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)

WEDNESDAY, OCTOBER 23, 2002

Afternoon Sitting

Volume 9, Number 5

CONTENTS

Routine

Proceedings

Page

Introductions by Members

Statements (Standing Order 25 B )

Tri-City community awards

H. Bloy

Kalamalka campus of Okanagan College

T. Christensen

Coquitlam festivals

R. Stewart

Oral Questions

Kyoto accord

J. Kwan

Hon. G. Campbell

Affordable housing and Woodwards building

V. Anderson

Hon. G. Abbott

Zero-tolerance policy on spousal abuse

J. Kwan

Hon. G. Plant

Hon. L. Stephens

Sumas Energy 2 project

B. Penner

Hon. J. Murray

Second Reading of Bills

Human Rights Code Amendment Act, 2002 (Bill 64)

Hon. G. Plant

J. Kwan

V. Anderson

L. Mayencourt

Community Services Interim Authorities Act (Bill 65)

Hon. G. Hogg

[ Page 3981 ]

WEDNESDAY, OCTOBER 23, 2002

The House

met at 2:04 p.m.

Prayers.

[1405]

Introductions by Members

Hon. G.

Campbell: It's a pleasure to welcome to the Legislature today Preston

Manning, who's visiting us. Mr. Manning is a Canadian who understood the

importance of our democracy, the importance of participation, the importance of

leadership and the importance of being willing to share his ideas with his

fellow Canadians and let them decide on the direction that they would like to

take. He has recently decided that it was much easier to be a commentator than

an elected official and has written a new book called Think Big: My Life in

Politics. I can tell Mr. Manning, as a former Leader of the Opposition, that

we all have to be careful about what we wish for, but I want to make him

welcome.

Monsieur

le Président, il me fait grand plaisir cet après-midi, d'accueillir

soixante-trois é tudiants

de l'École secondaire Kitsilano, leur professeur Monsieur Gagnon et deux

adultes, aux édifices parlementaire.

How's that?

It gives me great pleasure to introduce 63 French immersion students from

Kitsilano Secondary — in case you didn't know that's what I did.

An Hon.

Member: In case they didn't know. [Laughter.]

Hon. G.

Campbell: They're all sitting there perplexed: "What did he say?"

It is a

pleasure to have them here. They're joined by their teacher, Mr. Gagnon, and two

accompanying adults. I hope the House will make them welcome as they watch us

make decisions on behalf of all British Columbians.

Statements

(Standing Order 25

b) TRI-CITY COMMUNITY AWARDS

H. Bloy:

I would like to talk about the Spirit of Community Awards for the

Tri-Cities. The winners were announced last week, and I would like to tell you

who the winners were.

The B.C.

Gas Environment Award went to Ms. Nancy Aichberger. The SHARE Family and

Community Services Society Youth Award, for those who inspire other youth to

take ownership, went to Ms. Melinda Mennie. The VanCity Cultural Harmony Award

went to Ms. Bahareh Hosseinpour. The Community Ventures Society Ability

Awareness Award went to Ms. Merle Smith. The NOW newspaper-Community

Action Award went to Ms. Nicole Whitney. The Society for Community Development

Together Against Violence Award went to Ms. Joni Mitchell. The Westminster

Savings and Credit Union and Community Volunteer Connections Community

Volunteerism Award went to Ms. Betty Riley. The Encore Dance Academy Arts and

Culture Award went to Mr. Bill Greenland. The Tri-City News Neighbour to

Neighbour Award went to the group Women Organizing Activities for Women. The

Douglas College Myrna Popove Lifetime of Leadership Award went to Ms. Wendy

Cooper. The Wesbild Holding Ltd. Workplace Leadership Award went to Ms. Maureen

Dockendorf.

I would

like to thank the Society for Community Development for honouring these great

individuals in the Tri-Cities.

KALAMALKA CAMPUS OF

OKANAGAN COLLEGE

Christensen: Last Sunday I was pleased to attend the twentieth anniversary

of the opening of the Kalamalka campus of Okanagan University College and the

grand opening of the Student Bodies Fitness Centre. The new cardio and

weight-training facility is the realization of a longstanding goal of the

Kalamalka Campus Students Association and was made possible by the contributions

of students attending the Kalamalka campus over the last decade.

[1410]

Through a

special student fee levy, the Kalamalka campus students collected over $100,000

to finance the establishment of their new fitness facility. It's through the

dedication and long-term vision of the students at the Kal campus that they now

have a fine facility and can stay on campus to exercise their bodies as well as

their minds.

In order to

free up space for the fitness area, two continuing education classrooms needed

to be relocated. That move has been accommodated by the construction of new

classrooms at the Kalamalka campus that will be home to the many

job-preparation, job-upgrading and other opportunities offered through OUC's

continuing education programs.

The

construction of this new classroom space was made possible by the creativity of

the administration of OUC's Kalamalka campus and the willingness of the Ministry

of Advanced Education to be flexible. We often come to expect in our public

post-secondary institutions that they're going to come to government, cap in

hand, to get funding for new facilities. At the Kalamalka campus, they looked at

what they were paying in lease costs, figured out what that payment stream could

finance and then figured out a way to move the project forward.

I want to

thank the Minister of Advanced Education for her assistance in ensuring that

this worthwhile project could move forward. As we all know, worthwhile projects

often take time. I commend in particular the students, both past and present,

and the administration at the Kalamalka campus for their can-do attitude and

their commitment to providing better infrastructure for students in ensuring

that the fitness facility and continuing education space became a reality at OUC

in Vernon.

[ Page 3982 ]

COQUITLAM FESTIVALS

Stewart: Following up on what my colleague from Burquitlam had to say about

Coquitlam's community spirit, I want to mention two festivals. A couple of weeks

ago, Coquitlam hosted the first annual West Coast Chocolate Festival. This

tremendous festival, organized by a great team headed by Linda Baker and Sharon

Tokar, included chocolate tasting, arts and crafts, chocolate sculptures, a bake

sale, chocolate-inspired poetry and even an enlightening sermon on chocolate by

Rev. David Spence of St. Andrew's United Church in Port Moody.

With

deference to my colleague from Port Coquitlam–Burke Mountain, it was I who was

named the MLA responsible for chocolate. Coquitlam is truly a community of

festivals, and along that vein, this coming weekend Coquitlam is celebrating our

Salmon Come Home event. On Sunday, October 27, hundreds of residents will gather

at the Hoy Creek hatchery to celebrate the annual return of salmon to their

spawning grounds. The Hoy and Scott Creek Streamkeepers Society hosts this

tremendous event every year to focus our attention on our local streams and the

tremendous values of our salmon and other wildlife that inhabit and depend upon

these ecosystems.

This annual

festival features exhibits from many other societies and environmental groups

that support our streams and wilderness areas, including groups like the Burke

Mountain Naturalists, Centennial High School, the Port Coquitlam and District

Hunting and Fishing Club, the Riverview Horticultural Society, the city of

Coquitlam, the streamkeepers groups for Maple Creek, Hyde Creek, Como, River

Springs, Coquitlam River and others.

I want to

congratulate the volunteers and community groups that work so hard to put

together the successful festivals that make Coquitlam such a great place to

live. Festivals like these serve to keep our community together, educate our

citizens and provide us with lots of fun. I ask the House to recognize such

volunteers and community groups across the province.

Mr.

Speaker: That concludes members' statements.

Oral Questions

KYOTO ACCORD

J. Kwan:

Yesterday the Premier took sides on the Kyoto accord. He took the side of Ralph

Klein. He took the side of big oil, and he took the side of big polluters who

gave him over $1.2 million in contributions leading up to the last election. My

question is to the Premier. The vast majority of British Columbians support the

Kyoto accord. Why did he not take their side?

Hon. G.

Campbell: What the province has done is take the side of British Columbia

and the people who live here and the people whose jobs are here. I am surprised

the member opposite doesn't understand that the province has spent a generation,

in fact, leading the country in terms of climate change. We are second- or

third-best in terms of greenhouse gas emissions. What we have said to the

federal government is that British Columbians deserve to know. What is their

implementation plan? What are the targets they expect to have? Is the federal

government planning to give British Columbians, the people who live here and the

people who work here, credit for the investments they've made in cleaning up

this environment for a generation?

Mr.

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

question.

[1415]

J. Kwan:

If the Premier supported British Columbians, he would support the Kyoto accord.

The majority of British Columbians support the Kyoto accord.

The Premier

would have us believe the sky is falling. It's the same argument that big oil

used to fight unleaded gas. It's the same argument that polluters use to fight

against acid rain reduction.

In the

twenty-first century the new economy will be driven by those who lead in

developing new environmental technologies, and the environmental dinosaurs like

the Premier will only simply be left behind. Why isn't he speaking for the

future generations instead of speaking for Ralph Klein and big oil? Is it

because big oil simply supports his campaign, and that's all that's important

for this Premier?

Hon. G.

Campbell: I guess I have to ask the member opposite: do the member opposite

and her party believe that British Columbians should not get credit for their

forest sink? Do you believe and does the party believe that we should not get

credit for five billion trees being planted in our province? Do you believe that

the investments that have been made in Ballard Power and alternative energy, and

that the works being done on Power Smart and conservation by B.C. Hydro should

not be credited to the people of British Columbia?

Interjection.

Mr.

Speaker: Order, please, so that we may hear the answer.

Hon. G.

Campbell: The member opposite has a responsibility, as does the government,

to understand what the implementation plan is that the federal government is

bringing forward. Right now all we know is that B.C. will lose more jobs than

its share, that B.C. will face greater costs than its share, and that, indeed,

we — our people, the people of this province, the workers of this province —

may not get the credit for the investments they have made in making sure that we

are progressive and moving forward on climate change in this province. We want

the federal government to work with provinces, and I'm surprised the member

opposite doesn't.

[ Page 3983 ]

AFFORDABLE HOUSING

AND WOODWARDS BUILDING

Anderson: My question is to the Minister of Community, Aboriginal and

Women's Services. The availability of affordable housing is important to our

constituents. However, many of them are concerned that not enough is being done

to help individuals and families on low income, especially in Vancouver's

downtown east side. Can the Minister of Community, Aboriginal and Women's

Services tell us what the ministry is doing to address the housing needs of

British Columbians?

Hon. G.

Abbott: The member is right. Affordable housing is a huge challenge for this

province. It's particularly a huge challenge in some of the metropolitan areas.

In greater Vancouver the vacancy rate is less than 1 percent.

While it's

a huge challenge, I'm happy to say, in response to the question, that housing is

also a majority priority for this government. We have the largest budget for

housing ever in British Columbia at $128 million. That having been said, we

believe this is not something that government can do alone, so we work in

partnership. We work in partnership with the federal government, with local

governments, with non-profits, with the private sector to try to find

affordable, sustainable solutions to the housing problems facing some British

Columbians.

We've

entered into projects, for example, and some of them are in the member's area.

We've got projects with the Salvation Army, the Portland Hotel Society and the

YWCA. In every case, unlike the former NDP government, what we are committed to

doing is receiving the maximum value for every taxpayer dollar that we expend in

housing.

Mr.

Speaker: The member for Vancouver-Langara has a supplementary question.

Anderson: Last night Vancouver city council approved in principle a plan….

Interjection.

Mr.

Speaker: Hon. member, we will wait until we have order in the House, please.

Then we will hear your question. Please proceed.

[1420]

Anderson: Last night the Vancouver city council approved in principle a

revitalization plan for the east side by converting the old Woodwards department

store into mixed residential, commercial and retail units. I understand that the

potential developer for the Woodwards site will be applying to B.C. Housing to

have a hundred units subsidized for individuals and families on low income. Can

the Minister of Community, Aboriginal and Women's Services tell us the next

steps involved in getting this undertaking underway?

Hon. G.

Abbott: In response to the member's question, we are in discussions through

B.C. Housing with a potential purchaser for the Woodwards Building. It is a

complex commercial transaction, and as is typical in such transactions, we have

a non-disclosure agreement in place around those discussions.

However, I

can say this about the project: Woodwards clearly is pivotal to the

revitalization of one of the more troubled neighbourhoods in Vancouver and,

indeed, in Canada, but I'm confident that the mix of residential, commercial and

retail uses that is currently a part of the development permit will produce the

results of revitalization of that part of downtown Vancouver. One thing we will

not be doing, however, is expending $90 million on a project which undoubtedly

would have become our fast ferries of affordable housing in British Columbia.

ZERO-TOLERANCE POLICY

ON SPOUSAL ABUSE

J. Kwan:

It must be a proud record for this government to cancel over a thousand units of

affordable housing, to cancel Affordable Housing Week and to say: "Oh,

guess what. By the way, we're selling off Woodwards as well."

In the

spring of last year we asked the Attorney General to reconsider his plans to

change the zero-tolerance policy towards spousal abuse. The Attorney General

blew off our concerns and those of the women's groups around the province. The

Vancouver police board now says that changing this policy will increase the risk

that women face in abusive relationships. Given the concerns raised by the

police board, will the Attorney General now pay attention and back off on this

regressive policy?

Hon. G.

Plant: Some time ago we initiated a public discussion of this particular

part of the Crown counsel policy by circulating a discussion paper. We've been

receiving input. I think the time for input is nearly at an end, and I certainly

look forward to reading the responses that we have received to the suggestions

for reform. What we did know going into this is that the status quo in terms of

the application of that policy was not working. Too many cases were being

stayed, and the end result of that is women are put at risk when they should not

be. It's time for change. It's time for constructive change, and that is where

we intend to move with this policy reform.

Mr.

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

question.

J. Kwan:

Isn't that interesting, because even the police board disagrees with the

Attorney General. B.C. has one of the highest rates of domestic violence in the

country. In the year 2000 over 10,000 spousal cases were reported. Women's

groups are pleading with the government not to change its zero-tolerance policy.

The Vancouver police board says it's a huge step

[ Page 3984 ]

backwards for women in British Columbia. They can't get anywhere with the

Attorney General.

Maybe the

minister responsible for women's services would do her job. Does she support

changing B.C.'s zero-tolerance policy on spousal abuse, or does she agree with

the women's groups and the police board that we should maintain a get-tough

approach on domestic violence? The Minister of State for Women's Equality.

Hon. L.

Stephens: This government is committed to making sure that we have in place

policies that protect women, that we protect women who are suffering violence.

The Attorney General is making sure the policies he implements do that. This

government supports the policies that will make sure that women in this province

are protected from violence.

[1425]

Part of the

service plan this ministry is going to be implementing is a safer community

strategy for women. I have been meeting extensively with women's groups and

organizations around the province, and we will be bringing forward a policy…

Interjection.

Mr.

Speaker: Order, please.

Hon. L.

Stephens: …that does in fact protect women from violence in this province.

SUMAS ENERGY 2 PROJECT

Penner: My question is for the Minister of Water, Land, and Air Protection.

As I've said before in the House, air quality in the Fraser Valley is a

significant issue for my constituents. You know, it was pretty hard to take,

listening to the lecture from the member for Vancouver–Mount Pleasant a few

moments ago about air pollution, when her failed government sat on its hands and

failed to seek intervener status in Washington State.

Governor

Locke's decision in late August to approve construction of SE2 could mean that

my constituents in Chilliwack-Kent are faced with an additional 1,000 tonnes of

emissions per year pouring into the very air they breathe. For the benefit of

the House, can the minister tell us what steps the B.C. government is taking to

continue our fight against this threat to Fraser Valley air quality?

Hon. J.

Murray: There's a number of actions we're taking. As the member is probably

aware, the United States Environmental Protection Agency made a decision to

approve the permits for SE2, and we have launched an appeal of that decision.

The Premier is continuing to talk to Governor Locke of Washington. He met with

the Governor again just last Friday to reiterate our opposition to the Sumas 2

power plant. The province supports an expanded scope of the review by the

National Energy Board of an application by Sumas Energy to connect to the B.C.

power grid.

Our hope is

that the National Energy Board will look at the overall environmental impacts of

the Sumas 2 proposal. I would like to point out that the very vocal member from

Vancouver–Mount Pleasant, who's been very vocal about the environment, was a

member of a government that did not look at the environmental impacts of SE2 and

failed to apply for intervener status.

Interjections.

Mr.

Speaker: Order, please. The member for Chilliwack-Kent has a supplementary

question.

Penner: Most members will know there was a large rally last week in

Abbotsford in opposition to SE2. Despite being invited, neither of the NDP MLAs

bothered to show up.

As the

minister noted, the National Energy Board's approval is required in order for

SE2 to access B.C.'s transmission grid. So far, five B.C. Liberal MLAs —

myself, the Minister of Agriculture…

Interjections.

Mr.

Speaker: Order.

Penner: …the Minister of Forests, the MLA for Chilliwack-Sumas and the MLA

for Maple Ridge–Mission — have all made presentations to the NEB since last

Friday, speaking on behalf of their constituents. Can the Minister of Water,

Land and Air Protection shed any light on the NEB's time line for a decision on

this application by SE2?

Hon. J.

Murray: We don't know when that process will wrap up. It may take some time.

It's a two-phase process. One of the reasons it may take some time is that there

are hundreds and hundreds of interveners, not including the member opposite or

any of the NDP representatives. The hundreds of interveners is a testament to

the deep interest that residents of the Fraser Valley have in this. We had

argued that the NEB should actually postpone their hearings until all appeals

had been done. That was, unfortunately, turned down. This will take some time.

We will continue to make every effort…

Interjections.

Mr.

Speaker: Order, please.

Hon. J.

Murray: …to make sure the National Energy Board denies the Sumas 2

application.

[End of question period.]

Orders of the Day

Hon. G.

Collins: I call second reading of Bill 64.

[ Page 3985 ]

Second Reading of Bills

HUMAN RIGHTS CODE

AMENDMENT ACT, 2002

Hon. G.

Plant: I move second reading of Bill 64, the Human Rights Code Amendment

Act, 2002.

[1430]

In this

chamber we make laws that create rights and responsibilities across a wide

spectrum of human activity. We also create the institutions through which those

laws become real in the lives of the people we are elected to serve. Among our

obligations, therefore, is the duty to ensure that these institutions are

designed and administered so they achieve the purposes they are intended to

fulfil. When the design is faulty or the administration fails, then we should

act. If we do not act, if we ignore our obligation to repair that which is

obviously broken, then we risk undermining public confidence in our institutions

and public respect for the very rights we seek to nourish.

Nowhere is

this more true than in the area of human rights. Our Human Rights Code makes

strong statements about the rights of British Columbians to live in a society in

which there are no impediments to full and free participation in our economic,

social, political and cultural life. The code also expresses our collective

obligation to promote a climate of understanding and mutual respect where all

are equal in dignity and rights.

But the law

alone will not make us free. There must also be a place and a way to enforce it.

That is what this bill is about. The common-law lawyer has an old expression:

where someone has a right, the law should give a remedy. The bill before us is

concerned not with the substance of human rights, but its processes — that is,

with the place and the way in which victims of discrimination can have a remedy.

This bill

is here before us for a reason. The existing institutional structure for the

protection of human rights in British Columbia has failed. There is an urgent

need for change. It's time for a new approach.

It was

Mahatma Gandhi who said that freedom is at the root of all progress. Gandhi's

words still resonate. Our goal, therefore, is to protect those freedoms that

allow us, as a society, to move forward. With this bill, we are moving forward.

To prove this point, Mr. Speaker, I intend to spend some time talking about the

history of human rights protection and the failings of the current system, but

first I want to say something about the immediate history of this bill and its

predecessor, Bill 53.

The issues

dealt with in this legislation engage a broad cross-section of British

Columbians who are committed to the recognition and protection of human rights.

These issues are of particular concern to the community of those who have had

experience with the existing institutional framework. All of these people have

been included in the processes that led to this bill. Their input has been

invited and welcomed.

On May 30

of this year I introduced a bill, Bill 53, that set out elements of a new

framework for human rights protection. The introduction of that bill represented

one of a number of stages of public consultation on human rights reform that

began in July 2001. Bill 53 was introduced as an exposure bill. That is, it was

introduced with the intention of encouraging public debate and inviting comments

and suggestions.

[1435]

As the old

expression puts it, freedom is when the people can speak; democracy is when

government listens. Well, we listened. We have made some changes because of what

we have heard.

The bill

now before the House reflects the careful consideration of the advice and the

suggestions we received. I believe it is a better bill because of that input.

But the broad purposes of this project have not changed, so I want to be clear

about our ambitions. I believe this bill will strengthen the protection of human

rights in British Columbia. It will do this by replacing a structure that is

unreasonably complex, structurally flawed, burdensomely expensive and

unnecessarily adversarial with a structure that is straightforward, accessible,

efficient and fair. In so doing, it will put British Columbia at the forefront

of human rights in Canada.

The current

institutional framework includes three agencies: the Human Rights Commission,

the Human Rights Tribunal and the Human Rights Advisory Council. That's not all.

The commission itself has three separate but interrelated parts: a chief

commissioner, a deputy chief commissioner and a commissioner of investigation

and mediation. This highly elaborate framework represents the latest stage in a

half-century of evolution of human rights protection — the latest stage, but

not the last word.

I intend to

spend a few minutes summarizing that evolution, because I want to make two

points. First, there has been a remarkable amount of progress in protecting

human rights in a relatively short time, although there is much work yet to be

done. Second, the institutional framework for protecting human rights has

undergone a series of radical restructurings whenever it has become clear to the

members of this House that the existing structure is not meeting public needs

and expectations.

As recently

as the Second World War, there was little attention paid to the notion of formal

human rights in Canada or elsewhere. Human rights was not a widespread topic of

public policy debate or political writings with, of course, a few notable

exceptions including the long struggle to achieve universal suffrage. I think

most students of history would agree that discriminatory attitudes and beliefs

were pervasive. Discrimination was not confined to the private sphere of social

and economic relations but was also reflected in legislation and public policy,

including acts passed here in this very chamber.

All of this

began to change with the Second World War, when the guarantee of human rights

was one of the purposes for which the allied powers fought. Hu-

[ Page 3986 ]

man rights legislation as we now know it started to develop in the postwar

period, largely in response to the concepts introduced into international law

that were designed to prevent the recurrence of the atrocities and human rights

violations committed during the war.

In the

Universal Declaration of Human Rights adopted by the UN General Assembly in 1948

and in a series of multilateral treaties, sovereign states both recognized and

consented to be bound by the obligation to respect and secure the human rights

specified in those documents within their own territories. These instruments

provided international standards or norms against which the domestic laws and

the conduct of member states could be measured, as well as minimum standards for

respecting basic human dignity and freedom.

As a

country, Canada made a commitment to protect fundamental human rights, and

legislation became the vehicle through which these commitments were and continue

to be fulfilled. Early human rights legislation in Canada, such as the Ontario

Racial Discrimination Act in 1944 and the 1947 Saskatchewan Bill of Rights Act,

approached discrimination as a crime to be dealt with by the police and the

courts. As a consequence, victims were often reluctant to initiate proceedings,

and cases were difficult to prove. The penal offences ultimately proved

ineffective because of the attendant procedural safeguards of a criminal

process, and they were soon replaced with models that emphasized civil remedies.

[1440]

That brings

us to British Columbia. The first piece of human rights legislation in British

Columbia can be traced back to 1953 and the passage of

an act to ensure fair

remuneration to female employees,

an act designed to fight wage discrimination

against women. This act set out a system to investigate and adjudicate claims,

essentially referring these cases to an existing administrative tribunal, the

board of industrial relations.

There were

various revisions and additions to human rights law in B.C. over the next 15

years, and in 1969 the government of the day passed an omnibus Human Rights Act.

This act continued the existing wage discrimination provisions and detailed

other types of prohibited employment discrimination. A director appointed under

the act had the power to investigate claims and to try to effect a settlement.

Failing that, the case went to the Human Rights Commission, an organization that

followed an investigative model set out in 1953.

That was

1969. Four years later, in 1973, the government conducted a thorough review of

B.C.'s human rights legislation. A new Human Rights Code was enacted. The areas

of coverage were expanded. In addition, the supporting system grew more

complicated and prescriptive, detailing a list of remedial orders that could be

made and imposing time limits on complaints and damages. Most significantly, the

1973 code established a Human Rights Commission aimed at promoting the

principles of the act and an understanding of and compliance with it. The

commission also had a role in educating the public and coordinating programs and

activities designed to promote human rights and fundamental freedoms.

That was

1973. The next major revision of the legislation occurred in 1984. This revised

act continued to prohibit other forms of discrimination but was designed to

narrow the legislation and restrict enforcement powers. For example, under the

previous act, discrimination "without reasonable cause" — that's the

phrase from the act — had been prohibited, but under the 1984 act specific

grounds of discrimination were enumerated. As well, responsibility for carriage

of the complaint was transferred from the commission to the complainant. Staff

levels were reduced, and the council was required to use the investigative

services provided by industrial relations officers employed and managed by the

government's employment standards branch. This latter requirement contributed

significantly to delay problems associated with the complaint investigation

process.

In 1984 the

government also created a five-person human rights council responsible for

acceptance, screening, investigation, mediation and adjudication of complaints.

Following the investigation of a complaint, the council could submit a report to

the minister, although this power was never exercised. Instead, when a decision

was made to refer a complaint to a hearing, it was conducted by a council

member.

That was

1984. The next significant amendments were made in 1992 when the remedial powers

of the council were expanded to allow it to deal with complaints arising from

allegations of systemic discrimination. The revised act also allowed the council

to set up special programs, including employment equity programs.

That was

1992. The most recent changes to the human rights legislation occurred four

years later, in 1996. Those changes were based on a report done in 1993 by UBC

law professor Bill Black. They resulted in the government enacting our current

Human Rights Code and the administrative system that supports it.

[1445]

I will have

more to say about the current structure in a moment, but I want to pause here to

observe that while all of these changes were taking place — that is, changes

to both the substance of the code and the institutional framework for protecting

human rights — other changes occurred that are also an important part of the

overall context for human rights protection.

Most

importantly, the Charter of Rights and Freedoms came into force in 1982, and of

course

section 15 of the Charter, the equality rights provision, came into force

in 1985. The Charter and judicial decisions interpreting it have had a

significant impact on the development of our understanding of human rights. Over

time, courts interpreting provincial human rights legislation have also made

important decisions that, together with all of the legislative changes I have

described, are all part of the evolution over half a century and more of human

rights protection.

[ Page 3987 ]

The purpose

of drawing the attention of the House to all of this history is to demonstrate

the two points I made at the outset of this part of the discussion. One, our

understanding of human rights, our understanding of the nature and effect of

discrimination, has developed over time. Second and for the purposes of this

debate more importantly, the institutional framework for protecting human rights

has over the same period undergone something that would less accurately be

described as evolution and more accurately be described as repeated radical

change.

These two

strands of history — the substance, the content of a code, and the process and

the system by which it is enforced — are, I suggest, different in some

respects from each other. At the heart of the first strand, the strand that

deals with the substance of human rights, are core ideas and principles that I

believe may be immutable, but the second strand, the institutions that make

those rights real, are not. The structures and processes for protecting human

rights have been continuously reinvented as we have gained experience from

watching them work.

Our

predecessors in this chamber have studied and learned from the successes and the

failures of each of these structures. At every step of this path, this path that

is now more than half a century long, legislators have stepped in where needed

to reform the institutions, build on their successes and, where necessary, to

repair their failures. This bill represents the next step forward along that

road.

I want to

turn now to an explanation of why government believes it's time to change the

current structure.

I was first

elected an opposition MLA in 1996, and at that time I was given critic

responsibilities in the area of human rights. I took those responsibilities

seriously. I spent time at the commission and with the chief commissioner. I met

with stakeholder groups and others. I watched; I learned.

Here is

what I saw. The new structure, which was implemented on January 1, 1997, had

growing pains, to say the least. From the outset, there were concerns about

delay in the investigation process. More funds were provided by government to

clean up backlogs, but the larger concerns about the fairness and effectiveness

of the process did not diminish. In fact, these concerns grew over time. At the

heart of the emerging problems was the way in which the statutory structure and

its administration tended, whether deliberately or by omission, to create the

perception that human rights claims were causes to be championed rather than, as

is most often the case, problems to be solved.

Human

rights complaints arise in many contexts, although the majority occur in the

workplace. Many, by no means all, of these complaints are the incidents of a

moment's or an hour's or a week's stupidity or indiscretion. Some spring from a

simple although inexcusable failure to understand the way in which our conduct

or our policies may fail to respect the right of employees or customers to be

treated with equal dignity and respect. These incidents cause real harm. They

cause real hurt, but many of them can be dealt with, and dealt with most

effectively, if there is early and constructive intervention. In some cases an

early apology may be a better path to a reconstructed relationship built on

mutual respect than an award of compensation that is not made until years and

years and years have passed.

[1450]

However,

the current structure did little to encourage this approach. Instead of a focus

on early problem-solving, the complainant and the respondent were subject to

investigations processes that in too many cases polarized the situation, allowed

positions to harden because of the delay in moving towards resolution and led

all too often to long-drawn-out litigation where, on the one hand, respondents

were forced to pay expensive legal bills and wait for years for the matter to be

resolved, while on the other hand, complainants were equally frustrated in their

desire to address the issues and get on with their lives.

Compounding

these very real and practical difficulties was the confusing separation and

interconnection of responsibilities between and among the various statutory

actors — the chief commissioner, deputy chief commissioner and commissioner of

investigation and mediation. They all played distinct but overlapping roles —

advocate, investigator, conciliator, mediator, educator, intervener, neutral,

partisan. It was difficult to keep track. There were some modest attempts to

address these problems, but they did not succeed. Instead of a structure that

built respect for human rights, we had a structure that undermined it. That is

the structure we inherited as government.

Here is

what we have done about it. In July 2001 government initiated the administrative

justice project. I have spoken about that project in this chamber before, and I

hope to have the chance to speak about it again. As you know, Mr. Speaker, the

goal of this very broad review of our system of administrative justice is to

ensure that administrative justice is accessible, efficient and fair while at

the same time ensuring that it takes into account equity and social justice

concerns. The terms of reference for this broad project, which encompasses all

of the adjudicative agencies of government, included a special review of human

rights agencies.

The

initiation of the administrative justice project a year ago July marked the

commencement of an extensive, formal public examination of human rights in

British Columbia. In December 2001, as part of that examination, government

released the comprehensive 180-odd-page background paper entitled Human

Rights Review , prepared by Deborah Lovett and Angela Westmacott. This review

paper became a touchstone for a vigorous debate and further public consultation

about the future of our human rights system. The clear and consistent message

from legal experts, from human rights advocates, from members of the public and,

most importantly, from the users of the system — both complainants and

respondents — was that the status quo wasn't working.

[ Page 3988 ]

Here are

examples of the specific complaints we have heard. We have heard about delays in

intake and investigation. We have learned about unevenness and inconsistency

between decisions. We have heard about duration and complexity and costs of the

process. We have heard about the inadequacy of appeal mechanisms. We have heard

over and over again about the rigidity of the complaint investigation process.

We have heard a concern that there is, from time to time, a perceived — at

least perceived — emphasis on dismissal statistics rather than on the proper

disposition of complaints. We've heard questions about the knowledge and

training of investigators, and we have heard, most fundamentally, concerns about

an investigation process that did not generally add value to or assist in the

resolution of complaints. These are the problems. It's time to talk about

solutions.

[1455]

What, then,

are we proposing? Well, we are moving from an approach based on multiple

agencies with confusingly intersecting mandates to an approach with one

statutory agency. The new model will remove the duplication and delays by making

the Human Rights Tribunal directly responsible for receiving, mediating and

adjudicating all human rights complaints. Let's be clear about something. Under

this new system, the substantive protections afforded by the Human Rights Code

will not change. What will change is the method of protecting those rights.

Complaints

will no longer be lost in the dark void of endless and inconclusive

investigations. Instead, victims of discrimination will have direct access to a

tribunal that can resolve their complaints, and the tribunal will be given

enhanced powers to handle all aspects of complaints filed under the code. The

tribunal will emphasize mediation and the early resolution of disputes rather

than adjudication as the preferred means of resolving complaints, and it will

adjudicate the complaints that require adjudication.

This is the

heart of the new system. It is simple; it is straightforward. It is

comprehensible, and I believe it will work. But government recognizes that there

is more to human rights protection than complaint resolution. A successful

system for complaint resolution is the precondition to a successful human rights

system, but it is not the only element. Public information and understanding are

also key components of a successful human rights system. The statute in its

current form mandates the commission to develop and conduct a program of public

education and information designed to promote an understanding and acceptance of

the code.

In the new

model, the education function will be carried out by three organizations: the

Ministry of Attorney General, the Human Rights Tribunal and a publicly funded,

independent legal clinic. Basic information on the code, its purposes, its areas

of coverage and protected grounds will be developed and provided to the public

by the Ministry of Attorney General. Government clearly has the responsibility

to promote human rights and to inform the public about their rights.

There is,

however, no reason to situate this responsibility in an organization at arm's

length from government. In this respect, Bill 64 differs from Bill 53. We heard

questions about this issue of education, and as a result of the public

consultation, we have come forward with a bill that states the education

responsibility clearly in the face of the legislation and makes it the

responsibility of the Ministry of Attorney General.

But there

is more to education. The Human Rights Tribunal, like all independent

administrative tribunals, will be responsible for informing people about the

rules and procedures of the tribunal. The tribunal will ensure that public

information is accessible throughout the province so that people are given

information on the complaint process in an accessible format. The tribunal will

also ensure that people understand the processes in which they are involved.

Education

and training on human rights law will be the responsibility of a publicly

funded, independent legal clinic. The B.C. Human Rights Coalition, an

independent society, will be mandated by the ministry to develop and deliver a

program of preventive education and training to promote the purposes of the code

and encourage compliance. This coalition has in fact been delivering such a

program for a number of years, and it is well respected in this field. The

additional resources that the government will provide will enhance the

coalition's ability to carry out this important work and will assist the

government in meeting its responsibility to promote an understanding and

acceptance of human rights.

[1500]

I want to

speak for a moment about systemic discrimination. The ability to address

systemic discrimination has also been strengthened in the new model. Systemic

complaints are those which raise issues about prohibited discrimination that is

built into a system. Like all discrimination, it is experienced by individuals,

but by definition, systemic discrimination affects a class or a group of

individuals. Sometimes it does so even though the system does not intend to

discriminate on that basis. But if it has that effect, it may nonetheless be

found to be systemic discrimination.

Let me say

something about the current structure in the current system, which is, of

course, what we're here today to begin to change. In the current system the

deputy chief commissioner has three ways to raise systemic issues in a

complaint. One, under

section 21(2) of the current code, if the deputy chief

commissioner believes that a person has contravened the code, he can file a

complaint. Two, under

section 21(3) the deputy chief commissioner can require

the commissioner of investigation and mediation to add him as a party to the

complaint. Three, in addition, under

section 36(1) the deputy chief commissioner

can require the tribunal to add him as a party to a hearing. That's the

statutory framework as it now exists.

Let me say

something about that framework. The deputy chief commissioner has had the power

to initiate complaints for more than five years. He did not do so. Actually,

this experience is not atypical. The re-

[ Page 3989 ]

search that we've done says that of the 13 jurisdictions in Canada, only

eight of those jurisdictions have addressed whether the commission can initiate

a complaint in their human rights statutes. Five statutes are silent on this

point. Two provinces specifically prohibit the filing of a complaint by the

commission, and six allow it. Although six Human Rights Commissions in Canada do

have the power to initiate complaints, only three have ever done so.

Saskatchewan, Ontario and the federal Human Rights Commission have each

initiated one complaint.

With

respect to the powers under sections 21(3) and 36(1), the second and third

avenues under the existing code for participating in systemic complaints, we're

told by the deputy chief commissioner that he became a party to complaints

initiated by individuals or groups, either at the commission stage or at the

tribunal stage, to ensure that any settlement reached prior to hearing or remedy

imposed by the tribunal addressed any systemic issues that may have arisen in

the context of that complaint.

The

experience, however, was this. Complainants frequently resisted the involvement

of the deputy chief commissioner, since the involvement of the deputy chief

commissioner resulted in the complainants having less control over the progress

of their own complaint. Taking all of this into account, government has

concluded that these powers of the deputy chief commissioner are not a

cost-effective way of ensuring that systemic discrimination issues can be

addressed.

So how will

systemic complaints be raised in the new model? Individuals or groups, including

non-governmental organizations, will continue to have the ability to initiate

complaints of a systemic nature, including complaints in which government is

named as the respondent. That's all you need. Any complaint raised has the

potential to include within it systemic issues, but it has to be a complaint in

order for a process to get started. Once it is a complaint, if there are

systemic issues, they can be addressed.

[1505]

In addition

to that, the changes that we're proposing in this legislation will allow a

tribunal member or panel hearing a case to invite any person or group of persons

to intervene in the complaint, whether or not that person or group would be

directly affected by an order made by the member or panel. This is a new power.

These

proposed changes will actually increase the opportunities for non-governmental

organizations to intervene in cases which have systemic elements. Finally, the

human rights clinic will also ensure that systemic factors are addressed in any

complaints, starting by assisting individuals or groups in framing the complaint

and ensuring that if there are systemic issues or factors, they are addressed

either in mediation discussions or through the counsel that will be provided to

some parties at hearings.

I spoke

about the clinic. Let me say something about legal support under the new system.

Unlike all other jurisdictions in Canada, British Columbia's current system does

not call on the commission to take carriage of the complaint. Rather,

complainants under the current system are in control of the progress of their

complaint. They decide what remedy best meets their needs, and they decide

whether, when and how they pursue their allegation. That is, in my view, as it

should be. It is, after all, their complaint.

For this

process to be fair, this approach does require that legal support be provided to

parties involved in complaints. Until recently, the Human Rights Commission had

a contractual relationship with the Legal Services Society to provide legal

counsel to some parties to complaints. This arrangement was unsatisfactory. It

was unfair. It was unfair because all complainants were automatically eligible

for legal aid, but respondents needed to pass a means test to qualify. It was a

very expensive program.

I believe

the new clinic model, which will be implemented along with the introduction and

implementation of this legislation, is an improvement over these arrangements.

There will be a publicly funded legal clinic. It will assist parties throughout

the progress of their complaints.

The

ministry will mandate the B.C. Human Rights Coalition to provide parties with

advice and assistance beginning prior to the submission of a complaint and, in

the event that a complaint is accepted by the tribunal, extending throughout

mediation and settlement discussions at the tribunal. This assistance will be

available as needed by either complainants or respondents. The ministry will

also provide resources to the Community Legal Assistance Society to provide

legal counsel to parties when a lawyer is needed at a tribunal hearing.

developing this new system, we listened carefully throughout the administrative

justice project work that has been done to date and throughout the public

consultation process. In particular, we listened after we introduced Bill 53. We

analyzed each suggestion, and we have taken action whenever it was practical and

appropriate. That action is reflected in the bill that is now before the House.

For

example, as I said earlier, we have included an educational mandate in the

legislation, responding to questions that were raised about education, but we're

going further. We're also retaining the research and consultation portion of the

old system to allow the minister to conduct and encourage research and carry out

consultations in human rights.

On another

point, the exposure bill, Bill 53, said that the tribunal would be able to

dismiss a complaint if a complainant did not accept a reasonable offer of

settlement. The responses on this point suggested that this proposal did not

serve the best interests of British Columbians. Again we listened. We have

removed this condition from the amendments contained in the bill now before the

House.

[1510]

We also had

suggested, in order to give the tribunal greater power to case-manage

complaints, that the tribunal had the power to order costs. The way that

[ Page 3990 ]

power was expressed in Bill 53 was not modified by any limits or guidance as

to when costs should be awarded. Some groups pointed out that this could mean

that people whose complaints were dismissed could be ordered to pay costs to the

respondent even though there may have been a reasonable basis to file the

complaint. These groups said this wasn't fair and that it would discourage

people from seeking justice through the tribunal. I respect that argument.

I also

know, however, that the sanction of costs has been and continues to be a useful,

if not necessary, tool in civil litigation to ensure that parties who bring

cases forward, who engage defendants in litigation that may cause them to spend

thousands of dollars or to put their lives on hold for months, if not years….

To ensure that parties who begin litigation think about the possibility that at

the end of the day, if their case is dismissed, they may have to bear the costs

associated with defending the case that probably should never have been brought

in the first place…. That is the practice in civil litigation.

It is an

old and honourable practice, but the argument here is that it does not belong in

human rights litigation. I thought long and hard about this one. In the end, I

have accepted the argument made — that the introduction of a broad costs

discretion would create a risk that people might be unreasonably deterred from

filing complaints. So this bill now provides that the tribunal can only order

costs against the party who has engaged in improper conduct during the course of

the complaint or who disobeys a rule or order of the tribunal.

The first

of those provisions, the improper conduct rule, is already in the current Human

Rights Code. In effect, Bill 64 returns to the status quo. The disobedience of a

rule or order power is essentially a mild form of contempt power and, I think,

will give the tribunal the muscle it needs to ensure that its rules and orders

are obeyed.

There was

more to the consultation, and there was more that we learned and more that we

have done. Another area of interest was our proposal to grant the tribunal a

special power to reconsider its own decisions to dismiss complaints that had

been dealt with through a

summary procedure. We heard the concern that this

would not be a very effective process, so we have changed it in the bill before

the House. Now challenges to decisions of the tribunal will be subject to or

subject of judicial review proceedings in court.

Likewise,

there was some concern over the proposal that would make the minister

responsible for approving special programs designed to improve working and other

conditions for disadvantaged people. Many of the submissions we received

suggested that there was a real possibility of a conflict of interest if the

minister had the power to approve special programs, which would include programs

proposed by government, so the bill now before the House gives the tribunal the

authority over special programs.

Mr.

Speaker, I went through these changes in some detail so that you and all members

could see that this bill is the result of a process that may fairly and

accurately be described as collaborative. We asked for input. We received it. We

listened, and we acted.

[1515]

Let me turn

to a conclusion. Discrimination is real. It hurts its victims, and it demeans

all of us. Discrimination often hurts most those who are most vulnerable. We

have a strong code, but it has been rendered ineffective by a flawed structure.

The rights in the code will not change. What will change is how those rights are

protected by a system that will be more accessible, more affordable and much

less confrontational.

The model

set out in this bill complies with international law requirements, including the

Paris principles, by continuing a human rights tribunal that is independent and

autonomous from government and that has a diverse membership, a broad mandate,

adequate powers to deal with complaints and sufficient resources. This bill will

enable government to put in place a human rights complaint system that meets the

needs of the twenty-first century.

It was the

economist E. F. Schumacher, famous as the author of Small is Beautiful ,

who said any fool can make things bigger, more complex and more violent. It

takes a touch of genius, he said, and a lot of courage to move in the opposite

direction. Well, I don't know about genius, but I can say that it has taken some

courage on the part of people in our community to move forward together to

participate constructively in looking for ideas and solutions for how we can

move forward together to reform the system that administers human rights — to

implement reforms that will ensure everyone has an equal opportunity to seek a

timely, fair and affordable remedy for their concerns.

Let me

conclude by thanking all of those around the province who have helped in this

vital reform process and by saying that I look forward to the debate that

follows.

J. Kwan:

I just want to touch on some of the basic principles around human rights before

I get into the discussion around the bill that is before us.

There are

some fundamental principles that guide the direction of where human rights

should go. It's one that many people have been involved in, in trying to craft

these principles and bring them forward. In fact, one institution that we all

look to in advancing a variety of rights across our nation is, of course, the

United Nations.

In October

of 1991 the Centre for Human Rights convened an international workshop to review

and update information on existing national human rights institutions.

Participants included representatives of national institutions, states, the

United Nations, specialized agencies, intergovernmental and non-governmental

agencies.

From this

conference a list of principles were established. These are now known as the

Paris principles. There's a long list of them, but I only want to highlight a

few that I think are central to the debate because they are what is at risk

before us under Bill 64.

Page 3991 ]

"Any

legislative or administrative provisions, as well as provisions relating to

judicial organization, intended to preserve and extend the protection of human

rights, in that connection the national institutions shall examine the legislation

and administrative provisions in force, as well as bills and proposals, and

shall make such recommendations as it deems appropriate in order to ensure

that these provisions conform to the fundamental principles of human rights.

It shall, if necessary, recommend the adoption of new legislation, the amendment

of legislation in force and the adoption or amendment of administrative measures."

One of the principles that were highlighted.

[1520]

Another one.

"To publicize human rights and efforts to combat all forms of discrimination,

in particular racial discrimination, by increasing public awareness, especially

through information and education, and by making use of all press organs."

Another principle.

Government departments, if they are included, should participate in the deliberations

only in an advisory capacity. The national institutions shall have an infrastructure

which is suited to the smooth conduct of its activities — in particular, adequate

funding. The purpose of this funding should be to enable it to have its own

staff and premises in order to be independent of the government and not be subject

to financial control, which might affect this independence.

Another principle.

In order to ensure a stable mandate for the members of the institution, without

which there can be no real independence, their appointment shall be effected

by an official act which shall establish the specific duration of the mandate.

This mandate may be renewable provided that the pluralism of the institution's

membership is ensured.

Basic principles

around independence, the need for independence for it to be a watchdog of human

rights, for it to advocate for human rights — one may argue those are essentially

the essence of the Paris principles.

In Canada

we enjoy some of the best human rights protections in the world. Perhaps it's

because we have these protections that we've begun to take these rights for

granted. We tend to forget that the best human rights laws on the books are

meaningless unless ordinary people can have their complaints fully investigated

and human rights laws properly enforced.

On May 30

the government of British Columbia introduced legislation to repeal British

Columbians' independent voice of human rights, the B.C. Human Rights Commission.

If passed — and I anticipate this bill will pass — the legislation will

make B.C. unlike any other jurisdiction in Canada. We'll become the only province

that does not fulfil Canada's international obligation to provide an independent

government agency with the ability to act as a watchdog over the fundamental

rights of all people to be treated with dignity and without discrimination.

The dismantling of the commission also means that there will be no public agency

to inform and educate British Columbians about their human rights and responsibilities.

The former

version, Bill 53, disregards the public dimension of human rights, which has

been repeatedly recognized by the Supreme Court of Canada and by our international

commitments. Bill 64 makes some adjustments, but it does not institute the changes

that need to be brought back into place for a full advocacy and educational

role on human rights, not just on an individual basis but broader than that

— across the communities — to look at systematic discrimination that happens

in our communities and to take that as a challenge to move forward in advancing

human rights.

In 1994 the

United Nations general assembly endorsed what I call the Paris principles, which

I mentioned stemmed from the conference that was held and which provided minimum

standards on the status and advisory role of human rights commissions. Canada

made a significant contribution to that document and urged the UN to adopt it.

Bill 53 certainly did not meet those minimum standards, and I would argue that

Bill 64 does not either.

By abolishing

the commission, B.C. will fail to meet the criteria of the Paris principles,

which require that human rights agencies have independence guaranteed by statute

or constitution, autonomy from government, diverse membership, a broad mandate

based on universal human rights standards, adequate powers of investigation

and sufficient resources.

The provincial

government says the bill will create an efficient, streamlined process for human

rights complaints. The fact is that it won't. It will leave the Human Rights

Tribunal, which will only adjudicate complaints, as the only human rights agency

in existence. By doing away with the current Human Rights Commission, which

receives complaints of discrimination, investigates them and then either dismisses

them, resolves them through mediation or refers them to tribunal for adjudication,

all complaints will be adjudicated whether they have any merit or not.

[1525]

The government

says that the proposed changes will create a more affordable system. It won't.

The new process will be more expensive for complainants, respondents and taxpayers.

Over the last five years only 15 percent of human rights complaints have been

referred to the tribunal. With a 600 percent increase in the caseload, borne

solely by the tribunal, the result will be inordinate delays, increased costs

and greater resource requirements.

The government

also says that the bill will create a more accessible system. It won't do that

either. Human rights complaints will be investigated, and the new system will

impose a six-month time limit for filing a complaint. The current rule states

that the complaints must be filed within a year. Complaints filed by individuals

but which have an impact on other individuals in similar situations — in other

words, complaints of systematic discrimination — would be nearly impossible

to deal with.

Under the

current legislation, the commission has a mandate to speak out on important

human rights issues, and it is entitled to become a party to human

[ Page 3992 ]

rights complaints that may have brought societal consequences. The commission

can seek remedies to systematic discrimination and isn't confined to dealing

with case-by-case complaints as is being proposed under Bill 64. Citizens will

be expected to rely solely on their own resources to pursue complaints, and

cases will be resolved solely on the basis of the personal agendas of the parties

involved. These are some of the issues that one must pay attention to as we

debate Bill 64.

The Attorney

General says that change, evolution, has advanced human rights over time. What

the Attorney General has brought forward to us today, in fact, does not forward

or advance the fight for human rights. What it does is regress us back in time

in the area of human rights. That's what it is. It is not a step forward; it

is a step backward.

Other jurisdictions,

you might want to argue, who have direct access to tribunals in the area of

dealing with human rights — in Europe, perhaps, as an example — have an

independence attached to it. They have watchdogs assigned to it. We don't. It's

a principle that was established in 1994. We Canadians, all of us, were signatories

to that, advocated for it, wanted to move forward on it. Now, in the year 2002,

what have we got? We've regressed back in time to take away one of the most

significant pillars required to enshrine human rights and to advance human rights.

That is the independence role and the watchdog role.

The government's

actions in firing the commission's chief commissioner and deputy chief commissioner

are in my view a serious violation of the principle of ensuring the independence

and autonomy of the provincial human rights mechanism. It is important to note

that in our research there have been few, if any, firings of human rights commissioners

in Canadian history, other than the firing of the chief commissioner by the

B.C. Socred government — a regression back in time.

The changes

proposed in Bill 53 and now in Bill 64, the Human Rights Code Amendment Act,

have prompted much activity within the human rights community. Interestingly,

many of the comments made by those organizations and individuals address similar

areas of concern — namely, that the elimination of the Human Rights Commission,

with all of its powers, authority, and capacity, is extremely problematic if

the province of B.C. is to be a province that protects human rights and promotes

justice and equality.

[1530]

[J.

Weisbeck in the chair.]

The response

to Bill 53, now Bill 64, by the human rights community has been remarkable.

Not only did organizations and individuals get together to discuss the problems

that were being proposed under Bill 53…. I recall over the summer attending

a couple of public forums in that regard, but they were unsuccessful, I think,

in persuading the government. There were some achievements, but there were some

key principles that they were unsuccessful in persuading the government to change.

What they were successful in was finding the time during the busy summer months

to research and write submissions to the Attorney General. The consultation

period was very short — over a summer period — another indication of this

government's appreciation for consultation. They say they're open and consultative,

but the reality is they make it extremely difficult for people to participate.

In spite

of that, because the bill that was first proposed, Bill 53, and now 64 are so

objectionable, groups have felt compelled to come together to speak out. The

organizations that have made formal submissions include but are not limited

to the Greater Vancouver Japanese Canadian Citizens Association; the Canadian

Centre for Policy Alternatives; Amnesty International; the B.C. Association

of Social Workers; the BCGEU; the West Coast LEAF Association; the Canadian

Association of Statutory Human Rights Agencies, CASHRA; and the B.C. Coalition

of People with Disabilities. These are just some of the submissions that were

made. In addition, dozens of individuals and organizations have written letters

objecting to the changes being proposed in Bill 53. And I'm sure, had the public

been given time to respond to Bill 64, which was only introduced two days ago,

you would have had more letters addressing the problems and concerns that exist

in Bill 64.

Our researchers

and I went back to look at some of the submissions that were put forward under

Bill 53 and cross-referenced the changes government brought forward under Bill

64. We found there were many points the government did not address from the

submissions from the public — the consultation the government had engaged

in. Some of the primary concerns in Bill 53 which were not addressed in the

changes made to Bill 64 can be summarized as follows: (1) the wholesale elimination

of an independent statutory body as is currently embodied through the Human

Rights Commission; (2) the elimination of the ability to address issues of systematic

discrimination; (3) the cohesive and punitive nature for complainants; (4) the

complete lack of a meaningful, open and transparent public consultation process

in the creation of Bill 53; (5) the role and mandate of the proposed independent

legal human rights clinic; and (6) the changes outlined in Bill 53 and in Bill

64 are in violation of the UN Paris principle.

While I presume

the introduction of Bill 64 was meant to address the concerns that were raised

by Bill 53, it is very disappointing to note that the recommendations made in

the submissions as outlined in the above six points fell on deaf ears. In the

context of Bill 64, I'll examine these points as they were addressed in the

submissions made to the Attorney General in order to impress upon this House

the importance of engaging in further discussion, negotiation and consultation

before any bill changes are made to the Human Rights Code and before anything

can be passed.

Government,

though, would have you believe that the Human Rights Commission was inefficient

and costly and that the new model would provide better

[ Page 3993 ]

access. I would like to actually just bring to the House's attention some myths

and facts — facts on human rights. The Human Rights Code was introduced by

the Attorney General on May 30. The new code replaces the current commission-tribunal

structure with a tribunal-only structure.

The Attorney

General has made a number of statements rationalizing the tribunal-only structure.

No. 1: there's a huge amount of duplication in the current human rights process,

which has both a commission and a tribunal. That's the myth. Fact: there's some

duplication but not a lot. Over the past five years, 15 percent of the cases

filed with the commission have been referred to the tribunal. At least two-thirds

of those cases settle before there is a hearing. This means the real duplication

really took place in only 5 percent of the cases, and that duplication was required

because you wanted to go through the process of determining what needs to go

to tribunal and what's not and go through the process of elimination. Is it

really duplication? I would argue that as well.

[1535]

Myth 2: going

to the tribunal-only model will lower the average cost per case. Fact: to date,

the tribunal process has been made much more expensive. The tribunal cost per

case was $8,871 while the combined tribunal-commission cost per case was $6,423

for the 2000 and 2002 budget years.

Myth 3: the

use of modern dispute resolution mechanisms will make the tribunal-only approach

faster, less expensive and less confrontational than the combined commission-tribunal

process. Fact: the tribunal and commission have been employing an array of dispute

resolution mechanisms. The commission offers mediation throughout the case management

process, based on the characteristics of the case. This has resulted in 30 percent

of the cases being settled or withdrawn. The commission has just completed an

early mediation pilot project where 67 percent of mediation attempts resulted

in settlement or withdrawal of the case. The merits of the project are clear.

As a result of the commission's investigation process, the tribunal has been

able to settle 70 percent of the cases.

There are

consequences for the respondent, complainant and society if too much emphasis

is put on settling cases. Justice is not necessarily served if a respondent

settles a false case. It is also not served if a complainant settles for substantially

less than a tribunal would award. Society is not served if cases are settled

without a remedy that deters future discrimination.

Since the

tribunal and commission are already offering a substantial amount of mediation,

there is only room for a small increase in the rate of settlement before there

are negative consequences for everyone.

Myth 4: the

tribunal process is faster than the investigative process. Fact: last year the

commission's average investigation took nine months, while the tribunal's average

decision took 19 months. The primary factors for determining the speed of the

process are the size of the tribunal members' or the human rights officer's

caseloads and the availability of the parties and their lawyers.

Myth 5: a

legal clinic with a budget of $300,000 can provide adequate legal advice to

persons who have filed a human rights complaint with the tribunal. Fact: last

year the bill for 120 cases at the tribunal stage was $500,000. The Ontario

Human Rights Commission has seven lawyers plus support staff to handle 100 cases

a year in front of its tribunal. A legal clinic that is supposed to handle the

current 19,000 inquiries plus 300 cases will require funding many times the

amount suggested by the Attorney General.

Myth 6: there

were many submissions to the human rights review discussion paper, and they

overwhelmingly chose the tribunal-only structure. Fact: there were only 11 submissions

to the human rights review. Three of them suggested a tribunal-only structure.

These are

just some of the points that I want to bring forward, because I think they're

essential. Government will have you believe what they want you to believe. What

I have just listed are the facts before you. I ask British Columbians to assess

for themselves what is true. Is it the spin of what the government tells you,

or is it factual information that was derived from the historical patterns of

human rights commissions not just in British Columbia but in other jurisdictions

as well?

There were

many official submissions, as I mentioned, by groups and individuals. People

have come forward who shared their opinions with the opposition caucus, with

letters and statements describing what the loss of the Human Rights Commission

would mean for them.

I'd like

to actually just take a moment now and put some of these letters on the record.

I think it's worthwhile for us in this Legislature to hear the voices of British

Columbians, the people who put us here, and what they really think about the

changes that are being proposed by the Attorney General.

[1540]

I won't mention

the names of the individuals to protect their identities. This is from an individual

in Vancouver: "We're writing to express our concerns about the proposed

Bill 53." Now, this of course references Bill 53, and I've sorted out the

letters to only put onto the record — some of the letters, I should say —

those that are now relevant to the debate before us on Bill 64. But these letters

were received when Bill 53 was tabled. Since it's only been two days since Bill

64 has been introduced, not that many letters have come in, although I've received

some that directly address Bill 64.

"We're

writing to express our concerns about the proposed Bill 53. The proposed legislation

will serve to dismantle the B.C. Human Rights Commission. Its effects will

be to prevent and discourage people with legitimate complaints from pursuing

them. This is a huge step backwards, as the commission was established in

1997 to create a fairer process to address human rights issues. How does eliminating

human rights mechanisms and processes serve to promote the Olympic values

your government purports to support?

[ Page 3994 ]

"People

of colour and other disadvantaged groups face discrimination daily and continue

to be targeted by your government. You will notice that there are many complaints

filed on the grounds of racial discrimination. With legal aid cutbacks, people

on limited incomes will be hard-pressed to bring forward a human rights complaint

without financial assistance.

"The

B.C. Human Rights Commission does have significant value to our society. It

has the mandate to provide education, conduct research, hold consultations

and public hearings and ensure that complainants receive legal representation

at hearings and appeals in matters relevant to human rights. The new legislation

serves to eliminate all of this. We believe that this will increase systematic

discrimination in society. We urge you to withdraw this bill and work to improve

our human rights in British Columbia."

In fact,

actually — my apologies, Mr. Speaker — it's not just from an individual.

This is actually from the Vancouver Association of Chinese Canadians, the society

who has put forward this letter.

Another letter.

This one is from an HEU disability rights standing committee member and its

working group, the CLC disability rights working group:

"I'm

writing to express my concern about the proposed Bill 53. In my view, dismantling

the B.C. Human Rights Commission will prevent people with legitimate complaints

from pursuing them, largely due to financial considerations. This is also

taking a huge step backwards, as the commission was established in 1997 to

create a fairer process to address human rights issues.

"People

with disabilities, who face discrimination every day, are again being targeted

by this government. More than one-third of all complainants are people with

disabilities. With legal aid cutbacks and the new disability act that could

reduce an already limited income, people with disabilities would be hard-pressed

to bring forward a human rights complaint.

"The

B.C. Human Rights Commission has significant value to our society, as it has

the mandate to provide education, conduct research, hold consultations and

public hearings and ensure complaints receive legal representation at hearings

and appeals in matters relevant to human rights. The legislation will mean

that this has to be done on an individual basis without assistance available.

Complainants will not be able to bring their complaint forward. It is my belief

that this will increase systematic discrimination."

I just want

to pause for one moment. Yesterday we were engaging in debate with the Minister

of Human Resources. Part of the debate brought forward yesterday was that the

Minister of Human Resources has now brought forward retroactive legislation

that will penalize people who are applying for income assistance if various

conditions are applicable to them, such as if they had to quit a job. It might

well be because of discrimination issues in the workplace such that they were

unable to accept a job, and penalties would then be brought in place. When I

asked the minister, "How does one prove or establish that a person quit

a job because that person was faced with discrimination in the workplace?"

the minister's simple answer was: "Well, go file a complaint."

Well, the

only problem is that the Human Rights Commission no longer exists. The legal

aid support that used to be there to help people go through administrative injustices

by filing complaints and going through it with advocacy and support…. That,

too, is now gone. How does one expect individuals who are faced with disability

challenges in life to be able to prove that point to the ministry in order that

they be eligible for support? This applies even for people with disabilities.

Other groups

have sent forward letters around concerns on the changes around human rights

— the Vancouver Committee for Domestic Workers and Caregivers Rights. I'll

just read a part of their letter into the record.

[1545]

"The

Vancouver Committee for Domestic Workers and Caregivers Rights would like

to express our opposition to the B.C. provincial government's plan to abolish

the Human Rights Commission in the province. This abolition, for one, and

there would be many more, would mean less protection for the most vulnerable

workers and members of the society, including the domestic workers and caregivers."

To add some

information to the background around the domestic workers and caregivers, we

know that the domestic care workers are often from a different country. Some

may face language barriers or cultural barriers, and they often live in isolation.

Their work and their existence very much depend on the employer. Employers very

often take advantage of that, because of the isolation and because of their

dependence on the employer to be able to stay in this country, hoping to build

a better life for themselves.

Oftentimes

people are faced with discrimination. What to do without a place that they can

go to and file a complaint? You know, it's not just on an individual basis but

to look at it from a broad-based basis, from a societal standards basis, to

see how you can advance human rights for this group of workers in our community.

That opportunity is now gone under Bill 64.

From the

CAW:

"I'm

writing on behalf of thousands of CAW members and their families living in

British Columbia about your government's decision to eliminate B.C.'s Human

Rights Commission. Human rights commissions across this country have played

a major role in shaping the kind of society we're privileged to live in.

"The

most vulnerable people in our society will have no help in taking up their

cause with justice. Victims of sexual harassment, gender discrimination, racial

discrimination and discrimination on the grounds of disability will have to

accept subjugation without meaningful access to justice, and systematic discrimination

will continue unchallenged.

"Since

your government's election, we have seen vicious attacks on ordinary people

and marginalized groups in British Columbia. The government has steadily taken

away services for people with disabilities, visible minorities and other disadvantaged

groups. By eliminating the commission, your government will eliminate one

of the last lines of defence for the victims of discrimination.

"I'm

appealing to your government to reverse its decision. If the commission is

eliminated, the only recourse for victims of discrimination would be the

Page 3995 ]

Human Rights Tribunal. Many individuals find it difficult

to proceed in that forum because of the government's cuts in legal aid and

the intimidating nature of the adjudication process."

The North

Shore Women's Centre also write to express their concerns over the proposed

changes in the Human Rights Code. They're concerned because, very simply, it

would adversely affect the women who use their services. To take a paragraph

from their letter:

"Without

the Human Rights Commission, there is no public body to represent the public

interest in the elimination of discrimination in this province. Your legislation

has attempted to fill this gap by allowing the tribunal to ask outside parties

for an opinion on the matter before them, but this assumes their organization

is able to fill this role. This organization does not have the resources to

advocate for women making a complaint nor to adequately present an opinion

before a tribunal. With the cutbacks and restructuring that the present provincial

government has forced on women's organizations, we're in no way equipped to

intervene in cases before the Human Rights Tribunal."

As these

letters are being put on the record, it becomes clearer and clearer that this

one decision, combined with many of the other decisions from this government,

centres on attacking individuals' rights in British Columbia. They accumulate

and have a compounding effect. That is the message that I think is also essential

for this government to understand. Each bill in and of itself has one component

of it, and when you add all the other pieces of legislation, all the budgetary

cutbacks, it's a cumulative effect that's changing the face of British Columbia

and the rights that were enjoyed in British Columbia as we know it.

[1550]

The government

would like to say we're advancing into the future. Many would disagree. This

is a regression back in time for the rights that were fought for so hard by

so many people, people preceding me. They see those rights eroding before them,

before their very own eyes, just crumbling away in less than a year and a half.

A letter

from a strong advocate on the issues around human rights:

am dismayed that you plan to proceed with amendments to the Human Rights Code

of British Columbia. Let me address this question entirely from the point

of view of your government. In a democratic society, one of the functions

of a human rights process is to divert protest into a benign dispute resolution

system. This prevents a build-up of potentially explosive anger among those

parts of society who feel wronged, disaffected for whatever reason.

"The

B.C. Human Rights Commission received and processed 19,000 inquiries last

year, of which only 766 became formal human rights complaints. The other 18,000-plus

are people who believe that they have been wronged, treated badly, suffered

an injustice, and who have been counselled effectively — from the point

of view of the government.

"For

so long as those 19,000 people and others like them believe that they have

a place which listens to and addresses their complaints, government is insulated

from more radical forms of complaint by those 19,000 people. It is hard to

imagine a more efficient process, from a government's point of view, than

one which eliminates 80 percent of complainants before their grievance even

becomes a formal complaint.

"Mary-Woo

Sims, the commissioner of human rights during the reported period, has been

successful in reducing the median processing times for human rights complaints,

from initial call to resolution, including referral to the B.C. Human Rights

Tribunal, to about eight months — far better than the time it takes to reach

a case settlement conference in small claims court and, I venture to suggest,

better than the resolution times of family and criminal courts as well.

"Ah,

but critics say that is only the preliminary stage. Then people have to go

through the tribunal — true, but true only of 16 percent of the complaints.

Of the 19,000 complaints that it received, the B.C. Human Rights Commission

successfully resolved all but 125 or so, which were then referred to the tribunal.

"This

is the body you want to get rid of? From the point of view of your government's

natural constituents, the gatekeeping function performed by the B.C. Human

Rights Commission was an invaluable one. The new system opens up that community

to human rights complaints by every one of those 19,000 people. For these

reasons, Mr. Attorney, I respectfully suggest that it is worth rethinking

the thrust of Bill 53."

I have quite

a number of more letters. I'd like to just put this last one, though, on the

record. It doesn't mean that there aren't more, but I think we're starting to

get the gist of the points from some of the folks who have a point of view they

want to share with the members of this House. This is from the December 9 Coalition.

"I'm

writing on behalf of the December 9 Coalition, a working coalition on issues

affecting the lesbian, gay, bisexual and transgendered communities in British

Columbia. For our organization the death of the B.C. Human Rights Commission

will have a devastating impact.

"Queers

have won major advances throughout the human rights system in B.C. The first

decision after sexual orientation was included in the code in 1992 was a decision

that lesbians were entitled to sperm from a doctor who was the only provider

of assisted insemination in the city and who was refusing to inseminate lesbians.

"We

have won advances for trans people, which puts B.C. at the head of the country

in transgendered rights. Decisions establish that transwomen have the full

right to participate equally as women in B.C., including in women's washrooms

and women's organizations.

"And

we have continued to win rights for lesbian families. Lesbian co-parents can

have the names of both of them recorded on their newly born child's birth

certificate.

"And

we cannot forget the issue of gay pride proclamations, a battle which sees

one mayor after another confronted with the consequences of their bigotry

and intolerance across the province.

[1555]

"The

decisions themselves, of course, are decisions of the tribunal, but what the

commission offers is an indispensable part of what our community needs. The

commission is a safe place for queers to phone to talk about whether they

have a complaint. Their complaint is investigated without cost to them, and

the evidence they will need to win their case is gathered by the investigator.

[ Page 3996 ]

"Taking

the first step to complain about discriminatory treatment is an enormous step

for anyone who does it. Without the support of the commission, I have no doubt

that the number of complaints from the most marginalized communities will

fall off."

The letter

has more components to it, but these are just a sampling of how the community

feels. I have presented these letters for the information of the House, though,

through the voice of the people. I hope they are being heard in this House.

While Bill

53 was totally unacceptable, Bill 64 does not go anywhere near far enough to

addressing the many concerns that were raised. Essentially, Bill 64 is a return

to the pre-1997 human rights system, where the human rights body in this province

was the Human Rights Council. We fought hard for the creation of the Human Rights

Commission. It should not be abolished after only five years.

The letters

I've read onto the record today all agree that the proposed human rights legislation

is insufficient and unacceptable. Bill 64 will not only be an embarrassment

for the province of British Columbia at the international level, but it will

mean that the citizens of this province will suffer an increase in human rights

abuse. Citizens will suffer.

Currently,

the protection and promotion of human rights are understood to be beneficial

for all citizens of this province. It is understood that human rights complaints

not only serve to rectify individual circumstances but are also a public service,

insofar as human rights complaints work to eliminate discrimination in our society.

The changes

proposed in Bill 64 dramatically change that understanding. Bill 64 will see

the creation of a human rights system that is a private matter before individuals.

In addition

to the letters, I've also received petitions. The community, again over the

summer period, worked hard to call on people who support the advancement, the

protection, of human rights to come forward and say no. In a short period of

time the community — the defenders of human rights, if you will — have gathered

1,235 signatures. That was as of October 21, 2002.

The petition

was addressed around Bill 53, but I think now it appropriately applies to Bill

64 as well, because the principles of what this group is advocating for and

petitioning about remain the same. The petition reads as follows:

"We,

the undersigned residents of British Columbia, draw the attention of the Legislature

to the following.

"Canada

is a signatory to both the UN convention on human rights and a sponsor of

the Paris principles. By abolishing the Human Rights Commission, B.C. will

not meet its obligations under the Paris principles to provide a human rights

agency which has independence guaranteed by statute or constitution, autonomy

from government, diverse membership, a broad mandate based on universal human

rights standards, adequate powers of investigation and sufficient resources.

"Therefore,

we request that the Legislature maintain a separate and independent human

rights office; that the provincial government meet its obligations to provide

human rights education; that a separate and independent human rights office

have the powers and resources to investigate human rights complaints; that

legal aid funding be restored to assist victims of human rights discrimination."

There are 1,235 signatories across the province, collected in a short period

of time.

I mentioned

that Bill 64 was only introduced a couple of days ago. There weren't a lot of

letters that came forward in terms of what people thought about Bill 64 because

there was inadequate time, too short a time for people to really respond, but

there are some very dedicated people who have taken the time and done a brief

analysis on some of this. In addition to what I've said, they've also brought

forward their opinions to be shared in this House through me.

I'll now

read an analysis by Mary-Woo Sims, a former chief commissioner for the Human

Rights Commission, who has worked on and prepared an analysis on Bill 64. She

has worked tirelessly to promote a strong, responsible and fair human rights

system in B.C. I think that given the extremely short time frame in preparation

for the debate and analysis of Bill 64, it is a demonstration of her dedication

to the protection of human rights in this province that she was able to respond

so quickly.

[1600]

Here's what

Mary-Woo Sims has to say:

"First,

Bill 64 is a vast improvement over Bill 53…"

I have to just pause here for one moment and say that improvement

came from the community advocating for those changes. She continues on to

say:"…but unfortunately, that's not saying much about Bill 64 either.

Under Bill 64 disclosure in mediation is now protected. Assignment of inquiry

act powers to the tribunal will give tribunal powers more of an opportunity

to access information outside of the tribunal process. However, the ability

of the tribunal to access information outside of the tribunal process presents

other problems, such as an argument — that of an apprehension of bias. How

can the same entity that investigates a complaint subsequently make a finding

in a complaint and order a remedy?

"Education

is now dealt with in the statute, but there are problems with this, as education

is now the responsibility of the minister, and it is only to promote an understanding

of the code. There is no discussion about education that promotes the purposes

of the code and helps eliminate discrimination. There is a difference about

information and education about the code and information and education that

is proactive and designed to create a discrimination-free society.

"Another

big problem with making the minister in charge of information and education

about human rights is that this is the same minister that defends government

discrimination. It's like putting the fox [in the henhouse] in charge of educating

other foxes about how to guard the henhouse.

"The

cost provisions are not as open-ended and onerous as in Bill 53. However,

there are some other problems with the

section which enables costs to be awarded

that I will discuss later on.

"Now,

to the ongoing and new problems with Bill 64. Bill 64 still does not meet

with the guidelines set out in the Paris principles concerning the operation

of human

Page 3997 ]

rights regimes. Bill 64 still does not establish an independent

human rights agency other than the tribunal to administer human rights in

the province. It is questionable whether or not, given the tribunal's status

as an adjudicator of complaints, whether it would be B.C. who would be eligible

for membership in organizations such as the Canadian Association of Statutory

Human Rights Agencies or the International Association of Official Human Rights

Agencies. Ineligibility to join these organizations would isolate B.C. from

the rest of the Canadian and international human rights community.

"Another

general comment is that with Bill 64, B.C. is essentially reverting back to

the human rights administrative structure pre-1997, when human rights was

administered by the B.C. Human Rights Council. This administrative structure

resulted in an average complaint-processing time of two years plus and a backlog

of 1,500 cases, which the commission eliminated in two years. There is no

discussion of budget, but in my view, in order to prevent the backlog from

recurring, the tribunal would have to be provided with all of the budget of

the former Human Rights Commission. I frankly doubt that will happen.

"Bill

64 still does not provide for legislated legal assistance for victims of discrimination.

There is reference still, in the AG's press release on Bill 64, that a legal

clinic will be set up, but we have yet to learn the details of this, such

as: what is the budget to be provided to the clinic? Will there be a bidding

procedure to ensure that those delivering the services to be provided through

the legal clinic are not only cost-effective but the best service available?

How will those who run the legal clinic be held accountable to the taxpayer

and to the community?

"Bill

64 still does not provide for an independent investigation into a complaint

of discrimination. Individuals are still not guaranteed a hearing before the

tribunal, as the tribunal can still perform the gatekeeping functions of the

former commission.

"Bill

64 does not provide for a public role in advising the tribunal on its work,

as the citizens Human Rights Advisory Council is still gone. Under Bill 64

systemic and representative complaints have completely fallen off the radar,

and of course, the government is the big winner here. The government proportionately

has the highest number of systemic complaints filed against it.

[1605]

"Under

section 6 of Bill 64 it will be the minister who 'may conduct or encourage

research into matters relevant to this code.' It will be very interesting

to see what types of research he'll request. Will he conduct research into

the human rights performance of government like the commission did with respect

with disabilities? Will he conduct research into the employment equity performance

of government? Will he be critical of his cabinet colleagues if they are human

rights violators?

"Also,

how will he encourage human rights research? Will there be money made available

to NGOs? Will the Fraser Institute get the research dollars?

"This

same

section says the minister may carry out consultations relevant to this

code. Well, with our experience with the way in which consultations have been

carried out with respect to Bill 53 and now Bill 64, need I say more? There

has been no change in the time within which a person has to file their complaint.

It is still six months instead of a year.

Section 22.1 talks about interveners

to a complaint. What resources will be made available to NGOs to carry out

this work?

"Section

27(1) concerns the dismissal of the complaint. The entire

section is a gatekeeping

section. The tribunal can still dismiss all or part of a complaint with or

without a hearing. This gatekeeping function previously performed by the commission

through intake and investigation staff now will be performed, at far greater

expense, by a tribunal member. Compare the pay of intake and investigation

staff and a tribunal member.

new addition in the powers to dismiss a complaint is that 'there is no reasonable

prospect that the complaint will succeed.' The provision is akin to no probable

cause. This probable cause test is greater than usual human rights case-law

test, which is balance of probabilities. The probable cause provision is normally

used by the police to ask for warrants from a judge or to charge a suspect

with a crime. A probable cause test is a much higher test, which will likely

result in more complaints being dismissed early in the process than later.

The colleagues I have discussed this provision with believe that dismissals

under this provision of Bill 64 will result in many legal arguments about

whether or not there is reasonable prospect of success and what 'reasonable

prospect that the complaint will succeed' actually means.

"Section

27 expands the ability of the tribunal to make rules respecting practice and

procedure to facilitate just and timely resolution of complaints. The whole

section is extremely legalistic, and costs can be awarded if you do not comply

with the rules. Also, the tribunal is in a position to make these rules without

any prior consultation or public input. There should be public consultations

on the development of these rules to ensure they are not unduly onerous for

the parties.

"Section

27.6, new, says that 'a member or a person appointed, engaged or retained'

can now assist parties to a complaint, through mediation or any other dispute

resolution process, to achieve a settlement. This does not necessarily mean

legal assistance. Or does it? Why only refer to assistance during the mediation

process? Why not include assistance throughout the process" — if justice

is to be served?

"While

the specific reference to the number of tribunal members has been struck,

the new wording contains no commitment to the size of tribunal, which means

they can have a free hand to starve the system and parties to the point that

they give up. While previous critiques of Bill 53 have not included a discussion

of the term and independence of the tribunal and its members, past experience

holds that even when the legislation says the term is five years, as it does

now in

section 31 of Bill 64, what prevents the government from dismissing

the tribunal or its chair or its members prior to the end of their term? The

government thought nothing of ending the terms of the chief commissioner and

deputy chief commissioners prior to their legislated terms. How will the government

ensure the independence of the tribunal from government interference?

"Although

the Bill 53 provisions around costs have been modified, there is still the

ability of the tribunal to award costs if a rule under

section 27.3(2) is

breached.

Section 27.3 is so legalistic, one can imagine an unrepresented

party being ordered to pay costs because they were late in filing a response

to a letter.

"Under

Bill 64,

section 30, terms of settlement that can be enforced are limited

to those that could have been ordered by a tribunal. This will remove one

of the

Page 3998 ]

incentives to settle, which was the prospect of getting creative.

This also will provide respondents with an opportunity to settle, and then

go back to the tribunal and get the settlement pared back.

[1610]

"And

of course, there is the litigation that will flow from trying to sort out

what a tribunal would have agreed to.

Section 38 talks about the tribunal

being able to modify an order made under

section 37, which is the remedies

section of the code. Under the old code any party could apply for a modification.

Bill 64 now says that any party or person can apply to modify the order. Why

was that change necessary? What is the change meant to address?

"Bill

64 enables the tribunal to approve special programs. Although this is a change

from Bill 53, when it was the minister who could approve special programs,

it is still a problem. What resources will the tribunal have to assess whether

a special program will, in fact, ameliorate the condition of disadvantaged

individuals or groups? The Bill 64 provision, which now allows the tribunal

to approve these programs with or without notice to any other person, can

exclude the proper role of bargaining agents to be consulted and have a say

in the special program that an employer wishes to engage in. Is this a way

around collective agreements? Is this a way to shut out unions?

"And

finally, with regard to this section, the same tribunal that approves a special

program could be the same tribunal which receives a complaint about the special

program."

It would

be useful if the minister would hold off proceeding with Bill 64 until the public

has had a chance to look at this new bill and have a proper debate on it.

Mr. Speaker,

a lot of the people in the community, in fact, have asked me to raise this question

in the House. If what the government purports to be true — that under this

new system, this new model, it could still advance and protect human rights

in British Columbia; that it is a more cost-efficient system; and that it allows

better access to justice for British Columbians — well, then let's have an

independent review on this. Have the auditor general review this and make a

decision independent of government. If the goals which the Attorney General

says could be achieved under this new bill relative to the old Human Rights

Commission model…. Then let someone else evaluate that — not the spin that's

being brought forward by the Attorney General and the government. Let someone

else evaluate that. I certainly would support such a request and for the auditor

general to do such a review on the changes around the Human Rights Code.

The submission

that has been brought forward, as I mentioned earlier, points to some of the

issues, but there were six points I wanted to touch on when I began this debate

that are important around Bill 64. What are they? The elimination of the Human

Rights Commission, which I've touched on. The elimination of the ability to

address issues of systematic discrimination. The tight time limitations for

complainants, which I believe will prevent access to human rights for people.

The complete lack of a meaningful, open and transparent public consultation

process. The role and mandate of the proposed individual legal human rights

clinic. Also, the violation of the UN Paris principles, which, again, I've touched

on.

Before I

go on to talk a little bit more about some of the submissions and the issues

they raise, I want to just say this as well. Perhaps the Attorney General is

sitting there thinking, "Well, she's only citing the people who don't agree

with the changes," but you know, I actually spoke with people who agree

with some of the changes as well.

I don't want

to name the person because everybody's afraid of retribution from this government,

quite frankly. People are very afraid that they will be penalized, so I won't

mention the name of the organization or the individual who actually spoke with

me about this.

Here's what

the individual had to say, amongst criticisms of the changes that were brought

forward and amongst recognition of the community who worked hard to fight for

changes first proposed under Bill 53, and now some of those have been remedied

under Bill 64. To sum it all up without repeating some of the arguments, here's

what the person had to say: "I suppose this is the best within a bad lot."

That's what

people had to say: "It is the best within the bad lot." Not to say

that we're the best within the best lot, but rather to say that we are the best

within the bad lot. So that is to say out of the worst things that could actually

happen, what could you look to see? Well, it's not the worst "worst"

within the bad lot, but it certainly is not the best within the good lot. It's

like sort of reaching down into a barrel and picking up an apple and seeing

how many worms you want to see within it.

[1615]

That's what

the people who support the changes had to say to me, and those are their thoughts.

I quote that directly from the individual with whom I spoke about what they

have to say.

W. Cobb:

Or what they meant to say.

J. Kwan:

No, actually. The member for Cariboo South said: "Or what they meant to

say." If the member for Cariboo South took the time to talk to the people,

he will know very well what it is they meant to say. I'm not putting words into

the individual's mouth. The individual said point blank…. I said: "Is

this what you think the division and the direction that the human rights should

go?" The answer was: "This is the best within the bad lot. That's

all that we could do. That's all that we could have."

Please, do

not interpret for yourself what you wish to be true and the reality of what

the community had to say about what this government is doing in dismantling

human rights and the advancement of human rights.

I want to

now turn back to some of the issues that were brought back from community groups

around these changes, things that are still applicable for Bill 64. I've spoken

a lot about the elimination of the Human Rights Commission. One of the associations

that perhaps brought forward one of — I shouldn't say one of,

[ Page 3999 ]

because there were so many ? the strong submissions against the proposal to

eliminate the B.C. Human Rights Commission is a group called the Canadian Association

of Statutory Human Rights Agencies, CASHRA. I will only quote certain parts

of this very detailed, excellent submission onto the record.

What the

submission from CASHRA had to say is this:

"Neither

a human rights tribunal nor an organization not founded in law are to be considered

institutions envisioned by the Paris principles related to the status and

role of domestic human rights commissions.

"Both

the ordinary courts and the human rights commissions offer adjudication on

individual complaints regarding human rights violations as well as various

judicially enforceable remedies where violations are made out. However, in

theory at least, the human rights commissions model offers a number of advantages

over the traditional courts. Typically, human rights commissions (1) are composed

of people with expertise in human rights; (2) have a broader institutional

mandate, which includes promotion of and public education about human rights;

(3) are more accessible to complainants — they have less formal procedures,

and more importantly, if they accept a complaint, the commissions will usually

investigate and pursue it on behalf of the complainant; (4) can initiate their

own reviews of policies and practices even where no complaint has been filed

and can issue public reports accordingly; (5) are obliged to report regularly

to parliament or to the provincial or territorial Legislature, as the case

may be, not only on their own operations but also on the state of human rights

in their respective jurisdictions.

"Under

B.C.'s proposed amendments the following functions currently residing within

the B.C. Human Rights Code and the mandate to its commission will be eliminated

from the purview of statutory and public interest: to monitor progress in

achieving equality in British Columbia; to create mechanisms for providing

the information, educating and advice necessary to achieve the purposes of

the code; developing and conducting a program of public education and information

designed to promote an understanding and acceptance of the code; conduct and

encourage research into matters relevant to this code; and to hold public

hearings and consultations regarding matters relevant to this code.

"Instead,

the B.C. government suggests the government itself, along with the legal clinic,

would offer preventative education and training. As well, the clinic would

offer legal advice and support to parties involved in complaints. Again, the

independent nature of this clinic and its educative role are not clear as

there is no legislative guarantee with respect to its existence, funding,

representative composition and public accountability.

[1620]

"Though

the Paris principles acknowledge that not all human rights commissions have

the power to hear and consider complaints concerning individual situations,

they state that such a power should be entrusted, whether a commission or

another body, without the prejudice to the principles concerning the only

powers of the commissions that should exist.

"The

abolishment of the B.C. commission along with the powers described above would

mean that an independent, neutral, pluralist and adequately funded institution

established under the law would no longer exist in that province to carry

out the following responsibilities and powers for the promotion of human rights

espoused by the Paris principles.

"Finally,

under B.C.'s proposed changes,

section 42(3) of the Human Rights Code would

permit the minister responsible for the code to approve any program or activity

that has as its objective the amelioration of conditions of disadvantaged

individuals or groups.

Section 42(4) of the revised code would deem any such

special program or activity approved by the minister under

section 42(3) not

to be in contravention of the code. This proposed amendment appears to give

the B.C. government, a non-neutral body, an interpretive power in defence

of itself and of any of its programs or activities that purport to assist

disadvantaged groups against the claim of discrimination. The amendment would

thus insulate the government from scrutiny and review of a matter that would

normally be, and should properly be, the purview of an independent and neutral

administrative agency or a quasi-judicial tribunal.

"In

essence, B.C.'s proposals to abolish its Human Rights Commission would leave

the province with virtually none of the standards set out in the Paris principles

intact.

"Another

important example of why human rights commissions should exist and have a

dual compliance and promotion mandate is that commissions combine a multifaceted

ability to monitor the status of human rights; inquire into matters; potentially

make use of the powers of investigation; draw attention to and publicize particular

situations or potential violations of rights; address the reaction of and

hold accountable those who are responsible, governments in particular; enjoin

in or initiate complaints or intervene in cases on behalf of particular vulnerable

and marginalized groups.

"Even

if commissions do not routinely exercise their ability to initiate complaints,

this power can act as a deterrent while commissions first and most appropriately

take steps into inquiring into matters and hold out a carrot incentive by

encouraging others to be more educated, cooperative, and freely take up their

responsibility to respect, protect, promote and fulfil human rights obligations.

human rights tribunal, by design as a quasi-judicial entity, does not have

a particular and broad capacity to promote and advance understanding of human

rights in this manner. Though non-government organizations play a vital role

in this respect, the capacity they engage in all these functions in a combined

and multifaceted fashion is limited by their status as entities whose existence,

scope of mandate, representative composition and access to financial resources

are not guaranteed by law.

"Far

from abolishing the existence of human rights commissions, more and more countries

around the world, including Canada's newest territory, Nunavut, have been

or are in the process of establishing new commissions in keeping with Canada's

historic example. Canada is recognized internationally as a leader in this

area and continues to play a supporting role abroad.

"CASHRA

strongly exhorts the government of British Columbia to maintain its Human

Rights Commission and specifically to respect its obligations under international

law with respect to national and international standards, to apply these standards

in its review and revision of human rights legislation, and choose strategies

and mechanisms that will mean that an

Page 4000 ]

independent and neutral Human Rights Commission, one that

is effective and efficient, will be at the core of a system of human rights

in British Columbia."

That's one submission — another one.

[1625]

The Greater

Vancouver Japanese Canadian Citizens Association wrote a small paragraph that

I quote from their submission.

"Many

writers expressing concern about the bill are alarmed about the loss of government

watchdogs or monitoring to ensure human rights protections are functioning

effectively. The Greater Vancouver Japanese Canadian Citizens Association's

human rights committee shares in this concern. It is essential to maintain

an independent statutory body that will review the effectiveness of the human

rights service system and ensure that human rights standards will be upheld

in B.C. Further to monitoring, this institution should be mandated to perform

other functions, such as protecting and promoting public interest priorities

in human rights and addressing, researching and reporting on equality and

other social development concerns in human rights."

The

B.C. Association of Social Workers: "Perhaps

the most obvious change to human rights protection envisioned under the bill

is the elimination of the Human Rights Commission. In statements made since

this move, the Attorney General has suggested that the elimination of the

commission and sending complaints directly to tribunal will result in more

timely resolution of complaints. While timely handling of complaints is a

laudable goal, we believe that this change reflects a fundamental misunderstanding

on the part of the government of the scope of a credible human rights system.

"Human

rights commissions have traditionally carried out functions other than simply

processing human rights complaints. They're expected to do research on issues

affecting equality-seeking groups, to conduct hearings on issues affecting

those groups and to develop reports to the Legislature on these issues. They're

also expected to develop educational programs and materials which further

the goals of equality and inform the public about their rights and responsibilities

under the human rights legislation.

"They've

also served as a body that ensured that complaints were settled in a way that

not only served the interests of the two parties but also met the interests

of the general public as well. As one example, if a complainant complaining

about a poisoned work environment agreed to a settlement that dealt with his

or her hurt feelings but not the underlying issue, the commission was expected

to ensure that the underlying environment issue was dealt with as well. With

the elimination of the Human Rights Commission, it appears the government

will limit the new human rights mechanism's role to merely being an arbiter

of private disputes bet