihood."

This

section is very important as it ensures that people in the aforementioned

circumstances will be provided with access to legal aid services. The current

legislation fails to clearly stipulate the minimum legal aid requirements.

Bill 45,

section 21(2)(b), discusses a memorandum of understanding between the Legal

Services Society and the Attorney General. It is possible that the obligatory

legal aid services may be included in this memorandum. Even if this is the case,

the obligatory legal aid services requirement would not be entrenched in the

act.

In my own

view, I don't think that will happen, because it is the same Attorney General

who is cutting the resources to legal aid so that they can continue to provide

these services. It's the same Attorney General who has cut 38.8 percent off the

legal aid budget. So,

[ Page 3198 ]

do I have any faith in the Attorney General coming forth with a memorandum of

understanding and ensuring that legal aid services would be provided to all

British Columbians who need it? The answer is no.

[1555]

Further to

that, if that is the intent of the government, why then would the government

change this very important

section of the act under Bill 45? Why would they do

that? Why don't they just leave in place this

section of the act, which is the

objects of the society, which is essentially the mandate of the society? In my

own view, the most important piece, of course, is making sure that legal aid

services are provided to British Columbians who are in need. In the area of what

is now termed as poverty law, that is completely erased from the objects of the

act under Bill 45.

Mr. Chair,

for that reason I will be voting against the changes as proposed under this act,

Bill 45.

[1600]

Section 9

approved on the following division:

YEAS — 61

Falcon

Coell

Halsey-Brandt

Hawkins

Whittred

Cheema

Hansen

Bruce

Santori

Barisoff

Nettleton

Wilson

Masi

Lee

Thorpe

Hagen

Murray

Plant

Collins

Clark

Bond

de Jong

Nebbeling

Stephens

Abbott

Neufeld

Coleman

Chong

Penner

Jarvis

Anderson

Orr

Harris

Nuraney

Long

Chutter

Mayencourt

Johnston

Bennett

R. Stewart

Hayer

Christensen

Krueger

Locke

Bhullar

Wong

Bloy

Suffredine

MacKay

Cobb

K. Stewart

Visser

Lekstrom

Brice

Sultan

Hamilton

Sahota

Hawes

Kerr

Manhas

Hunter

NAYS — 2

MacPhail

Kwan

section

J. Kwan:

Section 10, as I understand, gives the society the capacity of an individual;

yet the original act gives the Legal Services Society the powers and capacity of

a natural person. Could the minister please advise what the difference is

between the capacity of an individual and the powers and capacity of a natural

person?

Hon. G.

Plant: This provision takes advantage of the opportunity presented by the

fact that we're reforming the act to update the language. There is no

substantive difference.

[1605]

J. Kwan:

Earlier we touched on the question around commercial activities that would be

considered by the Legal Services Society inside and outside of B.C. The minister

gave an example in terms of expertise that could be sold. Could the minister

please advise what other types of commercial activities the government has in

mind?

Hon. G.

Plant: Well, actually, the government doesn't have these activities in mind.

It's the society that does. It may perhaps involve selling literature or other

kinds of intellectual properties developed over the course of the years and that

it may continue to develop as it does its work.

[R. Stewart in the chair.]

J. Kwan:

Would it include the selling of public legal education materials?

Hon. G.

Plant: There is the possibility they might do that. They might sell that

kind of material to people who don't qualify for legal aid. Of course, there

will also be a public legal information and education program available to

ensure that people who do qualify for legal aid get access to information and

education.

J. Kwan:

Could the minister please advise where the act stipulates the selling of the

materials — as an example, public legal education materials — to people who

qualify and that they would not be charged?

Hon. G.

Plant: Well, I'm not sure if I understood the member's question. One of the

ways in which the society will provide legal aid is by providing people with

public legal education and information. The provision of that service to people

who would not be able to afford to pay for the information is the kind of thing

that I think the Legal Services Society should be doing. That's why this bill

actually expressly contemplates that they'll do that very thing. If someone

comes and needs some information about an issue that may relate to a potential

legal problem they face, I think the society will be providing that information

to them, particularly to those who would qualify on the basis of income levels,

without requiring them to pay for it.

J. Kwan:

What about in the instance where someone is not qualified for legal aid, not

because of the financial criteria but because it's a service that legal aid no

longer provides because of the lack of resources

[ Page 3199 ]

from government to provide that legal aid service to that individual? Would

they be charged for the legal education materials?

Hon. G.

Plant: Let me illustrate what I think might happen here. I must admit that

this is purely speculative, because it's up to the society. The society may

decide that it has already developed materials that are pretty helpful in terms

of informing people about what their rights are in some areas, and the society

may decide to see if they can source opportunities to sell those materials in

bookstores. At the same time, the society will be in the business of ensuring

that it provides a program of legal aid.

section

11 points out, the society is expressly empowered to provide legal aid by any

method it considers appropriate including, without limiting this, the services

enumerated in subparagraphs (

a) through (

e) of subsection (1), one of which is

by providing public legal education and information.

J. Kwan:

Section 10(3)(

a) and (

b) of the act stipulate that "the society must not

engage in an activity unless it does so without using any of the funding

provided to it by the government, or it does so in accordance with this act, the

regulations and the memorandum of understanding referred to in

section 21 and

money for that activity is available within the budget approved by the Attorney

General under

section 18."

[1610]

This is new

in this act. Formerly, in the previous act it was not required that budgets be

approved by the Attorney General in this way. This, in my view, is a direct

interference by the government into the independence of the Legal Services

Society. Now the work of the society must be approved by the Attorney General

and within the budget which the Attorney has stipulated. Of course, we know the

Attorney has cut the legal aid budget by 38.8 percent — or will be cutting it

over the next three years. Therefore, the work of the Legal Services Society is

going to be severely curtailed as a result of this government's interference in

the Legal Services Society's work.

The

section

also touches on the government or the society, if you will, charging clients for

legal aid. I have a fundamental problem with this from the point of view that

the clients who will qualify for legal aid are people who are already faced with

financial difficulties. That's why they're applying to legal aid when they're

faced with a legal barrier. That's why they're applying to legal aid for legal

representation. If they were able to pay for it themselves, they wouldn't

qualify for legal aid. The current financial eligibility tests are already very

stringent, yet it makes the provision under this

section for the society to

recover contributions from the client towards the cost of legal aid, so I would

have difficulty with this

section as well.

As I

mentioned, people who are qualified for legal aid are already people who don't

have financial resources elsewhere to provide for legal aid services. That's why

they're there; that's why they're eligible. For the government to want to charge

them and to recover costs from these clients — who are, in my view, the

poorest of the poor — doesn't make any sense. It goes contrary, I think, to

the purpose of legal aid, which is to provide legal aid services to the people

who couldn't otherwise afford it.

Hon. G.

Plant: Actually, what this scheme does is create the possibility for the

society to expand the range of services it provides. I have lost track over the

years of the number of lawyers I've talked to who say: "You know, there are

cases that are sort of in between that point where clearly they meet the

existing eligibility criteria and must be afforded full coverage without any

attempt to recover and, on the other hand, at the other extreme, people who earn

enough money to pay full freight for the legal services they require."

There are many cases in a grey area in between, where people could in fact make

some modest contribution towards the total cost of delivering the service they

require but could not pay for all of it.

In fact, as

the society evolves over the course of the next few years, my hope is that the

society will look at this grey area and see whether there are situations where

it could in fact provide some level of service to people who are probably above

the income level that currently exists for eligibility thresholds and yet, of

course, can't pay for all of the services. The society needs the tools to adjust

to particular cases where it says: "You know, we think we can go half the

distance with you. You put half; we'll put half." That way, there's access

to justice for an individual who would not, on the conventional approach we

follow traditionally, have access, because it's virtually all or nothing in the

current model.

I think

this is a great provision as we move forward, particularly when we look at

subsection (3), which the member referred to a few minutes ago. Subsection

(3) also opens up the ability of the society to become more creative in the work it

does. It makes it clear that if the society is getting money from the province

of British Columbia, it has to be accountable to the government of British

Columbia for the money it spends.

[1615]

I've heard

the member make the independence argument without explaining it. It seems to me

that it's critically important that if government is giving the amounts of money

that it gives to the Legal Services Society, the society has to in some way be

accountable to government for how it spends that money. I think it's perfectly

legitimate that government, as the funder, be at the table in terms of talking

about priorities not for the purpose the member thinks but rather for the

opposite purpose of ensuring that in fact the society does meet the obligation

of providing service to people who, particularly in cases that would be

encompassed by Charter protection, are entitled to legal aid.

We want to

be sure that for the dollars we're spending, the society is in fact providing

that level of coverage which the constitution requires that it have. Yet, as

[ Page 3200 ]

subsection (3) points out, the society will have a broader range of ability.

It can do other things — that is, it can do and provide other services beyond

those that are contemplated in the budget and the memorandum of understanding

— if it does so without using the money provided to it by the government. It

can go and raise money or obtain money from other sources and then use that to

provide different kinds of legal aid services.

To come

back to 10(1)(f), I think this is a great step forward in terms of empowering

the society to become more creative, more flexible and, hopefully, over time to

expand the range of services that it provides. In effect, the box from which the

member asked her question is a box that's being transformed. These changes are

not just about how we get by with less. They are about changing how we approach

legal aid, expanding our conception of what legal aid services might be to

include self-help kits, information, education and emphasis on alternate dispute

resolution to ensure that the Legal Services Society can be at the cutting edge

in Canada of exploring new and innovative ways of delivering legal aid services.

Those include looking at and considering the possibility that in some cases a

client may be able to make some contribution towards a matter that is urgently

important to them, without being able to pay full freight.

If the

society can find a way to make that happen so that they are enabling and

empowering citizens to have access to justice through a contribution of some

part of the cost of legal aid that's necessary, while ensuring that the client

also provides some coverage, I think that's a great step forward. I think the

member opposite should applaud it as a positive, constructive and

forward-looking reform of how we do legal aid in British Columbia.

J. Kwan:

We've just seen the House…. All the members on the government side rose up and

passed

section 9 of this bill. The reason why my colleague and I voted against

section 9 is because it takes away a very basic objective of the society, and

that is to provide legal services…that threatens the individual's family's

physical or mental safety or health, the individual's ability to feed, clothe

and provide shelter for himself or herself and the individual's dependents and

the livelihood of the individual.

[1620]

The

government just voted for eliminating this basic premise and mandate of the

Legal Services Society, and now, under

section 10, the Attorney General rises up

and says: "It's a great thing for us to change how the Legal Services

Society provides its services. It should start charging people." We just

finished speaking about the issue of charging clients. Clients who are eligible

for legal aid are the people who have very few financial resources, if any.

That's why they qualify. Legal aid is provided to the people who couldn't

otherwise afford it. But here we have a government saying: "Let's charge

them. Maybe they can afford a little bit of it."

Maybe in a

section later on it's going to move into making people put a lien on their

house, just like social services. People who need government for assistance, if

you should own a house so that you have safe, secure, perhaps affordable housing

— maybe not affordable, depending on the mortgage that the person may have to

pay…. If you own a home, you will now have to put a lien on it for any

government support, whether it be income assistance or legal aid. Quite frankly,

I have a problem with that. I do. I have a substantive problem with that.

Then for

the Attorney General to say: "Well, under this act, for me to interfere in

approving the budget under

section 10(3)(

b) is not violating the independence of

the society…." With all due respect, Mr. Chair, I disagree, because we've

seen what this government has done and what this Attorney General has done. When

the former board of Legal Aid said to the government, when they were cutting

38.8 percent of the legal aid budget, that the board would not be able to meet

its mandate — that is, to provide legal aid to the poorest of the poor — the

action that this government took was to fire the board. Then the Attorney

General put in their own trustee, with their own budget in place.

Now with

the change of Bill 45 and this section, I think it just simply enables the

government to more easily fire the board and say: "This is my agenda. This

is the legal aid services budget that must be approved by me." Not by the

board, which has been charged independently with the mandate to provide legal

aid services. That takes away the independence of the society and allows for

complete interference by the Attorney General in setting their own agenda. Their

agenda in this instance, quite frankly, results in taking away legal services

for the people who are in greatest need. It then puts forward the option to

charge the clients for legal aid services — clients of the kind who don't have

the financial means to get legal aid services elsewhere.

On that

basis, I am not going to support this

section of the act. It violates and

interferes with the independence of the society and, quite frankly, puts at risk

the clients who depend on legal aid by allowing this government to gouge them

even further.

[1625-1630]

Section 10

approved on the following division:

YEAS — 55

Falcon

Coell

Halsey-Brandt

Whittred

Cheema

Hansen

Santori

Barisoff

Nettleton

Wilson

Masi

Lee

Murray

Plant

Collins

Clark

Bond

de Jong

Nebbeling

Stephens

Abbott

Neufeld

Coleman

Chong

Penner

Jarvis

Anderson

Orr

Harris

Nuraney

[ Page 3201 ]

Long

Chutter

Mayencourt

Johnston

Bennett

Hayer

Christensen

Krueger

Locke

Wong

Bloy

Suffredine

MacKay

Cobb

K. Stewart

Visser

Lekstrom

Brice

Sultan

Hamilton

Sahota

Hawes

Kerr

Manhas

Hunter

NAYS — 2

MacPhail

Kwan

section

J. Kwan:

Section 11(4) states: "The extent to which legal aid may be provided in

relation to any legal problem is not to exceed the extent of legal and other

services that a reasonable person of modest means would employ to resolve the

problem."

Could the

minister please advise: what does "modest means" mean? What kind of

income would a person of modest means have?

Hon. G.

Plant:

Section 11(4), which is the subject of the member's question,

parallels the common law test for the appropriate scope of legal aid coverage to

be provided in any specific case — that is, the extent of services should not

exceed what a reasonable person of modest means would employ to resolve their

legal problem. This is quite familiar language in the universe of legal aid.

J. Kwan:

While that explanation may mean something for the Attorney General, it doesn't

mean anything to me. I'm sorry. I don't know what modest means have…. What

does that mean — for a person to have modest means? Could the minister attach

a number to it? Is there an income threshold that would apply? What does it

mean? I'm sorry. I'm a layperson, and it doesn't make any sense to me.

Hon. G.

Plant: What this subsection speaks to is this: the scope of legal aid

coverage should not be infinite. That is, when the courts have recognized that

in some circumstances the Crown has an obligation to fund the provision of legal

aid services, they've also recognized that it's appropriate to put limits on the

kind of service someone can expect to receive.

In some

contexts — for example, in some commercial litigation where parties of

extraordinary wealth are litigating — there can be no limit in some cases to

the number of experts' reports called, the number of depositions taken, the

length of examinations for discovery and the travel to foreign places to contact

prospective witnesses. The dollars can go up to reach the sky.

For the

vast majority of litigation matters, the clients are concerned to make sure that

they only pay a certain amount — that they get only that which is absolutely

necessary in the way of service. So when the state is in the business of funding

the provision of legal aid, this kind of provision says that the state's

obligation is to ensure that the kind of service, the extent of the service

that's being provided, would not exceed the extent of service that someone who

was acting reasonably, who didn't have a whole lot of money to spend on lawyers,

would actually spend in order to resolve their legal problem.

[1635]

I don't

think there is any place you could turn to and find a calculation of what

"modest means" means in this context, nor will the member find an

absolutely concrete definition of what constitutes a reasonable person for this

purpose. It's a yardstick against which to measure the extent of services

provided that might have an impact on things like the decision of defence

counsel in a legal aid–funded criminal case to conduct an endless voir dire as

opposed to a voir dire that's focused and limited to the actual issues that have

to be litigated. It engages, really, the issue of the scope of service.

J. Kwan:

What the minister is suggesting is that if you are in need of legal aid and if

you qualify, then the scope of services which you will be able to access will be

limited. On the flip side, a person who has the financial resources would be

able to seek experts, as an example, I suppose, and call them to testify on

their behalf. In this instance, it may well be that if you are in need of legal

services and you qualify for legal aid services, such expert services may not be

available for you. That's what this clause stipulates.

It sets up

a two-tier system for people who have the resources to access the full scope of

legal advice and legal representation and legal services, but if you are an

individual without the financial resources and you apply for legal aid, then you

would not be afforded that full scope. It sounds to me like that's what this

provision does. It takes away, in my view, equitable representation for British

Columbians who need legal aid in a society where only the haves would be able to

get access to full legal aid services. If you are a person who is deemed to be a

have-not and you need legal advice and have gone to legal aid to seek that

advice, under this provision of the act, the scope of legal services available

to you would be curtailed.

That's what

I heard from the minister, and that, in my view, is very disturbing. It sets up

a two-tier system in our society. I thought that as a society we prided

ourselves on ensuring equal access. That has been limited by the cuts in legal

aid funding and with the changes in the scope of the act and the objects of the

society under

section 9, so that poor people who need poverty law services, as

an example, would no longer be able to access legal aid representation because

of restricted financial resources. Now we see in this provision a situation

whereby the scope of legal aid ser-

[ Page 3202 ]

vices would also be curtailed, even for an individual who is qualified for

legal aid services.

Hon. G.

Plant: I disagree with the member. This is the test that the courts apply,

it's the test that the Legal Services Society of British Columbia has

traditionally applied, and it's a test commonly applied across Canada. If a

person was accused of a crime and in order to make full answer in defence they

needed to hire an expert to give an opinion on a particular matter, then the way

that legal aid coverage is provided now and will continue to be provided is that

the expert would be retained.

That's

what's happened; it's going to continue to happen. The reason it would continue

to happen is because if you were a person of modest means charged with a

criminal offence and you needed to make full answer in defence and in order to

do so you needed an expert opinion, you'd hire the expert.

There's

nothing here that's really new, frankly. As I say, this is a test applied by the

courts. It's the principle that's been applied by the society traditionally, and

it's a common principle applied by legal services societies all across the

country.

[1640]

J. Kwan:

I know the minister would like to think that it does not limit the scope. When I

first asked the question, he said on record in this House that it pertains to

the limitation of the scope of the services being provided to clients who need

legal aid. He actually just said that. Then he used the example in terms of

needing to draw expert witnesses whereby the expert witnesses may not be

available.

If you are

a person who may be charged with whatever, and you need legal aid services —

it could be a civil case; it could be a criminal case — because of this

provision of the act on the issue around a reasonable person of modest means, it

could well mean that the individual who's charged may face imprisonment and

would not have the full extent of the legal services to defend himself or

herself. If this act allows for that to happen, how does that address the issue

of equal access to justice? It doesn't.

[1645]

Then, in

the entire act that is being talked about even with the people who are

qualified, somewhere along the line their representation may be compromised

because of financial barriers. That, in my view, is what this

section of the act

does. It compromises the individual's legal representation because of financial

resources. Quite frankly, I would have great difficulty supporting this

section

of the act.

Section 11

approved on the following division:

YEAS — 57

Falcon

Coell

Halsey-Brandt

Hawkins

Whittred

Cheema

Hansen

Santori

Barisoff

Nettleton

Wilson

Masi

Lee

Murray

Plant

Collins

Clark

Bond

de Jong

Nebbeling

Stephens

Abbott

Neufeld

Coleman

Chong

Penner

Jarvis

Anderson

Orr

Harris

Nuraney

Long

Chutter

Mayencourt

Johnston

Bennett

Hayer

Christensen

Krueger

Locke

Bhullar

Wong

Bloy

Suffredine

MacKay

Cobb

K. Stewart

Visser

Lekstrom

Brice

Sultan

Hamilton

Sahota

Hawes

Kerr

Manhas

Hunter

NAYS — 2

MacPhail

Kwan

Section 12

approved.

section

[1650]

J. Kwan:

This

section of the bill allows the Legal Services Society to issue a

certificate requiring the client to pay for legal aid services. Could the

minister please advise under what circumstances a client would be required to

pay for legal services?

Hon. G.

Plant: Existing legal services policy provides a system for repayment of a

range of legal aid costs when clients receive a cash settlement. These powers

enable equivalent repayment processes where there is a settlement of property or

where the client has a valuable non-saleable asset. The process in

section 13

provides for quantification of a debt, opportunity for the client to challenge

the amount of the debt and remedies for the society where there is no challenge

of the amount.

The

circumstances where this might arise include the circumstances, I think, that

are contemplated by sections 14 and 15 and perhaps also

section 16, which is

really just about priority agreements. In practical terms, this will rarely

happen in relation to any client who meets traditional eligibility criteria,

because the client will simply not have the means to pay for the service

provided.

J. Kwan:

What criteria will be used to determine how much an individual is required to

pay?

Hon. G.

Plant: I'm not sure if I understood the member's question, but if it was how

it will be deter-

[ Page 3203 ]

mined how much the society could charge a client in the circumstances where

this obligation might arise, the answer is that the amount will be determined by

the tariff rate paid by the society for the service provided.

J. Kwan:

Is there a varying amount in terms of the tariff, or is it a set tariff for a

particular service being provided? Could the minister please advise on the

tariff issue?

Hon. G.

Plant: The system of tariffs is marvellous in its ornateness and byzantine

in its complexity.

J. Kwan:

I think the Attorney General prides himself in providing answers that do not

answer the questions. I think he actually delights in that. That's fine. We can

continue on in this manner and prolong the debate.

I think if

you talk to the general public and ask them about the tariff scale: what is the

tariff scale for a particular service, and how much is it…? The minister is

asking, through this bill — actually legislating — clients to pay for

service when they've qualified for legal aid. I think the public has the right

to know what kind of parameters we are talking about. The minister refuses to

provide that answer, as though somehow that question is not relevant.

Hon. G.

Plant: I'd be happy to see if I could obtain a copy of the existing tariff

schedule of the society. In fact, it's on the Internet, available for the

member. I'll go on the Internet, and if it's not available there to the member

as it would be to me on the Internet, I'll make sure that the member gets a

copy.

I wasn't

intending to avoid the question. The tariff system is actually relatively

complex. In the average case, as far as I know, the amounts that might be paid

out seldom rise above $1,000 or $1,200 or $1,500. It is that tariff that would

be the basis of the calculation of what fees might be recoverable from a client.

[1655]

I should

say that I expect the tariff system itself will be under review as part of the

general work of the task force that the Law Society has initiated and that we

are a part of. The society itself is looking at the tariff not just in criminal

matters but also, I think, in family matters. We want to make sure we take

advantage of every opportunity that might exist to use the dollars available in

the most effective and efficient way possible.

J. Kwan:

Well, I am not going to support this

section of the act. This is consistent with

my position that has been outlined under

section 10, where it relates to

recovering costs through client contributions. This

section of the act simply

allows for the government to do that — that is, to charge a client through a

certificate procedure, to collect fees for legal aid services — so I'm not

going to support this

section of the act.

Hon. G.

Plant: I appreciate that, and I don't expect to change the member's mind,

but I do know that this has been an issue that's been talked about for a long

time. I think this proposal was recommended to us by the former board of the

society and, in fact, on a number of occasions may have been recommended to the

former government by the society. The society has been looking for this

opportunity for some time — and not because it intends in any way to use the

authority that is provided for inappropriately.

There are

circumstance, however, where I think the public interest is not well served by

providing legal aid to people who eventually come into possession of assets that

would, had they had them in the right form at the right time, have allowed them

to pay from their own resources for the legal services. I think that is just a

basic principle.

I know the

member and I disagree on that principle. My principle is this. If you don't have

any ability to afford it, then you start to engage the interests of the Legal

Services Society and you start to engage the public purse in its obligation to

ensure that it contributes to providing access to justice. But if you've got the

ability to pay for the service, you should pay for it. If you've got the ability

to pay because you're sitting in a house with $200,000, $300,000, $400,000 or

half a million dollars' worth of equity, then I think that in appropriate

circumstances, the public interest requires that asset be made available for the

purpose of ensuring that we don't provide service to you, with that equity, at

the expense of the person who doesn't have the equity.

We are

always going to be dealing with limited dollars and finite dollars. The question

is: how do we make sure we reach the people who absolutely need to be reached?

This legislation provides for the lien remedy. I think experience has shown —

and it is entirely our intention as far as government is concerned — that

liens, generally speaking, will not be enforced. The cost of enforcing liens,

particularly in the circumstances of the application of these provisions, will

probably not result in a recovery of the fees in any reasonable way and may well

cause hardship in some cases. But experience in other jurisdictions does show

that if the lien is there, then over a three-, four-, six- or seven-year period,

when the house is sold or when the family member moves and realizes some value

from the house, then there is in fact an incentive and an opportunity to ensure

that the fees are repaid.

I know what

the member is concerned about, and I have some sympathy for that concern, but

the challenge is to make sure that what we're doing here is consistent with her

concern. I think it's not. I think it responds to her concern, in fact, by

ensuring that we do use scarce public dollars in a way that is appropriate and

that reaches the broadest category of people. In some cases, if we provide

service to people who could in fact, because of a windfall that no one expected

or because they're sitting there in a family home that they don't want to sell

but is worth a lot of money…. We need the ability to ensure, not for the

protection of government but for the protection of the people who would not

otherwise get the service, that we have the tools to recover the costs of

providing service.

[ Page 3204 ]

[1700]

Legal aid

is not a right that we are all entitled to without regard to our ability to pay.

Legal aid only exists in the context of an inquiry into ability to pay. The

member and I may disagree about that. That's fair enough. I'll tell you, I'll

put that proposition on the table. We as citizens do not have an unlimited right

of access to the public purse to have the government pay to solve all our legal

problems. What we do have is this: in some limited situations where the interest

of the state is being brought to bear on us in a very significant way or where

hugely significant issues to us in our lives are at stake and we need advice

and/or representation and we do not have any ability to pay for it, then the

state's interest is engaged.

What this

provision does and what this scheme does is ensure that the state has the tools

available to protect that interest. I'm told that the usual experience is that

60 percent of these liens are paid out over a four-to-six-year period when the

property is sold or remortgaged. That seems to me to be a perfectly reasonable

way to proceed, and it's a tool I think the society should have.

I'm told

that when they were consulted in the autumn of 2000 by the society members of

the Women's Access to Legal Services Coalition, that indicated that they were

not opposed to women with interest in valuable assets being asked to pay for

legal services. The society and other stakeholders apparently think it's

important that the Legal Services Society be allowed to keep any funds recovered

for use in supporting other legal aid clients, and that is exactly what this

procedure is intended to do.

J. Kwan:

The issue around access to legal aid and the limited government dollars that

are available to provide for legal aid is dealt with on the issue around

eligibility. Again, I say that only people who are qualified — eligible — to

access legal aid financially will be able to access government support. If you

do not have financial support to do that, you would not qualify for legal aid.

If you had your own funds, you would not qualify. That is already a provision

within access to legal aid.

Interjections.

J. Kwan:

I hear the members clapping, saying: "Well, you know, we should charge

people for legal aid. This provision of the act may well not be utilized, but we

should just have the provision to allow for it." I hear the Attorney

General suggesting there are people who have hundreds and thousands of dollars

— maybe even millions of dollars — in equity, and if they have that kind of

equity, they should have to pay for their legal aid services.

You know

what? I remember when I was working at legal aid myself as a student, then

subsequently as part-time staff and as a volunteer. We used to evaluate

eligibility for people who were applying for legal aid. I processed applicants

that came in to apply, filled out all the forms and did all that kind of stuff.

If they did have equity, they oftentimes were not qualified for legal aid —

save and except for the requirement for them to sell their house. It's true.

People should not be required to sell their house. It should not be expected

that people live in the streets because they're faced with legal challenges.

They should not have to live in the streets.

Here the

government is saying, in

section 14, which we'll be debating: "Let's put a

lien on their house." It may well be that it would force the individuals to

become homeless if they have to move to another location to find a job, let's

say. They may well sell their house, and it may mean, though, that they would

want to find accommodation in another city.

Somehow

this government thinks that's okay. They somehow think that it is okay, and you

know what? I don't. I don't think it is okay. I don't think it is okay when you

know that when people qualify for legal aid, they are at the end of the