1995 Legislative Session: 4th Session, 35th 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)

TUESDAY, JULY 11, 1995

Afternoon Sitting (Part 2)

Volume 21, Number 27

[ Page 16863 ]

The House resumed at 7:30 p.m.

[N. Lortie in the chair.]

Hon. C. Gabelmann: I call committee stage on Bill 28.

ELECTION ACT

(continued)

The House in committee on Bill 28; N. Lortie in the chair.

section 235.

J. Dalton: The wording in this

section caught my eye, because it provides that there can be penalties under this part, which is

part 12, in addition to any other in any other part of the act in respect of the same matter. There's a concept in criminal law dealing with multiple convictions, and although the courts don't have to, they tend to shy away from penalizing twice for the same offence. Given that we're dealing with offences here and that

section 235 refers to matters elsewhere in the bill which may also be offences, let me give an example and see whether this would violate the multiple convictions provision.

Section 234.2(1)(

b) provides for a penalty of ten times the amount by which one exceeds advertising limits. That's a penalty; it's ten times the excess. Just as an example,

section 237(3), which we're about to come to, provides that an unincorporated organization could be convicted and penalized $5,000. It would seem to me that that might be an example with multiple conviction potential. I'm wondering whether that sort of thing was considered when

section 235 was drafted and whether

section 235 might not be challenged in any court proceedings that could come up.

Hon. C. Gabelmann: I hope the member recognizes that this is not criminal law we're writing here and that double jeopardy, which is what he's referring to, is not a factor.

Second, administrative penalties don't follow upon convictions, but are imposed by the CEO. The member shrugs, but the reality is that they are not convictions; they are penalties. Penalties don't follow convictions. There is obviously the opportunity for an activity to result in a conviction, but that's not double jeopardy.

Section 235 approved.

section 236.

J. Dalton: Subsection (1) states that the approval of the CEO is needed in order to commence a prosecution. It strikes me that this is very unusual. Normally, of course, someone reports information to the police. They then should be able to investigate and report to Crown counsel as to whether charges would be recommended. Is this

section saying what I believe it is saying, that a legislative officer would be in a charge approval position? That doesn't seem to me to be correct, so I need some clarification on that point.

Hon. C. Gabelmann: What we have done here again is to learn from others and to follow the law in many parts of the rest of Canada, where, on violations of this act, the charging or the prosecution cannot occur without the consent of the CEO. That's not uncommon in Canadian jurisdictions.

Section 236 approved.

section 237.

A. Warnke: I just want to pursue one aspect of this. I know one legal argument that could be put forward, but perhaps that could be put forward by the Attorney General. I'm looking for a clarification, essentially, that when a prosecution for an offence, as it stipulates here, is brought against an unincorporated organization "in the name of the organization," then for the purposes....

It reads: "...for the purposes of the prosecution, the unincorporated organization is deemed to be a person." There's an argument I'm aware of, and I guess everyone is; but still, it needs to be mentioned that when there is an incorporated organization, it is to take up any fines, or whatever, when there is a charge and then a conviction brought against the corporation. On the other hand, I can think of other examples where corporations have violated the law, and the directors have been prosecuted and, in some cases, even brought to jail, and that sort of thing.

What I want to seek here is.... Let's say that there is a violation in election advertising, and then there is a charge and a conviction. According to this, the sponsors, supposedly under

section 230, which we have passed.... It says that election advertising must identify sponsors. Yet according to

section 237, sponsors need not be identified, and, in fact, if charges and convictions were to take place, it would be against the unincorporated organization, and nothing could be brought to bear on the sponsors or the individuals. One could, I suppose, if one wanted to be funny about it, say that a good example of this is the Nanaimo Commonwealth Holding Society. On the other hand, if I really wanted to be funny, I'd say that NOW Communications should be renamed COW Communications, to get rid of the bull. But let's not digress.

I'm concerned that individuals do make decisions on behalf of the unincorporated organization and that the individuals, when they make a decision under this -- what I see as a provision -- can get off scot-free. I'm wondering if the Attorney General might want to comment on that.

Hon. C. Gabelmann: I don't think the member has it quite right.

Interjection.

Hon. C. Gabelmann: Aren't we all.

Let's take

section 237(3), in which an unincorporated organization.... Let's say the unincorporated organization is a trade union. That organization is deemed to be a person, but the officers of that organization are still potentially gone after -- I'm looking for the right words -- through subsection (2).

A. Warnke: Just a quick point, and then I'm finished. I appreciate the response of the Attorney General, because it clarifies the position, and the example he has chosen is an excellent one. As the Attorney General is aware, with regard to the NCHS, here is an example of a body that was charged and indeed convicted, but did not involve individuals. I

won-

[ Page 16864 ]

der if the Attorney General would care to comment on how that is different from, let's say, the example he used about trade unions.

Hon. C. Gabelmann: We're dealing here with two completely different issues. One is under criminal law, where in fact individuals could have been gone after if there had been substantial likelihood of conviction and public interest, which is the charge approval policy. But criminal law is completely different from provincial statute law, and to try to make a comparison just doesn't work. The member knows that.

J. Dalton: In the light of

section 236, on which I asked about the need to get the approval of the CEO, do I take it that we're proceeding under subsection (2) of 237, and the CEO would have to authorize a prosecution against an officer, director, etc.? Would the same be true under subsection (3) -- that for any unincorporated organization such as a trade union, the CEO would also have to authorize such a prosecution?

Hon. C. Gabelmann: The answer is yes.

Section 237 approved.

section 238.

D. Mitchell: This part of the act dealing with offences is an important one. This

section defines the defence of due diligence. It says that an individual or organization is not guilty of an offence under this act if you can exercise due diligence to prevent the commission of the offence. I wonder if the Attorney General can give an example of how to define due diligence in the context of this act. Could he give some examples of what a defence of due diligence under the Election Act would be?

Hon. C. Gabelmann: I think the member knows the answer to this question and wants to be on the record. I'll give an example -- it's only an example, and it's rough -- about the financial agent who exercises due diligence to adhere to the limits. Say somebody underneath him or her goes off and spends some money in the campaign without the financial agent's knowledge. If the agent has done everything possible to prevent that kind of thing from happening and it's so demonstrated, that's a defence. In fact, it's more than a defence.

D. Mitchell: The reason I ask this question is not that I know the answer -- I'm not a lawyer -- but that I want to have this confirmed. Earlier on in the debate, we talked about some offences and penalties for candidates whose financial agents may not have done their jobs. Now, if the financial agent didn't do his or her job and ended up spending more money than was allowed under the limits set out in this act, the candidate, if elected, may have to end up forfeiting his or her seat. But could the defence of due diligence be used in this context?

If a successful candidate did everything within his or her power to ensure that the act was not circumvented, would that be an acceptable defence under this act, so that the mistakes made by a financial agent wouldn't result in the repercussions that we discussed earlier, where an individual member of this assembly, or even a leader of a political party, might have to forfeit his or her seat because of the mistakes of others?

Hon. C. Gabelmann: I think it would probably help the member to recognize -- and I think he does -- that this is not for administrative penalties. This is only for those offences that end up in court and are tried. In that event, there would be the defence of due diligence.

D. Mitchell: It could be used?

Hon. C. Gabelmann: It could be used, yes -- and it could be used by an individual or an organization; it's wide-open.

D. Mitchell: I appreciate the Attorney General's answer. Just for clarification, since it relates to an earlier portion of the debate that we had on this act: if a political party ends up spending more than is allowed to under this act and it is determined after the report of the chief electoral officer is submitted that that is the case, does that mean that that party may have to be deregistered, which is prescribed under this act? If this case goes to court and is appealed to the Supreme Court of British Columbia, and if the defence of due diligence is used....

If that political party could prove that it did everything possible to prevent itself from spending more than the limit but ended up going over anyway, would the political party be able to avoid the penalty prescribed under the act, which is deregistration?

[7:45]

Hon. C. Gabelmann: The member talks about deregistering; that, of course, would be an administrative consequence, not a consequence of an offence.

Interjection.

Hon. C. Gabelmann: It could be appealed to the courts. Due diligence doesn't apply on the appeal; it only applies on those offence questions. If it's an administrative penalty, then you have an appeal right, but due diligence doesn't apply then. A good-faith test applies, not a due diligence test. If this is a sticky point, we can go back and do it step by step, but I'm not sure it's that kind of issue.

G. Wilson: The reason we are pressing this point is that if a person or organization is charged with an offence under this act, it would seem that one of their primary defences is that they attempted due diligence in the commitment of their responsibilities and duties.

If you can argue that you conducted yourself in a manner that demonstrated due diligence to a program of expenditure, a program of disclosure and a program of registration -- all the things which the act requires -- but that somebody under your charge committed expenses, failed to register, or whatever it is that they did, the fact is that, administratively, you still have an offence under this act, and you may well be charged as a result of the consequence of that act.

What we're asking is: how will the courts be able to determine due diligence? My guess is that there are only three people who are likely to be affected by this. A financial agent would be one person I could see who would be up in court defending himself or herself, the other would be the candidate, and my guess is that the third individual would be the constituency president and/or designate. Because if the organization of the constituency association.... Those are the

[ Page 16865 ]

three primary areas where you're likely to get into a problem, unless we're talking about an offence of the political party. What this clause says is that any individual or organization is not guilty of an offence under this act if you exercise and can prove due diligence. How do you do that? That could either be a necessary escape or one huge hole through which you could drive a massive truck to get yourself out of any potential problem by simply saying: "I did what I was supposed to do. It's not my fault."

Hon. C. Gabelmann: The term "due diligence" comes from a Supreme Court of Canada decision. It means, in effect, taking all reasonable care. An individual who has responsibility hires somebody to take some responsibility under their care. They give them clear instructions about what they're to do, and they supervise and monitor them and believe that that person has exercised that responsibility properly under the law.

If it turns out later that, in fact, that person has been acting in a way that the person who has care of the issue -- the financial agent, probably -- hasn't known about, and this person has been deceiving the financial agent, there is a defence of due diligence on the part of the agent.

D. Mitchell: Just so I can understand this, I would like to use an example such as the recent Abbotsford by-election. The successful candidate, who's now the member for Abbotsford in this assembly, said, when he discovered how much money was spent on the campaign to get him elected to this House, that he was surprised, he was shocked, it was excessive. His constituency only spent $32,000, but the Vancouver machine imported hired helpers and they ended up spending four or five times that.

Under this act, if that individual was able to say, "Hey, I didn't know the Vancouver political bosses were pouring money in; I did everything I could in my constituency, and I thought I won the election by knocking on doors and doing what candidates do; I didn't know that a massive machine was being hired I didn't know this was happening," would he be able to use the defence of due diligence to prevent any kind of prosecution under this act?

If that's the case, if the member for Abbotsford could use such a defence to continue membership in this House after that by-election, that defence of due diligence makes this act and the requirements for spending limits useless.

Hon. C. Gabelmann: The difficulty we're having on this

section is that members are confusing and mixing up the administrative penalties administered by the CEO and the offence section. They are merging them and going back and forth. This

section refers to a defence, that's all -- just a defence. It doesn't mean that it's going to succeed, but it is a defence if due diligence has been exercised in the offence section. This is not an administrative penalty which results in the member forfeiting his seat and then there's an appeal. That's another process altogether.

Section 238 approved.

section 239.

D. Mitchell: I'd like to move the amendment standing in my name on the order paper for

section 239, which deals with vote-buying.

[SECTION 239, by adding the following words:

(8) Subsections (1) to (7) apply also to the process involved and the individuals involved in a nomination process within a political party and to individuals seeking elected office as Independents during the time between public declaration for office and the date of the election writ.]

On the amendment

D. Mitchell:

Section 239 relates to vote-buying, a very serious offence, I think anyone would agree. One of the main virtues of this act -- and there are some -- is that this Election Act seeks not only to regulate contests between parties during general election periods or by-elections but also, in some specific areas, to regulate contests within parties, such as leadership contests or nomination battles.

But when we get to some of the offence sections, it's not clear whether some of these offences -- particular in the next few sections -- only deal with general election contests between parties or whether they relate to intraparty contests as well. So the amendment I'm proposing to

section 239 makes it clear that all of the subsections of this

section apply also to the process and the individuals involved in a nomination process within a political party, and to individuals seeking elected office as independents, as well, during the time between the public declaration for office and the date of the election writ.

So what the amendment tries to ensure is that these offences under

part 12 of the act and the crucial offence of vote-buying would relate to a contest within a party. Where an individual was seeking the leadership of a political party or a nomination within a political party, the offence of vote-buying should be just as serious and treated just as seriously -- perhaps more seriously, where it's a leadership contest for someone who would hope to become Premier of the province. If vote-buying could actually be proven under the terms of this act, it would be a very serious matter. Therefore I think it should apply to contests within parties as well.

It should also apply to independent candidates. For instance, if I seek a nomination to run as an independent at the time of the next election, the offence should apply to someone such as myself as well; I think it's only fair. The amendment simply seeks to make it comprehensive, so that these offences also apply to those crucial contests outside of the normal ambit of politics where parties are facing each other in combat during election periods or by-elections.

Hon. C. Gabelmann: We are not, in this bill, trying to regulate internal party affairs. We're talking about the exception of the leadership convention, because the leadership contest or convention can lead to someone becoming the Premier or the Leader of the Opposition. It's obviously a different situation. But for the most part -- almost exclusively -- we are saying that parties should regulate themselves internally. If there are Criminal Code issues that result from the way in which parties conduct themselves, that's another matter. But we are not trying to regulate them.

It's an endless and, I think, inappropriate quest for us to try to regulate party activities. So we are not doing that. The member may disagree; that's fine.

Hon. Chair, I'd like to digress for a moment and ask leave to make an introduction.

Leave granted.

[ Page 16866 ]

Hon. C. Gabelmann: I'd like to introduce Merle Jackson, who works for Elections B.C. and is here tonight in the gallery to keep an eye on all of you guys. Would the House make her welcome.

D. Mitchell: While we're on this amendment, I want to address this important issue. The Attorney General says he's not interested in heading down the road of regulating internal party affairs, but in fact that's what this bill does in some very crucial areas. When it comes to disclosure, a statute in the province of British Columbia is now saying, for the first time, that when it comes to, for example, leadership contests, the chief electoral officer -- a new independent officer of the Legislative Assembly -- is going to have a mandate to ensure that full disclosure takes place. Now, that's an important step. The question is: where do you stop?

I would agree with the Attorney General that there is a question of judgment. How far do you go to try to regulate the internal affairs of a party? But in British Columbia, as in most jurisdictions, political parties -- which can be defined as glorified special interest groups -- are important players in the political process. Serious political parties seek to form the government of the day. There are some contests that perhaps deserve to be monitored; some deserve to be regulated. When we talk about something as crucial as

part 12 of this act, the "Offences" section, I would argue that it's not drawing a long bow to suggest that the offences that apply to something such as vote-buying should be monitored and should apply not only to parties who are competing with each other in the electoral contest but to internal battles.

My amendment does not deal with leadership contestants; I don't want the Attorney General to misrepresent this. Just so it's clear, what I'm saying in the amendment to

section 239 is that this

section should apply "to the process involved and the individuals involved in the nomination process within a political party and to individuals seeking elected office as independents," as well. That's all I am saying, so that if anything as serious as a charge of vote-buying should take place, the chief electoral officer should have the mandate under this act to examine such an offence, as serious as it is, especially within a political party seeking to form the government of the province.

[8:00]

That's a pretty serious charge, and I don't think it's moving too far in the area of regulation of political parties. Some might argue that we should go much further, but I resist that as well. Bill 28 takes a tentative first step in this direction when it comes to disclosure. I don't think it's drawing a long bow at all to suggest that there should be some serious charges for a serious act such as vote-buying. That's why I have moved the amendment.

Hon. C. Gabelmann: I recommend that we vote against the amendment because this bill is making some tentative first steps, and that's probably all British Columbia can stomach at this point.

J. Dalton: I agree with the Attorney General. First, his comments that this

section doesn't apply to the pre-writ period are quite clear. All the

definitions of voting and elections apply only to the writ period, so I would think that this amendment is out of order, among other things. Second, I'm curious as to how a nomination for an independent could involve vote-buying. That seems very strange to me.

Amendment negatived.

J. Dalton: On vote-buying, I have in my hand

section 151 of the Local Elections Reform Act of 1993. All members will remember this fondly.

An Hon. Member: Who passed that?

J. Dalton: I wonder who passed that. The wording of

section 151 of the Local Elections Reform Act is the same wording we are dealing with under

section 239 of the Election Act, verbatim. The Attorney General this morning didn't want to discuss my parallel to -- let's go on and look at them here -- sections 87 and 89 of the Local Elections Reform Act, which of course deal with restrictions on making campaign contributions and with valuation of campaign contributions and election expenses. I'm sure the Attorney General will remember these arguments.

I am curious why the Attorney General was not prepared to use the same wording from a government bill of two years ago that was directly on point dealing with paid labour not being identified as a political contribution. How come we can use it for vote-buying here and not use it to deal with a very important issue: why a person on leave but still drawing salary is not a political contribution? What's different?

[A. Hagen in the chair.]

Hon. C. Gabelmann: Well, I guess the only comment I can make is that consistency is the hobgoblin of little minds.

Section 239 approved.

section 240.

D. Mitchell: I'd like to move the amendments standing on the order paper in my name.

[SECTION 240 (1) (c), be amended by deleting the "." after "(

a) or (b)" and substituting ";" and by adding:

(

d) to persuade or compel an individual to refrain from pursuing their democratic right to seek public office.

SECTION 240, by adding the following words:

(5) Subsections (1) to (4) apply also to the process involved and the individuals involved in a nomination process within a political party and to individuals seeking elected office as Independents during the time between public declaration for office and the date of the election writ.]

On the amendments.

D. Mitchell: This

section deals with intimidation, which is a serious offence, I think any member of this committee would agree. On the previous section, the member for West Vancouver-Capilano wondered how the serious offence of vote-buying could apply to an independent. Well, when you take a look at the way these sections are drafted under offences, we can see that vote-buying or intimidation could happen as an offence against any individual who seeks a nomination to become a Member of the Legislative Assembly. In fact, we might deal with this in more detail under this

[ Page 16867 ]

intimidation section. The reason the intimidation offence should apply not only during an election campaign period to parties contesting elections but also to contests within a political party is because intimidation obviously can occur in that context, as well.

I can give only one example that comes to mind. It's the most glaring example and in my memory one of the most repugnant ones that has been brought to my attention. Apparently a party in this House, the Liberal Party of British Columbia, has instituted a practice whereby an individual who seeks a nomination for that party and is unsuccessful....

Prior to entering that contest, when the nomination papers are filed, the individual is requested to sign a waiver, a form stating that if they lose the nomination, they will not seek a nomination as an independent or as a candidate for any other political party in the upcoming election. That's a requirement before one can become a candidate for office in that political party. That's just one example that comes to mind; there could be others. But I think that's an example of intimidation that is taking place today in British Columbia. I'm not sure if it's legal.

I'm not sure if a requirement to sign such a waiver would be constitutional; in fact, it may be a violation of Charter rights. Having said that, it's a practice that has been instituted by the current leader of the Liberal Party in our province.

I think that kind of intimidation and any other forms of intimidation that take place not only among parties but within parties should be prohibited in the province. That's why I moved the amendments standing in my name on the order paper to

section 240 to prevent those kinds of abuses from taking place. I think it would be a relatively easy task for the chief electoral officer of our province to ensure that this kind of bullying and intimidation should be challenged and eliminated in the province. The CEO should be charged with the task of making sure that those kinds of internal party battles are clean so that we can restore integrity to the political process not only in the contest between parties but in contests within parties as well. That's why I've moved the amendment with respect to intimidation as an offence.

G. Farrell-Collins: I've been listening to this debate and occasionally participating in it, and I found it intriguing and interesting to note that the official opposition seems to have come under attack by the independents for bringing in this bill. For some reason we seem to be the target of the wrath and the dejected, disappointed nature of certain independent members in the House. I just want to clarify some of the interesting statements that have been put forward with regard to this, particularly by the member for West Vancouver-Garibaldi.

I suppose if I wanted I could ask him to withdraw his comments, but that would probably be a little too petty. Because I wouldn't want to fall into his nature, I will clarify for him the intent behind those provisions to which he alludes.

The member calls it intimidation; I call it commitment to a party. I call it commitment to work as a team, something the member wouldn't understand -- the whole concept of teamwork and staying with the party. It also has something to do with sore losers: people who can't accept the verdict of a party they join, the verdict of a party that has members who can vote their will in a secret ballot; people who can't accept the verdict of their peers but are worried that their own egos may be damaged; and that the knowledge, understanding and determination of the members of the party that that member chooses to join....

Somehow those people aren't as smart as they are, and they are far better than the party they have joined.

I think that provision is an attempt to get a commitment from somebody to carry the banner, and if they wish to carry the banner and ask for support from members of the party, that they in turn offer their support to the party should they fail to receive the unanimous consent of everyone. Nobody ever expects it to be legally enforceable. It's a request for a commitment, something that I know that member and a couple of other independents find hard to understand: that a party and the importance of the team would actually be more important than their own personal egos and their own personal worth.

I understand why the member has a problem with that and would want to move an amendment that would allow him to hop from party to party seeking a nomination, so that if he doesn't get one into one party and the people reject him, he can then find another party to run for, and if they reject him, then he can be an independent and his independent group can reject him, and then he can go and find another party to run for -- another independent group. So I understand why that member would have difficulty with it.

I guess it's just an indication that he feels he is far more important than the party or the organization. I suppose that's why that member will never be a member of a governing party, because you have to get more than one person elected to govern in this province.

Hon. C. Gabelmann: I feel like a teacher at a kindergarten recess. I'm just going to leave this and not support the amendment, because if parties want to behave in this fashion, they can do so. It's not going to have any effect -- witness the member for Chilliwack.

Amendments negatived on division.

D. Mitchell: This

section deals with corrupt voting, which is a serious offence, as serious as vote-buying, as serious as intimidation, and as serious when it takes place within a party as when it takes place at the polls during a general election contest. Again, I move an amendment seeking to ensure that corrupt voting practices will not be allowed within a party when it comes to a nomination process, a leadership race, or even if it applies to someone who's not a member of a party -- an independent candidate. No corrupt voting should be allowed. I think it's crucial that the "Offences"

section of this act should apply to internal party contests as well as to corrupt voting that takes place in a general election or in a by-election campaign.

The Chair: Hon. member, excuse me if I interrupt you for just a moment, but I think that you're now dealing with your amendment for

section 241.

D. Mitchell: That's right.

The Chair: Let me just clarify, then, and again look at

section 240. Shall

section 240 pass?

Section 240 approved.

section 241.

[ Page 16868 ]

The Chair: Hon. member, on

section 241, your amendment.

D. Mitchell: I seek to move the amendment to

section 241, standing in my name on the order paper, dealing with corrupt voting practices.

[SECTION 241, by adding the following words:

(3) Subsections (1) and (2) apply also to the process involved and the individuals involved in a nomination process within a political party and to individuals seeking elected office as Independents during the time between public declaration for office and the date of the election writ.]

On the amendment.

D. Mitchell: There could be many examples of what would constitute corrupt voting. I'm not sure -- the Attorney General may want to indicate whether we've ever had any charges in the province of British Columbia, in our jurisdiction, for this particular offence. But there are examples in other jurisdictions that I am aware of where corrupt voting may have taken place. The opportunity for corrupt voting could certainly take place within a political party, as well as outside a party.

Members of the Liberal caucus will know that when we look back at the leadership race that elected their current leader, there were charges, and I don't think they were proven. There were charges and allegations, nevertheless, that I think should have been resolved. Should the chief electoral officer of the province be allowed to investigate those kinds of charges?

I'm not sure how you could do it. This might be difficult administratively, especially in our modern age when political parties conduct leadership votes by televote, for instance. Where technology is used, it might be difficult to confirm and validate whether corrupt voting has actually taken place. It might be very difficult to prove, or it might be impossible. The point I'm trying to make is that the opportunity for corrupt voting exists within political parties every bit as much as it does in the contest between parties during elections.

What I'm suggesting with this amendment to

section 241 is that charges of a serious offence, such as corrupt voting -- where an individual votes in an election when not entitled to do so; when an individual contravenes any of the other principles in this bill; when an individual obtains a ballot in the name of another individual, whether the name is of a living or dead individual or a fictitious individual -- are sometimes made in heated nomination battles in parties where bloc voting takes place, where voting might take place by televote or using new technologies where it is charged that PIN numbers are used and numbers are phoned in from lawyers' offices by the hundreds, if not by the thousands.

Whether that kind of corrupt voting practice could or has in fact taken place in British Columbia....

[8:15]

So this is a simple amendment. I know the hon. Attorney General is reluctant to get involved in the regulation of the internal affairs of political parties. I say that if a political party seeks to govern in the province, then they should be subject to the same kind of offences that face political parties who are fighting each other. They should be subject to the same kind of offences, whether it be a nomination battle within the party or the contest for a leadership within a party.

Even outside parties altogether, if an independent is seeking a nomination to run for office, we should ensure that votes should be counted only when they are entitled to be counted under the terms of the Election Act. That is what this amendment tries to achieve. I think it is an important offence and it should apply in the context I've indicated.

G. Farrell-Collins: At the risk of becoming one of those participants at the kindergarten recess, I want to comment briefly that.... Having listened to this for some period of time over the last few days, I would ask the member for West Vancouver-Garibaldi either to stop the innuendo, to put up or shut up, or to get off it and start talking about the Election Act. If he has claims to make, make them. Make them outside the House. Otherwise, leave it alone.

J. Tyabji: I find the attitude odd that is being taken to these amendments. I have been monitoring this debate for most of the afternoon, because I know we don't want to prolong anything. I have to tell the Attorney General that although I usually appreciate his responses, what brought me into the House was his response when the member for Fort Langley-Aldergrove got up and continued to refer to us as independents when we are not and made the statements he made.

The Attorney General stood up and said: "This is like a kindergarten." What I found interesting was that the amendments we are making go to the heart of what we were talking about when we talked about the construction of our democratic machinery.

The reason those amendments were brought up was because some members who happen to be sitting here, two of whom are in a new party and two of whom are independents, happen to have experienced problems with the democratic machinery as it was constructed before. Who better to offer some opinions than the people who would have some experience? I think the member for West Vancouver-Garibaldi made a very good statement as to what the need was for that, both in this amendment and the previous one. It's unfortunate that the Liberals have a very thin skin and that they take it very personally.

They stand up and make personal attacks. The member for Fort Langley-Aldergrove said to say it outside the House. I have. I've put it in a book, and I published it. Anybody can....

Interjection.

J. Tyabji: The member would have to read it.

Having said that, this amendment is important because what we're trying to do is construct a machine to protect the best interests of the people of British Columbia. Those interests sometimes go beyond what we would normally construct. Every step along the way, whether it's the four-week writ period, the stipulations about the social sciences statistics in that period, the voting process or intimidation, we've said to the Attorney General that we believe we can construct it a little better by enlarging the scope.

That way we won't have the kinds of problems that we have experienced in British Columbia, which are not over yet. We will see them in litigative and inquiry processes for years over the fallout in the Liberal Party. That will happen, and that's another process. I don't really care about what the fallout is for that party, but I do care about the people of British Columbia being saved unharmed from those kinds of shenanigans, which is what they were. If we construct a process that leaves us open to abuse, abuse will occur. It has been open to abuse in the past.

[ Page 16869 ]

That's what this amendment is about. It's about making sure that we have a little protection for those people who walk in thinking that democracy is all about getting involved and having a very nice place to visit. There are ways of constructing things a little better. I know the Attorney General isn't going to pass it, but I hope it will be recognized that it was put forward in a constructive manner. Even if the Liberals don't recognize that, I would hope the Attorney General will.

G. Wilson: I supported all three of those amendments, and I support the amendment that is before us now under

section 241. The only comment that needs to be made is that in seeking to make these amendments, what we're trying to do, in a legitimate way, is to seek to make the process that brings politicians into the business of politics more fair, more honest and more accountable. If, within the process of becoming a nominated candidate, leader or participant in a provincial election, there are opportunities for intimidation, corrupt voting and abuse, there is little to prevent corrupt individuals who seek power from being successful at the polls and bringing that very approach of corrupt regulation to government.

As a result, the kind of people who are attracted to government and who are successful at forming government tend to be the very people that the people of British Columbia would prefer not to have governing them.

Unfortunately, if there's no process that analyzes or scrutinizes these corrupt processes, or that recognizes this corruption when it occurs and deals with it at that level, then you can expect to have consistent numbers in governments regardless of their political stripe. The individuals who will succeed will be the very individuals that the people of British Columbia would rather not have governing them. That's why good people won't get into politics. They see what goes on at that level firsthand, and they recognize that good people will not succeed when corruption is allowed to prevail.

D. Mitchell: I know that the Attorney General has indicated that he is not going to support the third and final amendment that I wish to propose to the "Offences" section. I will very briefly try one last argument with the Attorney General. I apologize to the members of the Liberal caucus -- and in particular to the member for Fort Langley-Aldergrove, who takes offence at this -- but when I was referring to these kinds of offences, which I think are serious, I tried to use some examples. In the actual amendments on the order paper, I don't use any examples.

I tried to present those examples as objectively as I could. When I tried to think of some examples, the only ones that were fresh in my mind were ones that have received some attention in the news media in British Columbia because of recent contests. I can't think of any that relate to any other parties represented in this House, whether it be the NDP, the Reform Party, the PDA or the Social Credit Party. These were the freshest and most current examples of these kinds of offences within a party....

Interjection.

D. Mitchell: Maybe they don't have losers; that could be.

The Chair: Order, hon. members. The member for West Vancouver-Garibaldi has the floor, and I hope he will conclude his arguments quickly.

D. Mitchell: The reason I'm proposing that the scope of

part 12, and in particular the final amendment under

section 241, "Corrupt Voting...." The reason I believe that it should apply is that there may be individuals within parties that are outside the purview of Members of the Legislative Assembly, outside of the political caucus, outside of the party caucus -- party organizers who.... We've talked a little bit about the differences under the Election Act, and we've talked about the need for due diligence, but there may be opportunities for individuals to commit offences well beyond the purview of any Members of the Legislative Assembly. There might be organizers that might be part of a party machine. Who knows? Those individuals under party machines may change from time to time.

The Chair: Hon. member, I'm going to call you to order. We've had considerable debate on this matter, and I really would encourage you to conclude your comments. I'm having a hard time considering that this amendment is in order, but I've allowed considerable latitude because we have been discussing this matter. I really would encourage you to conclude your comments as quickly as you can.

D. Mitchell: Hon. Chair, this amendment is the same as the one proposed for the two previous sections. Neither of those were ruled out of order. I'm sure this amendment is in order; it wouldn't be on the order paper otherwise.

I will conclude my comments by saying that I think these kinds of offences are serious. I think that if we're going to restore the integrity in the political process, we have to ensure that these kinds of offences can be administered under this act by the CEO -- not only for contests between parties but for contests within parties as well. It's that serious. When we pass a new Election Act.... We don't do that every day. You'll recognize that this is the first time in generations that a new Election Act has come before the House. It's no surprise that these issues should be.... In fact, I think there's an obligation to raise these kinds of issue on the rare occasion when

an act like this comes before the assembly.

That's why I asked the hon. Attorney General to take a second look, to reconsider the notion that this is serious. I can just tell you that I have here in front of me proof -- I'm willing to table this in the assembly later, if necessary; I know I can't do it in committee -- from 14 different individuals who have written to me saying that there has been corruption in Liberal nomination processes in British Columbia. I would be willing to table this in the House as an example of what I'm trying to get at.

Amendment negatived on division.

Sections 241 to 245 inclusive approved.

section 246.

Hon. C. Gabelmann: I move the amendment to

section 246 standing in my name on the order paper.

[SECTION 246, in the proposed

section 246 (1) (a), by deleting the second "without authority".]

On the amendment.

D. Mitchell: I have just a brief question. Why are we deleting the two words "without authority" from

section 246? I'm not sure I understand that.

[ Page 16870 ]

Hon. C. Gabelmann: Because at the top of page 174 in subsection (1)(a), the term "without authority" is used twice, when it only needs to be used once.

Amendment approved.

Section 246 as amended approved.

Section 247 approved.

section 248.

Hon. C. Gabelmann: I move the amendment standing in my name on the order paper.

[SECTION 248, in the proposed

section 248 (1), by adding the following paragraphs:

(

g) contravenes

section 234.1 respecting an election advertising limit;

(

h) contravenes

section 234.4 respecting the requirement to be registered as a sponsor;

(

i) fails to record information as required by

section 234.6 (2).]

Amendment approved.

Sections 248 as amended approved.

Sections 249 to 255 inclusive approved.

G. Farrell-Collins: With all due respect, I know we're trying to move through this reasonably expeditiously, but it takes time even to turn the page and for members to know whether they have notes and wish to speak to that section. I would suggest that we move just half a pace slower than we just did.

The Chair: Thank you, hon. member. I shall try to make sure that all members have an opportunity to turn the pages. We shall now move to

section 256, where the member for West Vancouver-Capilano has some comments.

section 256.

J. Dalton: I have a question under subsection (2). Do I interpret this as meaning that if the election day is underway...? It is possible that the proceedings during voting day could be adjourned? If so, under what circumstances might that very unusual event happen? Could that happen in only one riding out of 75, for example?

Hon. C. Gabelmann: In very limited circumstances. If the health or safety of individuals is at risk, then yes, the proceedings can be adjourned during the course of the day.

J. Dalton: Does the Attorney General know of any examples in any Canadian or Commonwealth jurisdiction where such a thing has ever happened? Maybe in some Third World countries, but can the Attorney General suggest where, in one riding only out of 75 or 297 or whatever, an election has been postponed?

Hon. C. Gabelmann: The most recent examples are flooding in Manitoba during their provincial election, in one polling station, and fires in northern Saskatchewan during the last election, in one polling division as well.

J. Dalton: That's fine. I'm glad we have recent events, but what did they do in that case? Did they extend the voting for the rest of...? The polls close at 8 o'clock under our act. Were the polls extended to 10 o'clock, or to 4 o'clock the next morning? How did they work that out?

Hon. C. Gabelmann: They weren't as farsighted as we are; they didn't have the provisions. They managed to do something, probably by some general consensus outside the law. We now have a law in place to allow us to do the appropriate thing.

Section 256 approved.

section 257.

J. Dalton: This brings us back to one of my favourite expressions in this act, election proceedings, which, as we all know, are not defined. However, I think we can understand from looking at subsection (2), for example, in this

section that, as the Attorney General and others, I believe, commented, the election proceeding would be the writ period to voting day. Or maybe it extends beyond voting day to judicial recounts -- I don't know.

[8:30]

First, let me ask this: could election proceedings precede the writ day? In other words, I'm thinking of a CEO setting up a local election office. Would that be caught by the election proceedings?

Hon. C. Gabelmann: It's writ to writ.

J. Dalton: I take that to mean that if anything happens prior to the writ, even though an election official may be working, he has no responsibility under this act, and he has no responsibility for anything that happens after the writ to writ period, but the election official better be very careful what he does writ to writ. Is that true?

Hon. C. Gabelmann: I guess I'd be concerned that the member would only employ males.

Interjection.

Hon. C. Gabelmann: No. We intend to hire women to do some of this work, too. The member may not treat the issue seriously, but I do.

The fact is that....

Interjections.

The Chair: Order, members. Minister, please continue.

Hon. C. Gabelmann: The fact is that we're talking here about keeping peace and order at election proceedings. That occurs from the issuance of the writ until the writ is returned, which, for practical purposes, is in fact the time from the issuance of the writ until the count and perhaps a subsequent recount.

Sections 257 to 259 inclusive approved.

[ Page 16871 ]

section 260.

Hon. C. Gabelmann: I move the amendment standing in my name on the order paper.

[SECTION 260, in the proposed

section 260,

(

a) in subsection (1) (

a) by deleting "and leadership contestants" and substituting ", leadership contestants and registered sponsors", and

(

b) in subsection (2) by deleting "or" at the end of paragraph (b), by adding ", or" at the end of paragraph (

c) and by adding the following paragraph:

(

d) an individual or organization that was required to file an election advertising disclosure report at any time during the past 5 years.]

On the amendment.

D. Mitchell: This

section deals with investigations and audits by the chief electoral officer under the act. I know the Attorney General claims that he's hesitant to get involved in the internal affairs of parties, but if we take a look at what the chief electoral officer is allowed to do under this act in terms of investigations and audits, it relates to political parties, registered constituency associations, candidates and leadership contestants. With the amendment, we're now saying leadership contestants as well as registered sponsors.

Clearly, we're getting involved in the internal affairs of a political party with this amendment. The Attorney General is much too modest when he says that this act doesn't deal with the internal affairs of parties. When we talk about the investigative and auditing powers of the CEO under the act, we're expanding these somewhat with this amendment. I have more to say about the

section itself, but why are we adding registered sponsors in particular? Why is that particular amendment being made here?

Hon. C. Gabelmann: I think the member knows that it's because we have a new way of dealing with third-party advertising.

D. Mitchell: I appreciate the answer. I'll wait until we pass the amendment before I ask my next question.

Amendment approved.

section 260 as amended.

D. Mitchell: We're talking in this amended

section about some fairly important powers of the CEO under the act. We talked before about how the CEO has some powers of his or her own to conduct investigations, inquiries and audits. These investigations or audits are not necessarily triggered by complaints. Under

section 260 of the act, the chief electoral officer must conduct periodic investigations, but may conduct audits of the accounts of individuals and organizations and may conduct investigations of any matter that might constitute a contravention. In some categories he or she must conduct investigations, and in other categories he or she may conduct investigations. Why the double standard? Can the Attorney General explain why the CEO isn't required to do so in all cases? Why isn't discretion allowed in all cases? In some cases, he or she must; in others, he or she may. Why the difference?

Hon. C. Gabelmann: The basic answer is that investigations are not on the same scale as audits. The investigation must be conducted in order for the CEO to determine whether there are concerns. If he or she determines that there are concerns, then he or she may conduct audits. Obviously an audit is a more expensive, exhaustive and significant process than an investigation.

D. Mitchell: I thank the Attorney General for that explanation. Under 260(1)(a), for instance, it states that the CEO "must conduct periodic investigations of the financial affairs of..." and then it lists a number of categories. As I pointed out earlier, we're not talking only about parties but also about leadership contestants, for instance. Can the Attorney General explain when the CEO must conduct a periodic investigation of a leadership contestant? In other words, if we say "periodic," does that mean that the CEO...? Doesn't "periodic" apply to leadership contestants? Am I reading too much into this?

Would it be the case that the CEO must conduct investigations into the financial affairs of registered leadership contestants and that "periodic" would not apply here?

Hon. C. Gabelmann: There must be a periodic investigation. If leadership conventions take place every year, I suspect that everyone wouldn't necessarily be investigated. The period could be every year. If the leadership conventions are ten years apart, the CEO is going to conduct himself or herself accordingly and do periodic investigations.

D. Mitchell: Let me use an example. Recently in the province two different parties had leadership races. One was the Liberal Party of British Columbia, and the other was the Reform Party of British Columbia. If this bill was passed into

an act, would both of those parties' leadership contestants be automatically audited by the chief electoral officer? Or could the chief electoral officer use his or her discretion to decide which of the two would be audited?

I'm wondering where discretion comes in with the use of the word "periodic." Does that mean some leadership contestants would be audited and some wouldn't? You know, leadership races don't happen very often in political parties; they happen once every so many years. It's only in unusual circumstances that they take place more frequently. Would the Attorney General offer any instructions to the new CEO under this act on how he or she should conduct himself or herself under this section?

Hon. C. Gabelmann: No, I won't issue any instructions, obviously. If that motion passes, the member is likely to be on the committee that determines who the CEO is, and I'm sure the member will make absolutely certain that the CEO has the kind of ability that will ensure the appropriate discretion is conducted.

G. Wilson: One of the effects of this

section as amended now is that it limits the chief electoral officer's inspection of copies of records to only those who would have been obliged by this act to have actually made records. The way that it was originally drafted was that there may be an audit or an inspection of records of any individual who is or was a candidate, or any individual who is or was a leadership contestant at any time in the past five years. That's the way it was originally. The effect of the

section as amended is that those individuals are only going to be subject to review if in fact they were required to file an election advertising disclosure report at any time in the past five years.

[ Page 16872 ]

Under this

section as amended, will these records, however they are constituted, now be available upon request to the chief electoral officer at the discretion of the chief electoral officer after a nomination process or a candidate election or a leadership election? In other words, do these records have to be made available now? I'm not just talking about the aggregate figures that have to be filed with respect to the act but about the support documentation. As a result of this, all political parties are going to have to maintain those support documents and have them available upon request to the CEO. At any given time, the CEO may decide to request them within a five-year period. Is that right?

Hon. C. Gabelmann: When we did

section 177(2)(

c) and (d), we passed a provision that requires the records be kept for five years.

G. Wilson: I know, and at that time I was referred to talk about it in

section 260, which is what I'm now doing. Would the Attorney General just answer my question?

Hon. C. Gabelmann: I guess my problem is that I'm not quite sure what the member's question is. The people have to keep their records for five years, and they're available to be inspected. So what's the question?

G. Wilson: The question specifically is on the latitude that the chief electoral officer has with respect to access and review of documents. That's what I'm asking. I'm not just talking about aggregate figures or numbers that are filed. I'm talking about support documents. I'm talking about the opportunity for the chief electoral officer to be able to go in and access the files of a political party for a five-year period.

My understanding is that this act now provides free access for the chief electoral officer to go in and inspect files of a political party within a five-year period for the purposes of determining matters related to election expenses, fundraising and other internal expenditures that the political party may have had around an election. Is that right?

Hon. C. Gabelmann: The answer is yes. The CEO can go back and look at the records, not the aggregate, the

summary or the ledger.

G. Wilson: Throughout this debate we've said that we're only concerned with the writ period and not with matters that people are engaged in before or after that period. What latitude, therefore, does the chief electoral officer have with respect to the demand for information from a political party? Do they have complete latitude? Can they basically go in and conduct a forensic audit for purposes that they deem necessary? Do they have that kind of freedom?

Hon. C. Gabelmann: If the CEO chooses, yes.

K. Jones: I'd like to ask the minister about the intention of

section 260(2)(a),(

b) and (c). In reference to "the past five years," is it intended to be the preceding five years? Or is it the past five years prior to the enactment of the legislation? Whether it's intended to be something other than what it says -- "the past five years" -- it actually means last year and the four years prior to that. If this act is intended to be utilized next year, it would not allow the proceedings to occur during this next year, when it will be a past first year.

Hon. C. Gabelmann: I'm going to get the member to write my will so that it will be clear and focused.

The five years begins June 1, 1995. On June 1, 2000, the five years will apply. On June 1, 1998, it will be three years. So it goes back five years, but it doesn't go back prior to June 1, 1995.

[8:45]

K. Jones: I'd like to get further clarification from the minister. The past five years, as based on this legislation, starts with the enactment of this legislation. That's all you can refer to as the past five years, because there's nothing to bring it forward. If, at some point in the process, you want to say "the preceding five years" or something like that.... The past refers to from the present time of the legislation....

Hon. C. Gabelmann: If an organization registers, you can go back, as far as five years, to the registration date. Therefore, if you can't register before the enactment that's allowed for in this bill, the five years stops at that date. Whether that date is actually September, for some provisions, or June, for other purposes, the middle of 1995 is as far back as you can go.

I will just say to the member, kindly, that one cannot read one

section of a bill without reading other sections along with it in order to get the full flavour. This is not vanilla ice cream; this is Neapolitan.

D. Mitchell: Maybe it's spumoni; I'm not sure.

I'm with the member for Surrey-Cloverdale on this one; I wish this were actually retroactive. Then he and I could both get to the heart of some recent events in B.C. politics, including how his leader was elected.

Having said that, this

section gives quite significant powers to the chief electoral officer and also some responsibilities, which are probably going to cost some money. I wonder if it might be appropriate under this

section now, rather than later on, to deal with this issue. The office of the chief electoral officer in British Columbia today costs taxpayers a certain amount of money. Under this act, with the expanded responsibilities and duties, including those of investigation and audits under this section, could the Attorney General tell us if he or his officials have done any estimates whatsoever on what the incremental cost to the taxpayers is going to be on an annualized basis for running the new independent office of the chief electoral officer? I imagine there would be an increase.

I don't know how much that increase would be, but it would be interesting to know, and I'm sure the Attorney General's officials will have done some estimates as to what the cost would be.

The Chair: I would like to remind the members of relevance to the

section that we are discussing.

Hon. C. Gabelmann: It will cost a little more than the elections branch costs now, but not a significant amount. It depends upon Treasury Board submissions and on what Treasury Board is finally going to approve. On the order of magnitude, did somebody not say the other day in the House, sitting in a seat generally in that direction, that the price of democracy was priceless? Oh, it was one seat over.

On the order of magnitude, I don't know. It's going to be marginal and not a significant increase.

[ Page 16873 ]

J. Weisgerber: I'd like to ask the Attorney General if there is a reference to penalties in this section. Have I missed it somewhere? I raise the issue because my limited experience over the years, particularly with constituency associations, is that you have a group of people who are all volunteers. My experience with political, community and other organizations is that from time to time, with no intent of doing anything wrong, records disappear. People move, or people take the records with them.

Three or four years after an election, I have found myself going back and asking if we could get the poll results we did in 1986 or 1991, and everybody looks around at everybody else and finally decides that nobody knows where they are. I expect that this might not be an isolated incident. I'm concerned about how one goes about enforcing this. Are there penalties? What kinds of processes are there in place?

I don't have a big problem with the party office or with the registered headquarters of the party. I think it's reasonable to expect that they would look after records in a businesslike way. Unfortunately, the 75 constituencies with three or four parties in each are going to have a number of circumstances like the one I described.

Hon. C. Gabelmann: Anybody who has had anything to do with a political party over the years has experienced that kind of situation where the records went home with the campaign treasurer and then you never, ever find them again. I know the experience. A candidate who couldn't file as a result of that kind of experience can seek relief from the court and explain to the court what has happened. If they can demonstrate to the court's satisfaction that this really has happened, then that obviates the need to file.

K. Jones: I want to look at a fundamental factor here. I don't want to give the impression that we're not interested in openness in the political process, but I think we need to look at the fundamentals. I think there was a case in the federal House where there was an investigation by the RCMP into the activities of a certain political party, possibly the NDP or perhaps the Reform Party, and there was considerable consternation over this.

I'm wondering how this differs from this same ability to go in, to look into the political party operation and to literally intimidate the political process by putting it through the courts in an investigation process. The political process has been, nationally -- and I think, up until now, provincially -- independently free to operate under their own administration, under a process that generally allowed the organizations to be unintimidated by the governing process -- the governing party, for instance.

Hon. C. Gabelmann: I'm not entirely sure where the member is going, but if there are allegations of criminal wrongdoing, and the police determine to investigate, they can do so without any regard to this act. The Criminal Code provisions are separate and distinct, and the police can do what they feel is appropriate in those circumstances. In this situation, the police don't have a role; the CEO acts as the policing agent.

K. Jones: I accept the Attorney General's statement on that, but does this prevent them from going on fishing expeditions?

Hon. C. Gabelmann: The CEO has obligations that are specified in the legislation. The CEO has obligations to respond to requests to investigate. If it's a fishing expedition.... I don't see any provision in this legislation which would enable fishing expeditions. There must be periodic investigations by the CEO. I think that's clear. On the policing side, the police have enough to do in this country without spending time on fishing expeditions. They will respond if there are allegations that they think require a police investigation.

K. Jones: Then the minister is saying that a periodic investigation without any basis or reason is not classified as a fishing expedition.

Hon. C. Gabelmann: We've passed that section. Or are we still on it?

Interjection.

Hon. C. Gabelmann: "The chief electoral officer must conduct periodic investigations of the financial affairs of registered political parties," etc.

K. Jones: For what reason?

Hon. C. Gabelmann: To make sure they're complying with the law. If the member is operating a meat-packing plant, Agriculture Canada will do periodic inspections to make sure that the member is not selling foul and rotten meat. Is that a fishing expedition? No, it's probably not a fishing expedition -- it's appropriate.

Section 260 as amended approved.

Section 261 approved.

section 262.

Hon. C. Gabelmann: I move the amendment to

section 262 standing in my name on the order paper.

[SECTION 262, in the proposed

section 262 (1), by deleting "section 216 (1) (

b) or 217 (1) (b)," and substituting "section 216 (1) (b), 217 (1) (b), 234.2 (1) (

b) or 234.92,".]

On the amendment.

D. Mitchell: Can we get a confirmation from the Attorney General that this is a housekeeping amendment? That's the way I read it, but I just want to make sure I understand it properly.

Hon. C. Gabelmann: It's housekeeping inasmuch as it follows from the new way of dealing with third-party advertising.

Amendment approved.

Section 262 as amended approved.

section 263.

G. Wilson: I just want to know how these injunctions are going to work, because what this says is that you can have an

[ Page 16874 ]

enforcement of this act through a court injunction. Interestingly, the language says "the court may grant an injunction restraining an individual or organization from contravening this Act if the court is satisfied that there are reasonable grounds to believe that the individual or organization has contravened" -- and we can understand that -- "or is likely to contravene this Act." What on earth could be presented to a court that would persuade it that there is a likely contravention in the works? Surely you have to contravene the act and therefore an injunction can be put forward, or not.

An Hon. Member: It's like the Family Maintenance Enforcement Act.

G. Wilson: Yes, right.

Hon. C. Gabelmann: First of all, this anticipation language is a provision that the courts are used to dealing with. I guess an example could be a third party which is clearly and deliberately intending to spend more than $5,000. It would clearly be in contravention of the act. In other words, they are going to be promoting a particular party and so they are contracting for the videotaping and all the artwork and all the production work for a television commercial. In that case, an application could be made. The courts will decide whether it's appropriate to issue the injunction, but that's a theoretical kind of example.

G. Wilson: So it's possible that on application of the chief electoral officer, an injunction could be filed against an individual or organization which they deem is likely to contravene. So this injunction could be done in the middle of an election writ period. For example, all of a sudden there's a massive billboard campaign going on for a very narrow special interest group -- there are a few out there we know might do that. If that's deemed to be connected to a political party, or if it can be proven to be so by a judge in court, an injunction against that organization could be done and those billboards would have to come down. That's what the minister's saying.

But does that also apply, then, to an active political campaign? If there is an active political campaign running advertisements on television or doing other kinds of things -- hiring buses or flying airplanes or whatever -- can there be an injunction where the court can say to a political party in the middle of a writ period: "Cease and desist this activity because you're in contravention of the Election Act?"

Hon. C. Gabelmann: That's theoretically possible. In fact, it's more likely during the writ period than at any other time.

Section 263 approved.

section 264.

D. Mitchell: This

section deals with emergencies. It might be the equivalent of what I would consider a force majeure clause in a contract, where we're talking about natural disasters, I suppose. I'd like to ask the hon. Attorney General: how would we define an emergency? A mistake, as referred to in subsection (1), or an extraordinary circumstance? Are there any examples we can think of where an election may have been impacted because of some kind of a state of emergency or a mistake or an extraordinary circumstance significant enough to alter the timing or result of an election?

[9:00]

Hon. C. Gabelmann: An example might be that we get that major earthquake we're going to get one of these days, and Richmond disappears. The CEO would need some powers to be able to deal with that situation.

D. Mitchell: In the event of the natural kind of redistribution the Attorney General has just described, if there was that kind of an emergency, when I look at subsection (2), I see that the CEO may make orders extending a time period or establishing a new date. I just want to make sure I understand this. Does that mean that in an emergency or in the case of a serious mistake or extraordinary circumstance, the chief electoral officer would have the authority and the power to vary the actual date of an election, to change the writ that may have been issued by the Lieutenant-Governor? Would the CEO have the opportunity and the power and the authority unilaterally under this

section to actually change the date of the election if necessary?

Hon. C. Gabelmann: The answer is yes.

Section 264 approved.

section 265.

G. Wilson: Just a quick question to the Attorney General about the test of these new election procedures in a by-election. Given that the mandate of the current government doesn't end until October 1996, and because of the absence of a member, there may be a possibility -- and this is pure conjecture at this point -- that within the six-month provision a by-election may occur prior to the next election.

The provisions of this say that the chief electoral officer may test these procedures out if it is agreed to by the leaders of the registered political parties entitled to be represented on the Election Advisory Committee. I wonder why it specifies the leaders of those parties and does not specify by unanimous consent of the representatives on the Election Advisory Committee. Given that this committee is to be structured as a creature of this House, I really question why the language would not be inclusive of the members of the committee.

Hon. C. Gabelmann: I think members might agree that 265 is a pretty unusual section. It enables the CEO to, in effect, change the law in respect of procedures in the campaign, so it is very significant. Our feeling was that only those people who could conceivably become Premier should have this say. These are people who are elected by their parties through a process which is now governed by this legislation, as opposed to the advisory committee, which comprises vice-presidents or whomever of a political party. They are assigned to the advisory committee for more technical responsibilities as opposed to significant policy questions which ordinarily would be the function of this Legislature.

So it is a very significant departure, and one that I think has some promise. I'm quite keen about this section, but I also recognize that it is not something that I want to allow the --

[ Page 16875 ]

I'm trying to think of a polite word -- representatives of the political parties who would be assigned to sit on the advisory committee and who would probably be more technically proficient than politically responsible, if I can use that in the big sense of that word.... So if you are going to enact different procedures in a by-election, then one needs a very high level of acquiesence for that unanimity, and unanimity from the party leaders is probably as significant an agreement as can be achieved.

G. Wilson: I have several problems with this

section -- enough that I really think this is not good legislation. I think that, first of all, to allow a member of this Legislature, an officer of this House, to have that kind of authority to amend legislation is wrong; in principle, I think it is wrong. Secondly, it is not up to the chief electoral officer, the Attorney General or any of the members of this Legislative Assembly to arbitrarily determine who may likely be Premier of the province. It is up to the electorate of the province of British Columbia. I think it is presumptuous in the extreme to suggest, just because somebody is a leader of a party that is represented in this House, that necessarily that person may, indeed, be....

Interjection.

G. Wilson: The member says the registered parties. My understanding is that if we go back to the debate on who is eligible for membership, if we go back to the debate about eligibility on that Election Advisory Committee.... We even divided on this matter, and the record is there for anyone to see.

Hon. C. Gabelmann: Let me give the member an example. If this act had been in place in the last general election and the Green Party had run candidates in 50 percent of the ridings, and in 38 constituencies they hadn't elected anybody, the leader of the Green Party would be one of the people who would be consulted. This is not the registered parties in the House; this is the registered parties under this act. That includes any party that ran candidates in 50 percent of the ridings, even though they didn't have any electoral success.

D. Mitchell: I have a question on this, because I think the Attorney General is right that this is an interesting and kind of extraordinary section. Who's to judge right? At some point you have to make a judgment call as to who conceivably might be able to become Premier. If you look at B.C. history, and if we went back as far as the election in 1952, who could have speculated that somebody by the name of W.A.C. Bennett was about to become Premier? He wouldn't have been represented on this Election Advisory Committee, and yet every once in a while there's one of those revolutions in democracy that produces results that can't be anticipated.

I think the Attorney General is saying that the CEO may test new election procedures only in a by-election. Those new election procedures could conceivably affect the outcome of a by-election if they were significant enough, I suppose. What we're really saying here is that a by-election, unlike a general election, can be considered a kind of an electoral laboratory where new ideas or new procedures could be experimented with. They may have an effect on the outcome of a by-election, but that's what we're going to do.

We're going to look at by-elections as potential test cases or models for change, and they might produce results that would be different than if the same rules were used as in the previous general election. Is that right?

Hon. C. Gabelmann: These are procedural issues on the way in which the election is conducted. It could be that technology will enable some additional procedure that isn't envisioned in the act. Upon the agreement of the leaders of all the registered parties -- not the parties in the House, but the registered parties in the province -- the CEO could try something new. It seems to me that if there's something new to try, it's better to try it in a by-election, if everybody agrees, than to try it in a general election where it could potentially create havoc and misunderstanding.

D. Mitchell: Just a brief question. The Attorney General is referring to the membership of the Election Advisory Committee, and I'm recalling a debate we had on division 2 of this bill regarding the establishment of the Election Advisory Committee. He's saying that this committee -- and we're going to deal with this in the next

section of the bill as well -- will be made up of all registered parties, not parties in the House. That is not my recollection of the debate we had under

section 14 of the bill, where we talked about who would serve on the Election Advisory Committee, and my sense was that it was not all registered parties. If we have the Green Party, the Communist Party and the PDA, how large is the committee going to be? My sense was that it was parties represented in the House, parties that had party status in the House. Am I incorrect on that?

The Chair: The minister is eager to answer.

Hon. C. Gabelmann: He sure is. There are three categories. There's the category that the House recognized -- and I'll ask the member for Powell River-Sunshine Coast, too, because the way in which I answered that question may have led him off on the wrong track. I think there are probably three categories. There's the category of parties in the House. That's a House matter and has nothing to do with this act. There is a category of registered political parties, which can be a huge number of parties. Then there are registered political parties that run candidates in at least 50 percent of the ridings. Going back to

section 14 and the representation on the Election Advisory Committee, each of the registered parties -- now, that's a long list -- that has elected members in the House gets two representatives on the committee. There is one for each party that ran candidates in at least half the constituencies, and that's it.

The leaders of those parties -- all the parties represented in the House and all the parties that ran candidates in at least half the constituencies -- are the ones who would be consulted on

section

Section 265 approved.

section 266.

J. Weisgerber: I find the reference to plebiscites interesting. To the best of my knowledge, this is something on which we don't have any legislation in British Columbia. It almost appears to be a

section that creates a new mechanism of a plebiscite in British Columbia. At the same time, we have a

[ Page 16876 ]

Referendum Act in this province, which has been in place since 1990, to which this legislation appears to make no reference. I find this confusing and interesting in the extreme, and I'd encourage the Attorney General to get a copy of the act, because I believe it is very relevant. I believe referenda should be overseen by the chief electoral officer in much the same say as is apparently anticipated in this new creature called a plebiscite.

I don't have any argument with plebiscites. I'm not nearly as keen about plebiscites as I am about referenda. I believe that if a government is going to ask people to express their opinions on an issue, it should be prepared to live with the answers it receives. Governments should be bound by the answers they get from voters. One gets the sense that the government and the drafters of this bill are not going to be particularly keen to use referenda. Rather, they have decided that they may from time to time use this new creature called a plebiscite.

I should perhaps deal with one issue at a time. Can the Attorney General advise the committee whether the omission of any reference to the Referendum Act is an oversight? Is it the case that the chief electoral officer will not be involved in conducting a referendum? Perhaps the Attorney General could clarify for us how these creatures -- plebiscites and referendums -- interact.

[9:15]

The bottom line here -- if I can summarize without having the benefit of advice -- is that in the Election Act we have, and we will continue to have, the ability to conduct a plebiscite. We will have a Referendum Act, which will enable a referendum to be conducted under the rules established in the 1990 act, which the member referred to. We will also have the Recall and Initiative Act, which envisions a different kind of public opinion sampling -- bottom-up directed as opposed to top-down directed. We have more than we have had historically, not less, as a result of the changes that we would be adopting here tonight.

J. Weisgerber: Just so I'm clear on this: the minister is saying that the Election Act in force up until this time had a provision dealing with plebiscites. This is nothing particularly new, and because the old Election Act didn't recognize the referendum process, the minister has decided not to make a specific reference to the way in which referendums are conducted under the Referendum Act. The only reference in this new act to the Referendum Act is to who may be eligible to vote in a referendum. It doesn't in any way deal with the manner in which referendums are conducted. Given the fact that we're expanding the focus of this act, it would have seemed to me appropriate to have included a

section that would have brought referendums under the purview of the chief electoral officer under the Election Act, because my reading of the Referendum Act is that it is silent on the way referendums are conducted. The Election Act remains silent on the way referendums are conducted, and that would seem to leave a lack of definition for the way in which referendums are to be conducted in the future.

Hon. C. Gabelmann: The member may have a point. Under the Referendum Act, the cabinet has the choice as to how to conduct the referendum and as to whether or not to use the Election Act as a governing body for it. If the member is making a suggestion that the various provisions in the Election Act, the Referendum Act and the Recall and Initiative Act should somehow be rationalized, there may be an argument there, but the effect here is not to make any change. There's no change to the way in which the three pieces of legislation worked before or after this act.

J. Weisgerber: I think the Attorney General gets the point. The point is we're reviewing, restructuring and rewriting the Election Act. We've seen fit to deal again under the Election Act with the process of plebiscite, which strikes me as being very similar in nature to the way a referendum is conducted, and I still fail to see why the drafters of this new Election Act simply ignored the Referendum Act. I guess I'm hoping that it's not simply a blind spot with the people who drafted the Election Act as it relates to referendums.

Hon. C. Gabelmann: I didn't do this in my first response, because I didn't want to make this a political thing, but the Referendum Act of 1990 was introduced as a political bill of the day because the plebiscite provisions of the Election Act could have been used, but there was a bit of initiative going on in the province around recall, referendum and public democracy. I think the former government was looking for a variety of mechanisms it could find to help it get re-elected. The Referendum Act really was a result of that.

I don't want to make a political point, because I have no doubt that every government does that in one way or another toward the end of their term, although I can't think of an example in our case. But I know that happens.

I think the reality is that we do not have in this province a clear and focused referendum and plebiscite process. We have a concoction. Some are bottom-up-directed, through R and I, and others are cabinet-directed through the Referendum Act and/or the Election Act. This doesn't change anything.

J. Weisgerber: One last kick at it. It seems to me that we may not have a clear process for referendums, but I can tell you that most of us here have a lot more experience with referendums than we do with plebiscites. I don't remember when the last plebiscite was conducted, but we've seen fit to include a

section in this act to deal with plebiscites. We know that we had a referendum in British Columbia in the last general election, and we've had a national referendum. Indeed, our experience with referendums is considerably greater in the modern context than with plebiscites, and I think it's an oversight. There should have been an inclusion or a cross-referencing of all these processes: plebiscite, referendum, recall and initiative. We've seen fit to tie three of them together under this act.

[ Page 16877 ]

Maybe the current administration looks at the Referendum Act as being politically motivated. I think it had considerable effect, and not only in the political sense, in British Columbia. I believe genuinely that the existence of the Referendum Act directly affected the decision to take the Charlottetown accord to referendum. So it's had a pretty significant role in the history of our country in modern times.

Hon. C. Gabelmann: I can't resist it. The only problem with the Referendum Act is that it should have been called the Plebiscite Act, because that is in fact what it is.

J. Dalton: Looking at the reference to public concern in subsection (1), would I be correct in assuming that

section 193 applies to this and therefore it's a public policy issue? Are we not caught by the spending concerns this statute otherwise refers to?

Hon. C. Gabelmann: There's no connection whatsoever.

D. Mitchell: Just briefly, I think the term "plebiscite" is kind of archaic in 1995, in an age where the buzzword is "direct democracy." Plebiscites were actually designed in an era before governments had an opportunity to sample public opinion through the modern techniques of public opinion surveys, which are also dealt with extensively in this act. So it's curious that we would want to institute a non-binding form of official public sampling, when the government spends so many millions of dollars on public opinion surveys.

Any government knows public opinion, but a plebiscite on matters of public concern is a bit of an anomaly. It is curious that in this modern day and age, when we are simultaneously dealing with things like recall and initiative and binding referenda on governments at all levels, we should be going back to almost the nineteenth century, to the era of plebiscites, non-binding samplings of public opinion by government. It's curious in the extreme that the government would want to be putting this into the Election Act.

Section 266 approved.

section 267.

Hon. C. Gabelmann: I move the amendment standing in my name on the order paper.

[SECTION 267, in the proposed

section 267, by adding the following paragraphs:

(m.1) prescribing information that must be included in

(

i) an application under

section 234.5, or

(ii) an election advertising disclosure report under

section 234.9;

(m.2) prescribing classes of advertising for the purposes of

section 234.91 (1) (a); .]

Amendment approved.

section 267 as amended.

G. Wilson: I wonder if the Attorney General might tell us very briefly what the effect of that amendment is, because there is a cross-reference here that is a little confusing.

Hon. C. Gabelmann: The member is asking me about the effect of the amendment on this section. The answer is that the chief electoral officer can make regulations in respect to third-party advertising, which is new.

D. Mitchell: The

section as amended gives the CEO power to make regulations for a number of different purposes. One of them is for the procedures to be followed by the Election Advisory Committee. That's all subject, of course, to

section 16(2)(e), which deals with the role of the committee.

Section 16(2)(

e) says that the CEO must consult with the committee "before making a regulation at any time other than during the election period for a general election." So it's a circuitous kind of amendment here. If the CEO has the ability to make regulations with respect to the procedures in the Election Advisory Committee, but if the CEO simultaneously has to consult with the Election Advisory Committee before making regulations, what are we really doing here, and what does this say about the autonomy and independence of the CEO?

Hon. C. Gabelmann: I had three things coming at me, so I may not have got the message from the member clear. Back to

section 16, it says that the CEO must consult with the committee before making regulations. That isn't necessarily about making those regulations; it is about procedures and processes -- whatever.

I just want to be sure, because there could be other sections that impact on that as well. Before I make the next definitive statement, I just want to check on one thing. If I were on the opposition benches, I'd be asking the same question, and I'm not sure I would have the answer yet.

The CEO, using both sections together, will consult with the committee about the procedures of the committee and about the regulations. The procedures may impact on how they determine what the regulations are. He or she is going to consult with the committee in respect of both.

D. Mitchell: One of the things I'm looking forward to eagerly -- as an observer, of course -- is watching the evolution of the new independent CEO and his or her relationship with this Election Advisory Committee. I don't want to belabour this point at all. It's interesting. I worry a little bit about the independence of the CEO in terms of the relationship with the Election Advisory Committee, but no doubt we'll have to ensure, as legislators, that we have the very best possible CEO. I won't belabour this point.

[9:30]

I would like to ask the Attorney General, on

section 267 as well, about the CEO's ability to make regulations with respect to different classes of opinion surveys and advertising that might be excluded from the

definitions under the act. What does that really mean? What are different classes of opinion surveys or advertising? What kinds of opinion surveys or what sorts of advertising would the CEO, by regulation, be able to exempt from this act? When I take a look at subsection (

d) and the new subsection (m.2), stating that the CEO can make regulations prescribing classes of advertising.... Are there different kinds of advertising and different kinds of opinion surveys that don't qualify under the act? If so, could the Attorney General be specific about what those are?

Hon. C. Gabelmann: Doing the two questions backwards, in the amendment, subsection (m.2), classes of advertising.... That is, in other words, print advertising on the one hand and electronic on the other, and perhaps radio and

[ Page 16878 ]

television broken down -- that kind of thing. On the other point, at the top of page 185, "prescribing classes of opinion surveys as excluded from the definition of 'opinion survey' " could be, for example.... The classic example is a hamburger poll, which wouldn't be an opinion survey, if the CEO determined and made a regulation to make that effective.

D. Mitchell: I thank the Attorney General for that. I think I understand this now.

Just one final question on subsection (d), where the CEO can make regulations prescribing classes of opinion surveys that could be excluded from the definition in this act. Earlier we talked about an amendment on public opinion surveys that the Attorney General brought forward, which indicated that if one of the media first publishes a public opinion survey.... That is the only requirement for living up to the complicated terms of this act in terms of the details that have to be listed. Could the CEO make regulations with respect to which media might be qualified as having been deemed to be the first publishers of a public opinion survey?

The reason I raise this is that, under the act, I think we're really giving a competitive advantage to the print news media, because they're probably the only ones who would be able to first publish a public opinion survey and list all the elements of methodology, timing, sponsorship, etc. It is unlikely that a short radio or television newscast will be able to be the first to publish or broadcast a public opinion survey. I'm wondering if the CEO would have the ability under this

section to actually deal with that issue in a manageable way and not give such a competitive advantage to the print news media over all forms of electronic media for public opinion survey publication.

Hon. C. Gabelmann: No, the CEO could not use this

section to do that. While we're on this point, let me say that we've actually timed what it would take for a radio or television newscast to include all the relevant information, and it is 30 seconds. The 30 seconds includes not just the data that is required but also the results that are being reported.

D. Mitchell: I'm impressed that the Attorney General has actually tested how long it would take to do this, but the truth is that in a radio broadcast or a newscast, 30 seconds is a fairly significant chunk, even with the fastest news reader. I suppose that during an election campaign a very aggressive television station, in the interest of scooping its competitors, might want to take 30 seconds to do so; nevertheless, it's unlikely that the electronic media would ever have a chance to be first. I think this legislation is going to give a competitive advantage to the print media.

Having said that, the Attorney General says that under this

section the CEO would not have an ability to vary that. Could the CEO do it under any other authority in this act? Is there any discretion there?

Hon. C. Gabelmann: No.

Section 267 as amended approved.

The committee recessed from 9:35 p.m. to 9:38 p.m.

section 268.

J. Dalton: Under 268, the acting CEO will function until the committee is struck to hire a permanent one. Is the effect of that plus 269 that the acting CEO will carry on and make preparations until the committee has actually hired the new CEO?

Hon. C. Gabelmann: Yes.

Sections 268 to 270 inclusive approved.

section 271.

G. Wilson: I just want to nail this down once and for all. I've gone back and read through Hansard, and there's just a little bit of ambiguity there. This

section says: "For the purposes of determining the political parties that are entitled to be represented on the Election Advisory Committee, a political party that is authorized to issue tax receipts under the Income Tax Act at the time this

section comes into force is deemed to be a registered political party as referred to in

section 14." That makes it specific that every political party in the province of British Columbia which has rights under the Income Tax Act to issue a tax receipt is a bona fide political party in the province and has entitlement to sit on the Election Advisory Committee, correct?

Hon. C. Gabelmann: Does the member understand this is a transition section? Going back to

section 14, if the member were to read 14(1)(

b) and take out the words "each registered" and replace them with "each income-tax-receipting political party" and in (

c) where it says "registered political party" use "income tax receipting party," that's the basis of the composition of the advisory board.

G. Wilson: I think we're consistent on that, if I can flip through this huge act to get there. So with respect to the provisions, we talked in terms of consultation with the leaders; that has a caveat with respect to those represented within the Legislative Assembly. No, I guess I stand corrected; it doesn't. You were right -- 265. So that means that the leader of any registered political party that can effectively issue a tax receipt in the province of B.C. at the time that this act comes into force...

Hon. C. Gabelmann: Sits on the advisory board.

G. Wilson: ...sits on the advisory board, right. So we've got that nailed down.

The provision for the additional or extra seat -- I shouldn't say extra because it isn't extra.... But the one seat is the provision of candidates in 50 percent of.... That's a separate issue. I'm delighted because we still have representation here from Elections British Columbia, I think. I think that it's absolutely important that there be no ambiguity with respect to what constitutes a bona fide political party and what does not. Consistently we hear reference to three political parties in this province. The media consistently talk about that.

In the process, to make this a fair process for the Green Party, for Social Credit, for the Progressive Democratic Alliance, Reform, Liberal, NDP, Libertarian and Communist parties, all of those parties that are eligible to give tax receipts

[ Page 16879 ]

are eligible to equally participate in the election in the province of British Columbia. That's the intent of this act in relation to that committee, and I think that's excellent. I'm glad it's on the record, and we'll make sure we hold you to it.

D. Mitchell: I'm just contemplating the size of this committee, at least on the transitional basis. I wonder if the Attorney General can tell us where the meetings are going to be held for the Election Advisory Committee, given the fact that it's going to be a rather large group on the basis of what has just been agreed to.

Hon. C. Gabelmann: We dealt with this briefly very early on in committee. I said at that time that, given today's circumstances, I thought the composition of the committee would be about 13, give or take one or two.

Section 271 approved.

section 272.

Hon. C. Gabelmann: I move the amendment standing in my name on the order paper.

[SECTION 272, in the proposed

section 272 (2) (a), by deleting "the date on which this Act received First Reading in the Legislative Assembly;" and substituting "June 1, 1995;".]

Amendment approved.

section 272 as amended.

D. Mitchell: This

section deals with the registration of political parties and constituency associations. I have a question that is raised as a practical concern that parties and riding associations will have. Under the terms of this act, when can they register? I want to seek confirmation from the Attorney General here, but the way I read this is that under subsection (1), it says that "political parties and constituency associations...may apply to the chief electoral officer at any time after this

section comes into force." My reading of the act says that that would be at the time of royal assent, and I would like to confirm this. Is that correct? Once this bill receives royal assent, will riding associations and political parties be able to commence contacting the CEO to register under this act, and perhaps, should they?

[9:45]

Hon. C. Gabelmann: It is 21 days after royal assent. You can pick that up in

section

Section 272 as amended approved.

section 273.

Hon. C. Gabelmann: I move the amendment standing in my name on the order paper.

[SECTION 273, in the proposed

section 273,

(

a) in subsection (1) by adding ", being June 1, 1995" after "the date on which this Act received First Reading in the Legislative Assembly", and

(

b) by adding the following subsection:

(6) The recording and reporting requirements under

Part 11 in relation to contributions to sponsors of election advertising, or under Parts 6 and 8 of the Recall and Initiative Act in relation to contributions to sponsors of initiative advertising or recall advertising, do not apply to contributions received before this

section comes into force.]

Amendment approved.

section 273 as amended.

G. Wilson: I want to ask a question about section (3) of this, where it talks about funds on deposit:

"For a political party or constituency association that applies for registration under this Act before January 1, 1996, the application for registration must include a solemn declaration of the financial agent for the organization as to the funds held on the date of introduction by or to the credit of the organization."

The date of introduction of this bill is what is being talked about. Existing political parties that have been existing as individual entities may merge and come together prior to or on January 1, 1996, in a merger of political parties. Assuming that there are funds on deposit in each of those parties, is there a declaration of financial disclosure by both those parties, or are they exempted from that because they are not new?

Hon. C. Gabelmann: I think I have this. If neither of the merging parties registers after September 1, and they merge, then there's no reporting. If they register and later merge, then the registering for the pre-merger period is required. Then there is a new party, and it would depend on merger dates and whatever else, and on the date of registration of that party.

I just wonder, is it with these guys, or...?

G. Wilson: No, I was actually just anticipating the inevitable merger of the Liberal and Reform parties.

I was curious because from time to time you will see organizations that will merge together, and they will be carrying liabilities and credits into that merger. So there is actually a date between the date of registration, and the date of actual registration.... In that period, as I understand it, there is going to have to be a reporting period. Is that right?

Section 273 as amended approved.

Sections 274 to 277 inclusive approved.

section 278.

Hon. C. Gabelmann: In today's Orders of the Day, on page 8, on

section 278.... I would like to be clear that we all know what we are talking about, because there have been a number of proposals here. I move the amendment standing in my name on the order paper.

[SECTION 278, by deleting the proposed

section 34 of the Constitution Act and substituting the following:

Member disqualified for acting in other elected office

(1) In this

section "other elected office" in relation to a person means an elected office held by a person as

(

a) a member of the House of Commons of Canada,

(

b) a member of a municipal council,

(

c) a member of a regional district board,

(

d) a trustee under the School Act, or

(

e) a local trustee under the Islands Trust Act.

[ Page 16880 ]

(2) If a person who is a member of the Legislative Assembly sits or votes in any other elected office, the person ceases to be a member of the Legislative Assembly and the seat of the member is vacant.

(3) A person who ceases to be a member of the Legislative Assembly under subsection (2) is, for as long as the person continues to hold the other elected office, disqualified from being nominated as a candidate for or being elected or holding office as a member of the Legislative Assembly.]

On the amendment.

Hon. C. Gabelmann: If I might just take a moment, what this does is.... I want to acknowledge, I think, the member for West Vancouver-Garibaldi -- there's been so much going on -- for his proposal that this idea be accommodated. We have appropriated his idea and put it into our words in order to have consistency and the right kind of language to deal with the Constitution Act and whatever. But the effect of it is to ensure that people can't hold dual offices, whether in Ottawa or locally. If you are a local council member and you get elected to this body, and you continue to sit as a council member, you are no longer a member of this body if you don't quit your council seat.

D. Mitchell: I certainly plan to support the amendment. In fact, I will withdraw mine because I think this one is a little more specific in terms of its language. I think the amendment points out, or at the very least suggests, that to be a Member of the Legislative Assembly of British Columbia is a full-time commitment, a full-time job -- and it should be.

When the language was first put into the legislation suggesting that one could not be a member of this House and a member of the House of Commons in Ottawa at the same time, which was sometimes practised in the nineteenth century, there was recognition that you couldn't do both -- you couldn't serve both -- and that this was a full-time job.

I think that today, to be a member of this assembly and to also be a member at a local government level -- either for a school district, a regional district, a municipal council or the Islands Trust, as specified in the act -- while there may not necessarily be a conflict, takes away from the notion that this is a full-time job in this assembly. On that basis alone I'd be inclined to support the amendment.

I'm not sure that all members of the assembly will support this. I'm not sure if any current members of this House are simultaneously, while serving this House, affected by this kind of an amendment or not, although I think that over the course of the last few years members who have served in this House have simultaneously been members at the municipal level of government. The effect of this amendment, if it is agreed to in committee, would be to prohibit that and to enshrine the notion that it is a full-time commitment, a full-time job to be a member of this House. I think I would support that.

Hon. C. Gabelmann: I think it is important for me to get on the record that my motivation is different from that of the member. It is the motivation which flows from the conflict that could inevitably occur between having to represent one's constituents at a municipal level, school board level, Islands Trust level or regional district level, while at the same time trying to represent one's constituents here at the provincial Legislature when inevitably there are occasions when there is a conflict of interest -- and I use small "c" and small "i" when I say that; I'm not talking about the statute. There can be.

That's not all the time. In fact, quite often there will be a consonance of interests. But there will be occasions when there is a difference of opinion, and it may relate to budget matters, where a member of this House is having to vote for a budget that provides funding to a municipality which is less than the municipality is expecting to get, and the councillor is voting one way at the council level and another way here. We're talking about a dissonance of interests and the potential that an individual cannot fairly represent both of those interests.

G. Wilson: There are occasions when I will rise to disagree with my friend and colleague from West Vancouver-Garibaldi, and this is one of them. I think I understand what the intent of this is. I certainly don't, for a moment, try to suggest that this is not a full-time job; it clearly is. I think we have to think very carefully about what this amendment is doing. This amendment is going to prohibit anybody who is currently sitting on council or on a school board -- who is finishing a term of office -- from running for and winning an election. The Attorney General is saying that that's not true.

As I read this, it says that you cannot simultaneously hold those two positions. It means that if a person enters into a writ period, and there are four or six months left in their term as councillor or school board member, they can't win the election and fill out their term or their mandate within the other electoral jurisdiction. I think that's absolutely wrong.

I can certainly understand if there is an argument that there should not be any double-dipping -- that you shouldn't get remunerated twice. If that's what the provision of this act was to say -- that if you are an elected member and you win, you would have to agree to one or the other remuneration package.... Chances are, unless you're making more in city council, you'll select this one. But you can't get paid twice. I can understand that rationale.

As for the conflict question, I can see that the only time an elected member of a school board or a council is going to fly in the face of their constituents -- because the same constituents who elect them to council elect them to this chamber -- is if they're whipped around by party dogma that tells them that they have to go and vote a different way. That's where there will be a conflict. If, on the other hand, one is involved in a more progressive political party that doesn't have that kind of whip-and-dogma show, clearly you should be able to do both.

I think we have to be extremely careful of what we're doing. What we're about to do is eliminate a whole host of potential candidates from standing for elected office in the next provincial election. That's going to take any elected member to council, a school board, the Islands Trust and so on, and eliminate their opportunity for standing for office, winning and completing a term, which is only another year away if it's a spring election next year -- not even that.

L. Reid: I want to come back to the minister's earlier remarks when he was talking about the conflict that a member may experience if they are sitting in the House of Commons at the same time as being a member of this Legislature, as one example. I wonder -- and I question the minister -- why someone who sits on a parks board is not included in this list if, indeed, his intention was to be consistent.

G. Farrell-Collins: I suspected that the Attorney General was going to answer, but he wants to think about it for a

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minute. I think it's a good point that was raised by the member for Richmond East. Quite frankly, I think everybody who has spoken to this amendment has raised good, valid points. The member for West Vancouver-Garibaldi raised a good point about not representing two groups at the same time. The member for Powell River-Sunshine Coast raised some good issues, as has the member for Richmond East.

I can throw one other one in, if I can. It's that, while you may not want to have somebody representing two things or holding down two jobs -- the conflict the Attorney General mentioned -- and while these are laudable goals, one also has to look at the fiscal implications.

If somebody were to run for a seat in this chamber, whether in a by-election or a general election, and that person was currently sitting on one of the various councils or boards that are listed here, and there was six months left in that person's mandate, he or she would have to resign his or her seat on the council, which would trigger a by-election. In many cases this is extremely expensive. If a councillor for the city of Vancouver had to resign his or her seat at the council table, it would trigger a by-election.

I think that to run a by-election for a single council seat in the city of Vancouver would probably cost in the neighbourhood of $300,000.

I wonder if we're not cutting off our nose to spite our face, so to speak, by doing this. I don't know if we've thought this through far enough to see what the costs would be. In effect, you would cost the taxpayers a great deal of money to run this by-election for a single seat on a city council or you would preclude those members who sit on council from running as candidates. They would have to go their electorate and explain: "I'm going to run.

I want to represent you at the provincial level, and I'm going to cost you $300,000 for a by-election." A lot of people would say: "I'm not electing you to go to Victoria and represent me, because it's going to cost us $300,000." It would preclude a lot of people from moving on in the political process and seeking an opening to serve their constituents at a different level.

[10:00]

I don't discount the good comments of the member for West Vancouver-Garibaldi or those of the Attorney General, but I think that we should let the constituents decide. Let the electorate decide about all those conflicting determinations, which they have to take into consideration during an election campaign. That's where it should rest. I'm a little concerned about the amendment for that reason.

Hon. C. Gabelmann: In answer to the member for Richmond East, each municipality has a variety of committees that do various things. I suspect that some municipalities have people who do the functions of a parks board but aren't elected. The only city that I know has an elected parks board is Vancouver, but they all perform similar responsibilities, which are at a lower level than those of school trustees or municipal council members, who have a big budget, etc. That's the kind of distinction to be made there.

In respect of the various arguments, I guess we've essentially heard three. There's the one that says "if this and if that," and there are the two that take different positions. I think all the arguments are good. This wasn't in the original bill. It came into the bill as an amendment from me because an opposition member proposed it, and I have been trying to accept opposition members' amendments whenever I can. What I tried to think through was: do we concern ourselves about the costs of a by-election if someone abandons federal politics to sit in a provincial seat or vice versa?

We don't; we say that you can't do both. Everyone agrees with that. It's in the Constitution Act of British Columbia: you can't sit in the House of Commons and the provincial Legislature.

Interjection.

Hon. C. Gabelmann: It's pretty hard to do physically. I think it's hard to be in the council meeting in Campbell River every Monday night, the subcommittee on whatever it is on Tuesday night, the other subcommittee for budget on Wednesday night and sit here in the House at the same time. It's very difficult for individuals to do both, just as it is to do both with Ottawa.

While I don't have any hard feelings about this one way or the other, frankly, the view that appears to make the most sense is that if people want to serve in provincial politics, then they shouldn't be involved in municipal politics or vice versa. They have to make a choice. This is the same as they do now between federal and provincial.

J. Weisgerber: I have a question for the Attorney General. As I'm reading this, it seems to suggest that persons holding two offices only disqualify themselves when they vote in the other.... The amendment seems to suggest that one could be an elected representative at a municipal level or regional district or school board and also be a member of this assembly, as long as they didn't vote at both the regional district and the municipal level.

My question is: if a member of a municipal council were elected with seven months left in the term and genuinely wanted to avoid a by-election, could that be achieved by not voting at those council meetings, but not physically resigning from the council?

Hon. C. Gabelmann: Yes. In fact, for the last eight months, from January 1 of the election year, which in the Municipal Act is 1996, 1999, etc.... So any time from January 1, 1996, there's no need for a by-election. If the general election took place in October, let's say, of 1995, the person could neither sit nor vote, if they chose to, through till January 1 and could then resign, and no by-election would be required.

K. Jones: New councils and new elected positions are being established now by this government under the Health ministry -- the regional and local health councils. Why are they exempted from this? They are in the same category as any of these other school trustees or municipal council members, in that they are administering funds directly from the provincial government, and they are elected.

Hon. C. Gabelmann: The health boards and health councils -- regional boards and community health councils -- do not have taxing authority. School boards don't necessarily have it, but they do have that option.

K. Jones: Could the minister tell us what taxing authority has to do with this? This is not related to whether they are taxing; it's to whether they're an elected office.

Hon. C. Gabelmann: In this province when we think of a third level of government, we think of the people who are elected under the Vancouver Charter or under the Municipal Act, both as regional district and as municipal councillors, and

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we think of school trustees. Very few of us think of any other elected people, however they are elected, whether they are elected, as in the past, by a hospital society to govern a hospital board or whatever. We don't think of those as a third level of government; what we're talking about here is the third level of government.

G. Wilson: I want to make two points, and let's cut to the quick. First of all, does that mean, for example, that no member of the Sechelt Indian government district -- the Indian band -- could run for political office? They're a third order of government; they're a self-taxing authority. So are we going to exempt all Indian self-government officers from running for political office? That's a tricky one.

Interjection.

G. Wilson: Right. Or maybe they can, but nobody elected to a non-aboriginal government could run. So that's one point.

The second point is: if the government is intent on bringing this in, it strikes me that the time that this should kick in is after the next round of municipal elections. There's a whole host of elected municipal officers who may very well right now be in consideration of or in the process of seeking nomination, because they feel that their term is coming to a conclusion. There's an election next year; there will be very few months left in their mandate. Some of them may have served for two or three consecutive terms and feel that this is a chance to move on to another challenge in public service.

These people didn't enter into this, thinking that they were going to have to immediately resign their seats. So it seems to me that there should be a period in which this should kick in, after the next round of municipal elections.

Lastly, I would be absolutely sympathetic to an amendment that would say that you can't receive remuneration for two offices. I would be 100 percent supportive of that. If you're elected by your constituents and you choose to serve in two areas, that's your choice, but I don't believe that the taxpayer should be paying you twice. I don't think double-dipping is on. There are three concerns. I think we have just not thought this through clearly.

K. Jones: I appreciate the opportunity to get to the root of this issue, and that's what we're attempting to do. With regard to the health councils, once again the minister indicated that there is some decision as to what would be included here on the basis of public perception. I'm wondering how many people perceive the Islands Trust trustees as elected officials or as being in a situation that would be in conflict with this. Only the people who happen to have some constituency interest with the Islands Trust.... Certainly the health councils, such as the South Fraser health