1994 Legislative Session: 3rd 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)

MONDAY, JUNE 20, 1994

Afternoon Sitting

Volume 16, Number 17

[ Page 12095 ]

The House met at 2:05 p.m.

Prayers.

D. Jarvis: It's my pleasure to announce two students from Bayside Middle School in Brentwood Bay: Master Kellen Molsberry, whose mother already works for this wonderful outfit, and Ms. Leanne Dunic, who hopes to be a Page in the near future.

L. Fox: It gives me great pleasure today to stand in my place and introduce an individual whom I first met at a remote lake north of Fort St. James. I will tell the members that I have always been able to catch the largest fish. Would the members please welcome the father of Nicole Boyer, who is -- as the government caucus will be well aware -- Mr. David Ross Boyer.

Hon. B. Barlee: In the precincts of the House today are several spectators who watched a historic match between the media and parliament last Saturday. Unfortunately for the media, although they were quite a quick study, they weren't quite up to our calibre. They were defeated 101 to 79. The battle really evolved into a slaughter before the day was over. We hope they'll have a little better luck next year. Welcome to those spectators who watched this gargantuan match.

The Speaker: Before I recognize the next introducer, are there any responses to the ministerial statement? [Laughter.]

A. Hagen: I do have a response. I'd like the hon. minister to tell us what game they played.

It is with great pleasure that I introduce two lifelong friends of mine -- one hailing originally from my birthplace, Sydney, Nova Scotia -- Sally Kert and her husband, Sheldon, now of Toronto, and my husband, John Hagen. Sally and Sheldon are celebrating their fortieth wedding anniversary in British Columbia, so will you all join me in wishing them well.

V. Anderson: On behalf of Ken Jones of Surrey-Cloverdale, I would like to welcome here today some 30 students of Coyote Creek Elementary School with their parents and their teachers, Miss Teresa Blackstone and Miss Helen Porohowskyj. We welcome them here with their parents.

U. Dosanjh: We have in the gallery today about 25 grade 7 Tecumseh Elementary School children with their principal, Mr. Stanley French, teachers Deborah Rolandi and Diane Richards, as well as some other adults. Would the House please make them welcome.

Hon. D. Marzari: Hon. Speaker, we were all serenaded today by the string orchestra from Queen Mary Elementary School in Point Grey, which was in the precincts today. I'd like the House to thank them and appreciate the fact that they came all the way from Vancouver to play so beautifully for us in the rotunda.

J. Weisgerber: This past Saturday the member for Prince George-Omineca and his wife celebrated the birth of their first grandchild. Kyle Adam Kenneth Dickson is already showing great promise as a scholar, an NHL goalie and a future Reform candidate. Please join me in sending congratulations to the proud parents, Debbie and Kenneth Dickson of Vanderhoof.

J. Beattie: In the early hours tomorrow morning the summer solstice will commence. I wish to draw the attention of the House to the fact that the summer solstice is, along with many other things, primarily a celebration of the fertility of the land. I'd like to remind the House, the government and the public of a quote by Allan Anderson, who said: "There is a profound attachment to the land rooted in the Canadian character. Farming is the single most important factor in the Canadian experience." Hon. Speaker, I hope we all keep that in mind as we go about the business of government.

Oral Questions

COST OF GOVERNMENT ADVERTISING

W. Hurd: I have a question for the Premier. In the last few days, just about every major newspaper on Vancouver Island has become aware of the government's 13 percent land use decision -- and, I might add, every mayor and councillor appears to be aware of it as well. You can't pick up a newspaper without reading about the position. In light of that, will the Premier commit today that he won't launch another big-budget advertising campaign to promote a solution that people already know about?

Hon. M. Harcourt: I am pleased that the opposition is interested in this very important question of a land use decision that this government has been looking at very carefully and has been listening to the people on Vancouver Island about. I am sure that in the next few days his virtue of being patient will be rewarded.

The Speaker: Supplemental, hon. member.

W. Hurd: While the taxpayers of the province are being patient, the opposition understands that the government has bought a $20,000 ad space on BCTV. The Premier and his henchmen had a lot to say about the previous government spending money on frivolous self-serving propaganda. At a time when hospitals are closing beds and when schools are bursting at the seams, how can the Premier justify another big-budget advertising campaign, the like of which we saw with the last failed provincial budget?

Hon. M. Harcourt: The question of bringing to a resolution some of the very important land use conflicts that have plagued this province for far too long is a very important area for the people of Vancouver Island to be involved in. For the first time, the people of Vancouver Island have a chance to be involved in a process called the CORE process, to sit down and talk with each other and to try to work out how much of Vancouver Island should be in parks and how much should be in the harvesting areas, and how we can work with aboriginal people.

That process is coming to a conclusion, and this government will very shortly be making a decision on Vancouver Island and making other land use decisions in this province.

The Speaker: Final supplemental, hon. member.

W. Hurd: Last time, the government spent $50,000 to fly the media and cabinet up to Radar Hill in Clayoquot Sound. They spent $500,000 promoting a budget which landed them

[ Page 12096 ]

a 23 percent standing in the polls. Will the Premier commit to saving money and putting the half-million dollars into planting trees in British Columbia?

[2:15]

Hon. M. Harcourt: We have finally had a policy statement on forestry from the opposition. We have finally tied down how important they see the forests of British Columbia as being -- $500,000 for planting trees in this province is going to take up about two seconds of time in what needs to be done. At the present time this province is planting a quarter of a billion trees every year in the forests -- not $500,000 worth, as the Liberal opposition would have us do. What an insult to the forest industry and the forest communities of this province! The member had all weekend to think up that puny question. That must be why he came up with such a puny forestry policy.

LEGAL AID TARIFF AND STAFF LAWYER SYSTEM

J. Dalton: I have a question for the Attorney General. The opposition has just learned that this government is proposing to slash the legal aid tariff by 221/2 percent by July 1. At the same time, the Attorney General is now seeking the support of Treasury Board to add an additional $9.7 million in order to increase staff from 40 to 160. Could the Attorney General explain this bizarre approach of chopping with one hand and feeding with the other?

Interjections.

Hon. C. Gabelmann: The members do not anticipate my response. The tariff questions are determined by the Legal Services Society, which is independent of government. As members know, the Legal Services Society operates completely independently of government, and they make whatever decisions they decide to make.

The Speaker: Supplemental, hon. member.

J. Dalton: Again to the Attorney General. I have in my hand an analysis of the report of the staff lawyer pilot project. It clearly shows that staff lawyers don't save money. In fact, it appears that the present system is definitely a cost-saver and probably provides a far more effective level of service. In the light of this report, will the Attorney General commit to completing those pilot projects prior to implementing the staffing proposal of the Legal Services Society?

Hon. C. Gabelmann: Unlike members of the opposition, I am not prepared -- nor is government -- to see legal aid costs escalate out of control in the way they have in the last two or three years. Action is needed by both the government and the Legal Services Society to make sure that the additional tens of millions of dollars that are now being expended do not continue to increase the way they have in the last three years. Steps are being taken by both the Legal Services Society independently and this government.

The Speaker: Final supplemental, hon. member.

J. Dalton: The fact is that no one supports these reforms. The Law Society opposes the plan; the Canadian Bar Association opposes it. In fact, Harry Rankin opposes this plan. Harry Rankin has written to the Attorney General: "You have made the Legal Aid Society nothing more than a department of the Attorney General...." Will the Attorney General commit to seeking independent legal advice prior to implementing this plan?

Hon. C. Gabelmann: The Legal Services Society has embarked on a plan of action that has my support.

GUIDING PRINCIPLES FOR LAND CLAIMS NEGOTIATIONS

J. Weisgerber: My question is to the Premier. In early 1991 the government of British Columbia committed to seven guiding principles for land claims negotiations. Can the Premier confirm that these principles still stand as government policy, seeing that they have never been forsworn by this government, at least publicly?

Hon. M. Harcourt: Hon. Speaker, when our government got to office, a task force had been working for a number of months, which the previous government started when the member was the Minister of Native Affairs. Our government adopted all 19 recommendations of that task force, and over the last couple of years it has put in place all of the building blocks that are required for us to now launch, for the first time in this province's history, the very historic settlement of treaties that should have been settled a long time ago.

The Speaker: Supplemental, hon. member.

J. Weisgerber: One of those seven guiding principles was that land claims settlements should be final and binding. Can the Premier confirm that the principle still supported by this government is that claims should be final and binding and not open to renegotiation at some date in the future?

Hon. M. Harcourt: The intent of the treaty process is to get rid of the uncertainty that Price Waterhouse said a couple of years ago had chased away over a billion dollars in investments from this province -- from the forest sector, from mining and from many other areas. Certainly the end result of treaties is to get rid of the uncertainty and conflict that have plagued this province and to get rid of the litigation that has squandered hundreds of millions of dollars in court costs and lawyer costs. It is hoped that by the end of the process, these treaties will be agreements that people sign and will be bound by.

The Speaker: Final supplemental, hon. member.

J. Weisgerber: Indeed, I welcome the news that the government is committed to entering into agreements that are final and binding. One of the other seven principles was that settlements should provide native people with the same rights, privileges and obligations as apply to other British Columbians. Does the Premier and does this government support that principle as part of their land claims negotiating process?

Hon. J. Cashore: I take this as a very serious and constructive question. One example would be that at the present time environmental jurisdiction does not extend to Indian reserves. There have been situations that have been very distressing in that regard, and I don't think that is in the interest of either the first nations people or the people of British Columbia. So through negotiations, we will be able to achieve the assurance of negotiated agreements that will enable the standard of law with regard to environmental

[ Page 12097 ]

considerations to have equivalency. We will also seek to negotiate the opportunity to have a mutual agreement ensuring that the same standards that apply in other parts of the province will also apply there. So there's an example that more than adequately fulfils the concern of the hon. member's question.

ROLE OF PREMIER'S OFFICE IN MOTOR CARRIER COMMISSION DECISION

M. de Jong: On December 18, 1991, Paul Gill called the Motor Carrier Commission to inform them that the Premier's office would intervene on behalf of Kimber Cabs. In response, the Premier's office stated that Mr. Gill was referring to Rita Johnston and not the present Premier. The former secretary to the Motor Carrier Commission has now confirmed that Mr. Gill was in fact referring to the present NDP Premier. Could this Premier tell the House who instructed his staff to state that it was Rita Johnston and not this Premier that Mr. Gill was referring to?

Hon. M. Harcourt: There are two parts to that answer. First of all, there was contact with the previous Premier and with representatives of the taxi industry about expanding in, I think, the fall of 1991 before this government was sworn in. There was communication about cab services under the previous Social Credit government. I can tell you that my office did not contact or make any representations to the Motor Carrier Commission. That would have been improper, the Motor Carrier Commission has said that that would be improper, and it did not take place.

The Speaker: Supplemental, hon. member.

M. de Jong: The Premier needs to know that Rita Johnston herself has stated that she has never met Paul Gill and that she knows nothing about Kimber Cabs. Implicit in the Premier's answer is that Mrs. Johnston is not telling the truth.

A member of the Premier's staff, Chris Chilton, has written to many daily newspapers, stating: "Unfortunately, the coverage overlooked the fact that the Premier in question was Rita Johnston, not Mike Harcourt." My question to the Premier, quite simply, is: who instructed Mr. Chilton to write this letter, and on what information did he base his so-called facts?

Hon. M. Harcourt: As I stated earlier, my office was not in contact with the Motor Carrier Commission about this matter, nor would it be proper for my office to be in contact with the Motor Carrier Commission about this matter, and that was made very clear by my chief of staff.

The Speaker: Final supplemental, hon. member.

M. de Jong: In fact, the Premier conveniently sidesteps the question, and that is the extent of the contact that existed between his office and Mr. Gill. Will he answer that question? What was the nature of the contact? And who's telling the truth -- his office or Mrs. Johnston?

GOODS AND SERVICES TAX

D. Mitchell: My question is to the Premier. Today in Ottawa a parliamentary report has recommended the scrapping and replacement of one of the most hated taxes in Canadian history, the GST. Can the Premier tell the House today whether or not the government of British Columbia made any direct representation to the parliamentary committee making those recommendations? If so, what is the province's position on the harmonization of the GST with the provincial sales tax?

Hon. M. Harcourt: The question of the GST and what should be done with it is part of a number of financial areas that our government is discussing with the federal government. They include the waste and duplication by a variety of federal and provincial departments doing the same thing; the dumping of health, education and social services costs on the province; and the possibility of one agency collecting taxes in terms of joint federal-provincial occupation of taxation areas and cleaning that area up. There's a whole variety of areas that our government is discussing with the federal government. The GST is just one of them.

The Speaker: The bell terminates question period.

Hon. B. Barlee tabled the 1993-94 financial statement of the British Columbia Heritage Trust.

Orders of the Day

Hon. J. MacPhail: I call Committee of Supply in

Section A, the Ministry of Forests estimates. In the main House, I call Committee of the Whole on Bill 46.

CHILD, FAMILY AND COMMUNITY SERVICE ACT

(continued)

The House in committee on Bill 46; D. Lovick in the chair.

The Chair: I would call the committee to order and remind members that we are on

section 34. I'm going to recognize the member for Vancouver-Langara, who I believe has two amendments on the order paper to

section 34.

[2:30]

Can I also take this opportunity to remind members of the committee that we have an agreement whereby, effectively, the amendments will be presented by those who move them and will be spoken to by those who support them, and then we will have a rebuttal or response from the minister. That will end the matter, in most circumstances at least, rather than having lengthy and protracted debates on all of the amendments. We made that agreement last week; I assume that that circumstance and situation still obtains.

section 34.

V. Anderson: I suppose we agree in principle to what you said, even though we may not be sure we exactly said that last week.

section 34(3) the present bill says: "The director must, if practicable...." That seems to us to be just too open-ended, so the amendment recommends that we change it to: "The director must make every effort...." -- to replace the words "if practicable" with the words "make every effort." It's important that that be as strong as possible.

On the amendment.

Hon. J. MacPhail: The point is well taken. Let me just tell you about the intent of the language in terms of the legal construction. There is a legal test attached to "practicable," and it's that where it is practicable, you have to do it; there's no choice. Some of this language, I have had to learn, is

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drafted in a legal context so as to not have to reinvent court tests for it. The court test that the hon. member articulates in his own words is actually thus and is captured in "if practicable."

Amendment negatived.

V. Anderson:

Section 34(3)(

d) has to do with an aboriginal child. This is an area that has been discussed before. If that child is 12 years of age, then I want to make sure the child has the choice of whether or not there is contact made with aboriginal people. Therefore, I would add to the sentence: "...and if the child, being 12 years of age or over, so designates him or herself as such."

On the amendment.

G. Wilson: As the Chair will know, and as the record has shown, we have some strong opposition to the language and the way this legislation singles out aboriginal people, and is therefore not consistent with that which tries to remove classification by race from legislation. The concern that I have with the amendment is that at any age it would seem that there needs to be an even treatment of children and that there should be no segregation, isolation or distinction made in some way for people of aboriginal jurisdiction, I guess, or aboriginal culture, as this bill defines it.

So we would not support the amendment, not because the amendment doesn't at least go halfway to protecting the interests of the child but because of the exclusionary language itself.

Hon. J. MacPhail: The intent of the hon. member's amendment is captured in the definition of aboriginal child, and I'll just refresh our memory of that. A child who is over 12 must declare himself or herself of aboriginal ancestry in order to be defined as an aboriginal child. I'll just refer to it: "'aboriginal child' means a child...who is 12 years of age or over, of aboriginal ancestry and considers himself or herself to be aboriginal." Subsection 34(3)(d), in conjunction with the definition of aboriginal child, will be applied, as the hon. member wishes.

Amendment negatived.

Section 34 approved on division.

section 35.

G. Wilson: We are anxious to get the minister to further clarify subsection 35(1)(

b) with respect to parents' avenues for a hearing under such language as the bill would introduce, suggesting that: "At the presentation hearing the director must present to the court the following: (

a) a written report...(

b) information about any less disruptive measures considered by the director before removing the child...." Is there an opportunity in the presentation of hearings and orders for secondary material to be introduced at that date that would present a position, perhaps advanced by a parent, that the parent would like to have considered by the court as an alternative measure?

Hon. J. MacPhail: The presentation hearing is to determine what has happened up to that point, and is actually to determine the temporary custody or temporary placement of the child. That hearing will be to determine what has gone before that moment, and the director will introduce evidence about what the least disruptive measures, if any, have been up until that point. However, if a parent doesn't agree with the director's presentation the parent will be able to introduce a challenge to the director's point of view. But it will be on actions that have occurred up until that point.

G. Wilson: That's good to hear, although I don't see where there is a provision within this

section or the bill. Perhaps there is something we haven't cross-referenced that provides an avenue for the parent, because this deals primarily with what the director presents. Is it then at the discretion of the court as to whether the court will permit a supplementary report, or is there some provision in the bill that gives the parent freedom to put in what might be considered a minority or secondary report on that process?

Hon. J. MacPhail: I'll take a minute to introduce, if I may, Leigh Ann Seller, who is just joining us now. She is part of the legislation review team and hasn't been with us before, so I welcome her here with us.

Section 34 is about who gets notified to attend the hearing, and the parents are there. Then the hearing process is that people who are called to the hearing have a right to participate. So the nature of the court proceedings wouldn't be captured by the legislation, but it is part of the court proceedings.

G. Wilson: So the opportunity for the parent to make representation lies with the discretion of the court rather than.... There's nothing in the legislation that says the parent will or must have an opportunity. Presumably, therefore, it's at the discretion of the court whether or not the parent is heard. Is that correct?

Hon. J. MacPhail: Well, to the extent that the court has the discretion to determine the relevance of evidence. But people who attend are allowed to participate.

G. Wilson: I wish that were so. But in fact, there are some very significant discretionary powers with respect to relevancy of evidence. I wonder if any consideration was given under 35(1) to add a subsection (

d) that would provide an opportunity for the parent to make direct representation. In that way, in an instance where there is some considerable distinction between what the parent sees as an alternative and what the director is recommending, and if there's consideration given to the honesty of the material that the parent is bringing, the court's discretion would be removed and the parent would have an opportunity for a full hearing. That's what gives us concern.

It's quite conceivable that the weight of the director's appointment and powers may override the opportunity for equal weight to be given to material presented by the parent in a court of law. There's a lot of jurisprudence that would say that our concerns are certainly well worth considering.

The second question that I have deals primarily with 35(1)(c), where the word "identity" is used. Throughout the bill we notice the whole question of aboriginal people. It talks about aboriginal ancestry, culture and heritage, and now it introduces the concept of aboriginal identity. This talks about "an interim plan of care for the child," and in the case of an aboriginal child -- once again segregating or in some way separating aboriginal children from other children -- "the steps to be taken to preserve the child's aboriginal identity." I wonder if the minister could clarify that, because from the

definitions of the bill, one would argue that that is a biological determinant and therefore not subject to any kind of change by virtue of orders brought forward by the

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director. But in this instance it may mean something quite different, in terms of the kind and direction of parenting, the geographical location that the child should be raised in, and so on. I think that needs to be clarified.

Hon. J. MacPhail: In answer to the hon. member's first question, the presentation hearing is an early stage in the court process. If the parent remains unsatisfied or believes, as I think you are indicating, that his or her evidence is not being heard and therefore it's not a fair hearing, then there is an opportunity at the full court hearing to completely challenge that. There's also an opportunity to participate in the presentation hearing, but if that is not satisfactory, there's a full court hearing. This is an interim court step.

[2:45]

In answer to your second question, we are saying that at that early stage of court proceedings, where a child's future is to be determined even in a temporary way, the child's aboriginal ancestry and identity must be considered, and attempts must be made to maintain that identity if having it preserved is chosen at that stage.

Hon. J. MacPhail: I'll just refer the hon. member to guiding principle 2(f), where it says "the cultural identity of aboriginal children should be preserved," and then also 4(2), where it says: "If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered...." So the language is consistent.

I would say that

section 35 deals with the early stages of planning for a child, in which we actually have to go to court. At this early stage we will give an indication, in an interim way -- not with a fully fleshed-out plan -- that if the child is of aboriginal ancestry, that will be taken into account.

V. Anderson: I think this is just a housekeeping matter, but I believe there should be an "or" at the end of 35(2)(a), and I move that it be added. I think grammatically it needs to be there, and I understood at our briefing that it would be put in.

On the amendment.

Hon. J. MacPhail: I know what the hon. member for Vancouver-Langara is going to be in his next life: a legislation drafter -- he's very good at it.

Let me tell you the rule that was applied here. It's a drafting rule, I'm told. It was also used under

section 33(1). When you have a series of choices, you only put the "or" in at the second-to-last choice. Do you see? You'll notice in

section 33(1) that there's only one "or," in subsection (c), which is the penultimate one. It's the same with 35(2); it's the penultimate one there. Apparently it's standard drafting language. The intent has always been that the word "or" is to be considered throughout, and legislation has always read that way.

G. Wilson: If we could move to

section 35(3)(b), I wonder if the minister might clarify this language: "If an interim order is made under subsection (2)(b), the court may...(

b) order the director to remove the child if the parent does not comply with a term or condition included in the interim order."

Hon. J. MacPhail: The

section here applies when the courts have made a supervision order, where the courts have said: "We're not going to remove your child; you can keep your child. But you must follow these rules." Take substance abuse counselling as an example, just to name one that does appear frequently. It's up to the director to enforce that supervision order. At the end of it, part of the order is that if the supervision order is not complied with, you remove the child. So it's not in the director's opinion, or whatever; it's the clear rules outlined by the court.

G. Wilson: I'm not so sure we agree with that. I don't want to get into a long and protracted debate. Notwithstanding that an interim order may in fact spell out some very clear, defined goalposts and rules that have to be maintained and headed toward -- and substance abuse is an example -- it strikes us on this side that this says if under

section 35(2)(

b) there is a question of supervision by the director, then (3)(

b) provides that director the authority to hold over that individual the potential loss of a child any time that director deems that person at variance with a court order, without any reference back to the court and without any

interpretation of it. This minister would know that many interim court orders are subject to frequent revisiting by the courts to get a clarification of what the judge meant. It happens all the time. This says if there's a dispute, the director has the right to determine that in fact that individual is in non-compliance, and therefore can move in and take away the child.

Hon. J. MacPhail: No, in fact that's not the case. The court makes the rules. The director monitors the enforcement of the rules. The alternative actually would be to keep the child in care rather than returning the child home.

G. Wilson: I have just a last comment on this, because we need to have on the record that this is not the case. There are many alternatives, one of which in fact is to revisit the court to find out what the judge meant. There are interim orders that are potential.... We've got a case log now full of stuff that shows interim orders where the judge's order is not clear and is subject to

interpretation.

If under

section 35(2)(

b) the order provides for supervision by the director, I'd like the minister to show me where,

[ Page 12100 ]

under

section 35 or any other

section of this bill, the director is constrained and not free to interpret that interim court order -- because they may not be black-and-white questions -- and act on it without further recourse to the courts, either as required by the director or by the parent who may seek to have some appeal.

Hon. J. MacPhail:

Section 36 deals with that.

The Chair: I want to advise the committee that we must deal with the amendment introduced by the member for Vancouver-Langara.

Amendment negatived.

Section 35 approved on division.

section 36.

G. Wilson: I'll repeat what I've just said. Under

section 36, the recourse, which the minister says protects the parent....

Section 36(1) says: "If the director has reason to believe" -- that is a discretionary power of the director -- "that an interim order under

section 35(2)(

b) no longer protects the child, the director must remove the child." It doesn't say "should seek authority for clarification," "should go back for counselling" or anything else. It says that the child leaves. If the minister can tell us how that's a recourse back for

interpretation, I'd be curious to know.

Hon. J. MacPhail: In fact, if the hon. member reads beyond

section 36(1), the provisions for court review are to either uphold the director's removal or not. Subsequent sections say that the director has to satisfy the court. I will just take a moment to say that people who deal with situations such as this every day are fully aware of the rules and what they have to comply with before and after the fact. They take that into account.

G. Wilson: This is an extremely difficult and sensitive area because, on the one hand, every legislator wants to protect the interests and rights of children. All of us do. By the same token, we have to recognize that empowering an individual to remove a child and.... This says that you take the child first and notify the court seven days later. When you get a hearing, you go before the court and through another set of reviews as per subsections (3), (4) and (5). If the director doesn't satisfy the court, it doesn't say that the director must then return the child.

It says another interim order has to be prescribed. The cost of this is enormous, number one; and the trauma of this is phenomenal, number two.

I fully appreciate that there may be instances where the director has to move quickly to protect that child and his or her interests. I don't have any problem with that at all. I have serious problems when the state provides the power to eliminate the civil rights of individual parents. This is state authoritarianism in its worse form. Notwithstanding the fact that there are instances where children need to be protected from abuse, it seems to me that we have to be just a little less cavalier about how we empower civil servants with the kind of state authority provided in this particular bill.

In response to the minister -- because I know the minister supports this legislation and is obviously presenting it for approval -- this allows the director to act first and go to the court after. What we were asking for in

section 35 is what we would seek to have changed here: to have the court act as an intermediary, so there is not that kind of discretionary authority for a civil servant, essentially, to simply step all over the civil rights of individuals.

V. Anderson: This issue is a major concern, because in the past children have been apprehended without parents understanding why and where. When a child has been taken and there is no reporting to the court or parents within that seven-day period, that's an eternity. That is a major concern which may be covered best by regulations, because we realize that we may need to have the authority in emergency situations. But there needs to be some protection. Parents and children have been abused in the past when this protection wasn't available.

Hon. J. MacPhail: There's no question that in the past some procedures have not worked well, no matter how they were enforced. I daily understand how much more difficult and complex the system is, and how difficult it is to work with the system. But the hon. member does raise one aspect of the system that perhaps has not been very successful. In this new legislation we have tried to make much clearer and shorten the time frame during which we leave children in limbo, so to speak -- and I say that with the greatest of respect -- and to involve the parents as much as possible.

[3:00]

We have incorporated alternative plans. In the past, the courts ruled and that was it; there was no chance of going back and changing the circumstances, regardless of what the parent wanted. Here we are informing the parent at every step of the way. We are shortening the time lines. Also, let me give reassurance that during those seven days the world does not stop. The world continues to seek alternative methods of placing the child or dealing with the child -- some of our other resources that are available to take care, as outlined in the legislation -- so that we don't continue the practice that the member outlines.

M. Lord: I ask leave to make an introduction.

Leave granted.

M. Lord: It's my pleasure today to join with my colleague from North Island, the hon. Attorney General, in welcoming two groups of 30 students each from Ocean Grove Elementary School in my riding. These students are in grades 4 and 5, and are accompanied today by their teacher Mr. Stewart, and a number of other teachers and adults. I ask the House to help me in welcoming this first group of students.

G. Wilson: I know that subsection 36(3) was canvassed earlier, having reviewed the Blues and followed the debate as much as possible. It says: "The director must, if practicable, inform the persons mentioned in

section 34(3)...." -- which is a series of people. I just want the minister to tell us whether or not "if practicable" is something that is determined in the mind of the director or is there some other kind of process that tells us what practicability of notice is going to be? Does that include all of the people notified, or can only some of the people be notified and others not be notified, so that the process could take place without all members under subsection 34(3) having been notified by such?

Hon. J. MacPhail: Yes. Earlier today we discussed it as well. It's a legal test that applies that says "reasonable." There

[ Page 12101 ]

has to be a test of reason so that if you reasonably could do it, you have to do it. It's not a discretionary test.

Section 36 approved on division.

section 37.

V. Anderson: With the concern about the time frame in subsection 37(2), the present time for commencing the protection hearing must not be more than 45 days. We would like to move an amendment that that be 20 days rather than 45 days, as set out in the amendment standing in my name on the order paper.

[SECTION 37(2)

(2) The date for commencing the protection hearing must not be more than 20 days after the conclusion of the presentation hearing, and the protection hearing must be concluded as soon as possible.]

On the amendment.

R. Neufeld: I rise in support of that amendment, unless there is some legal reason why it has to be 45 days. It seems to be an extraordinarily long time. We would support the 20-day amendment put forward by the member.

Hon. J. MacPhail: There's no question that the time that matters are before the court has not always been in the best interests of the child in resolving his or her future. There is absolutely no question that we are committed to trying to achieve the same goal that the hon. members are suggesting for an amendment. However, let me outline to you a couple of the concerns.

I'm speaking from what people have told me about the way life is out there. One concern is that both sides need time during this period to instruct counsel, because this is the court case. From a parent's point of view, 20 days may not be enough time to get all the facts, review the law and get on how to proceed. Of course, in many cases the parent has not been a participant in the process until that point and needs to get access to the files, etc. The other issue is that parents who are in rural areas -- or indeed, non-custodial parents who reside out of the province or in a different area of the province -- are often put at a disadvantage by the shorter time frames.

Anyway, I can offer that we have worked toward very much shortening the time frame in this legislation. We will continue to do so, and I will continue to work on behalf of all of us, with the Attorney General, to try to shorten that court time as much as possible. In other words, let's treat the 45 days as an outside limit but as much as possible try to get the system working so that we can get it prior to that. I would hate, though, to set up a system where, because of the nature of our court system and the itinerant travel of courts, we may put some parents at a disadvantage. But rest assured, the commitment is there for short court time.

R. Neufeld: I appreciate the minister's response. I just have a feeling that 45 days -- and we don't want to go any longer than that -- will become the norm because it's in the legislation; that's what everybody will target, unfortunately. If we could set it at a shorter period, maybe they'd target 20 days or something. With this, they know they will have 45 days, and that's the way it will be scheduled.

Hon. J. MacPhail: The member actually makes an excellent point, certainly one that has been pursued in our deliberations. I don't want to cast any aspersions on the court system. I want to be on the record about that: I am not casting aspersions. But unfortunately, even with our pursuit of the same goal, it was said over and over again to us that at this time it is not possible.

V. Anderson: I understand the minister's reasoning, but she has raised a problem. We understood that by this new legislation we were going to try to develop a court system that was responsive to the needs of the children, rather than continuing in the practice whereby the children are responsive to the needs of the court. The minister has indicated the problem here. I trust that there will be more movement in that direction so that the system is responsive to the needs of the children, not the other way around. There must be a priority here.

Hon. J. MacPhail: Your point is very well taken. That's why we say in so many sections that the court should be the last resort and why we have all these alternatives so we don't end up in court. Just to give us all hope in one other area -- actually, some of us are covered by this.... The family justice pilot projects, which are courts that are not courts, try to take it out.... Some of the staff present are working like crazy to expand those pilot projects to include matters such as this, taking the children out of the realm of the courts completely. So I applaud the member for raising it.

Amendment negatived.

G. Wilson: I have a simple question to the minister. In looking at the processes, initially there's the presentation hearing, then the protection hearing, and a movement toward that as soon as possible. But in the interim, if the director deems that there is some violation of the interim order, it is possible now for the child to be removed. It suggests in the previous

section that by simple written notification, that statement can be made and presumably the court can either uphold it or not, because there's no provision for a court hearing in that section. Does that mean that if a presentation hearing is held and an interim order is set, and then the director intervenes and you've got a 45-day period, there is no process within the interim order for a hearing to be held during that 45-day period? In fact, if you had reduced it to 20, it probably would have been even less likely.

In other words, the way that these three processes are set up, the individual may be subjected to two different litigation processes, if I can put it that way, before the courts: one with respect to a potential violation of an interim order, and the second being a final hearing with respect to protection. I wonder whether the minister has considered that, because it would seem that it might put an individual in double jeopardy.

Hon. J. MacPhail: I hear you saying that the parent could perhaps be in court simultaneously or on dates that are very close together and, because of the timing, may not end up with just one issue being resolved. If the parent is subject to a supervision order and it is determined that the parent has not met that supervision order, the child is removed and we have to proceed to court anyway to determine the future of the child. So it's not as if the parent would be subject to two hearings going on at the same time. The hearings are the same; they would be the same hearing. It's not a double 45-day period; it's just a single 45-day period.

[ Page 12102 ]

G. Wilson: I appreciate that, but that's not what I was getting at. I was talking about a person who is going to attempt at the protection hearing to put their best case forward to have unsupervised custody of their children, and there has already been a presentation hearing with an interim order. If the director acts against the parent because the director deems that the parent is in violation of some supervision order, there is no provision for a resolution in court on that order prior to the 45 days.

Clearly, when they commence the protection hearing after the 45-day period, the director's evidence with respect to the alleged violation, which allowed the director to take the child away, is going to be presented in front of a court.

How on earth is the parent going to be able to adequately argue in a protection hearing if there hasn't already been a resolution of the charges laid by the director under the interim order? That puts the person in a double-jeopardy position before the court, because the judge is going to hear from a director who has taken precipitous action without any appeal being heard. Yet as sure as we're all here, that will be entered as evidence on behalf of the director, and the judge is going to weigh that evidence. Therefore the person will be guilty as charged, without right of appeal, and then will go to a hearing in which that evidence will be used against them. That's my concern.

Hon. J. MacPhail: We must remember that these sections are to deal with situations in which a child is at risk and in need of protection. Therefore this

section is about the protection of the children. If a parent wishes to challenge the protection order or the care of the child, that takes place under

section 36(4) or (5). In any event, the 45 days starts running from the time that the interim order is established. I understand the member's point. These sections, though, are for determining the best interests of the child in terms of his or her protection. So a challenge can take place under

section 36(4) and (5), and then there can be a protection hearing as well.

[3:15]

G. Wilson: I don't want to belabour this, except that it's critically important. We are dealing not only with the right of the child to live an unmolested life, free from abuse, but also with the rights of parents. We're dealing with individual civil human rights in this province. It's a difficult balancing act. Last week when we were debating this, my colleague from Okanagan East introduced a case, on this very point, about a child whose legs were broken while in the custody of a day care. That child was removed from the parent, and the parent was charged with abuse but was later acquitted in court.

Even though the government acted precipitously, and had not allowed her own physician to look after that child, mistakes were clearly made.

Under this provision, the director has the right to take the child from a parent and move toward a protection hearing 45 days later, without the parent having the right to challenge the initial alleged violation. That's a serious problem from our point of view. It would seem to me that if we're looking after the interests of both -- the child's being paramount -- we must also recognize that we cannot, or should not, violate individual civil liberties in this province by empowering the state to have unconstrained powers.

There ought to be some provision in here that says if action has been taken by a director on an interim order, the resolution of the question of the interim order should be made before the 45 days elapses and/or the protection hearing should be delayed until such time as the case has been heard, so that the person doesn't find themselves in a double-jeopardy situation in front of a judge.

Section 37 approved on division.

section 38.

R. Neufeld: This may just be a clarification point.

Section 38(1) says: "At least 10 days before the date set for a protection hearing, notice of the time, date and place of the hearing must be served as follows...." In earlier discussion on the bill, we had an amendment in place which talked about the form of it being written or oral. We don't designate anything here. Is that something that normally takes place, or do you have to write it?

Hon. J. MacPhail: When it is silent, the court rules require written documentation, and the court itself sets out the document that has to be followed.

G. Wilson: I wish to serve notice that is a

section on which we'll call a division.

Subsection (1) says:

"At least 10 days before the date set for a protection hearing, notice of the time, date and place of the hearing must be served as follows...(

c) if the child is registered or entitled to be registered as a member of an Indian band, on a designated representative of the band; (

d) if the child is not registered or not entitled to be registered as a member of an Indian band but is an aboriginal child, on a designated representative of an aboriginal community that has been identified...."

It's saying that we're now taking registration and that if there is non-entitlement to registration as a member of an Indian band, a designated aboriginal community must be served notice with respect to protection hearings. I wonder if the minister might point out to us how that is possible, if there is no entitlement for registration under an Indian band and if the child is under 12 years of age and therefore not designated.

If it is simply on a biological basis -- that is, it is determined that a person has aboriginal heritage vis-a-vis the definition of this -- who is going to determine the aboriginal community and how is that aboriginal community to be identified? The second question is: why?

Hon. J. MacPhail: This legislation gives recognition that there are many children who are aboriginal but are not status.

G. Wilson: I think it does a whole lot more than that, and I think it needs to be on the record that in our judgment, this is a racist piece of legislation. I think it's shameful that it is being introduced in British Columbia.

Subsection 38(1)(d)(ii) says: "...the parent who at the time of the child's removal was apparently entitled to custody...." Apparently in the eyes of whom? By what court hearing? By what process? By what judgment of review is there an apparent entitlement? How does a parent become apparently entitled? Is there such a thing in British Columbia's court of law as apparent entitlement?

Hon. J. MacPhail: To address the point of "apparent custody," it is a term that's used throughout the legislation. It's to deem a person who by agreement has custody of the child, and it's recognized by the courts. It's been tested, because it's also used under the current legislation.

[ Page 12103 ]

G. Wilson: Thank you for that clarification; I think it's useful. Subsection 38(1)(

e) then says: "...on any other person the court considers appropriate." I know the minister will say that that's consistent with the legislation, and it is in part through the parent meeting process and so on. But could the minister tell us whether or not this

section provides for the court to act if the other sections, subsections (2) and (3), are not there -- or, in the case of a non-status aboriginal person, if there is simply an outside appeal made by an aboriginal community? Can the court then simply hear that without the designation under this section?

Just to clarify, so the minister knows exactly what I'm asking, subsection 38(1)(

d) says that if the person is essentially non-status.... It then says: "...(

i) the child, if 12 years of age or over, or (ii) the parent who at the time of the child's removal was apparently entitled to custody, if the child is under 12 years of age; (

e) on any other person the court considers appropriate." And that stands alone -- it's not connected to subsection (1) or subsection (2), because it's distinguished in the act.

So my question is: can an outside intervention to the court directly allow the court to determine the processes for the notice hearing for that child to take place?

Hon. J. MacPhail: Subsection 38(1)(

e) stands alone. It refers -- and it is the practice of today, as well -- to perhaps the extended family, the grandparents or a person who sometimes stands in the shoes of the parent, like in the case of blended families who don't have any relationship in biological terms.

G. Wilson: For final clarification, then, if it's consistent with how it is today, then it can be by any individual who makes application to the court and who the court may deem to have an interest. I think that's the way it works now. I think that's correct.

[3:30]

Section 38 approved on the following division:

YEAS -- 40

Petter

Sihota

Marzari

Pement

Cashore

Charbonneau

O'Neill

Garden

Hagen

Dosanjh

B. Jones

Lortie

Miller

Harcourt

MacPhail

Barlee

Blencoe

Pullinger

Beattie

Conroy

Doyle

Lord

Streifel

Jackson

Kasper

Krog

Brewin

Schreck

Lali

Hartley

Boone

Symons

M. de Jong

Anderson

Tanner

Chisholm

Dalton

Farrell-Collins

Hurd

Stephens

NAYS -- 5

Hanson

Neufeld

Fox

H. De Jong

Wilson

section 39.

M. Lord: I request leave to make an introduction.

Leave granted.

M. Lord: I ask the House to join me for the second time this afternoon, along with my colleague the hon. Attorney General and MLA for North Island, in welcoming the second of two groups of 30 students from Ocean Grove Elementary School in my riding. These students are in grades 4 and 5 and are here with their teacher, Mr. Grant Stewart. I ask the House to please make them welcome.

G. Wilson: I think that we in the Alliance have made our objections very clear throughout. Rather than protract the debate, our intention is simply to draw the minister's attention to areas that we believe are poorly drafted.

With respect to the parties entitled to come to this hearing, I wonder if the minister has considered the notion that, if a person referred to in

section 39(1) appears at the commencement of a protection hearing or becomes a party under subsection (4), that person's entitlement might be ongoing --

whereas other people may be deemed to be important to the hearing and may join at some point after the commencement. I just wonder about

section 39(2) in relation to

section 39(3), with respect to the matter of entitlement and notice of hearing. Has the minister given consideration to that, and if so, could she tell us what she believes is fair about those two processes?

Hon. J. MacPhail: I'm sorry. I don't understand the question.

G. Wilson: It's not a really contentious one; it's just a question of talking about the following....

Section 39(1) says that if the "persons appear at the commencement of the protection hearing, they are entitled to be parties at the hearing...." Subsection (2) says that "if a person...becomes a party under subsection (4)..." -- which says "the court may order that a person be a party at any hearing...." Does that entitle people who become aware of a hearing and who believe they want to participate to have equal rights of notice if they are not at the commencement of the hearing?

R. Neufeld: This is just for an explanation or a clarification of

section 39(1): "If the following persons appear at the commencement of the protection hearing, they are entitled to be parties at the hearing...." Would this include a parent who has never had anything at all to do with rearing the child in their lifetime? Are we saying that all of a sudden that person can appear and take

part in the hearing?

Hon. J. MacPhail: Yes. If the parent who shows up meets the definition of a parent, they possibly could.

Sections 39 to 41 inclusive approved.

section 42.

The Chair: Shall

section 42 pass?

Some Hon. Members: Aye.

The Chair: Excuse me; I believe there is an amendment to

section 42 to the order paper.

V. Anderson: I would bring to the minister's attention that the minister has a notice of amendment on the order paper that reads:

[SECTION 42, in the proposed subsection (2)(

a) by deleting "10 days" and substituting "7 days.]

I agree with the intention that she gave us in the briefing.

[ Page 12104 ]

On the amendment.

R. Neufeld: We have to get a bit of humour in today.

I would agree with the amendment to

section 42 as put forward by the minister, which we so ably went right over. I'm glad we went back and are going to take it into consideration.

Amendment approved.

Section 42 as amended approved.

Sections 43 and 44 approved.

section 45.

V. Anderson: I would draw the minister's attention to her amendment to

section 45.

Interjections.

The Chair: Would the minister care to move the amendment?

Hon. J. MacPhail: Maybe we could do co-ministering here.

I move the amendment standing in my name on the order paper.

[SECTION 45, in the proposed subsection (1) by deleting paragraphs (

a) to (

c) and substituting the following:

(a) 12 months, if the child or the youngest child who was the subject of the initial order was 5 years of age on the date of that order.

(b) 18 months, if the child or the youngest child who was the subject of the initial order was 5 years of age or over but under 12 years of age on the date of that order, and

(c) 24 months, of the child or the youngest child who was the subject of the initial order was 12 years of age or over on the date of that order.]

Amendment approved.

R. Neufeld: Point of clarification.

The Chair: I recognize the member for Peace River North, who requires clarification.

R. Neufeld: The last amendment was not moved by the minister, was it? Not the one just passed, but the one just previous to that.

The Chair: You will appreciate the reference: it was deemed to have been moved, which is close to being ordained.

Section 45 as amended approved.

Sections 46 and 47 approved.

section 48.

Hon. J. MacPhail: I believe I have an amendment on that. I move the amendment:

[SECTION 48, by deleting the proposed subsection (2) and substituting the following:

(2) A director who withdraws from a proceeding must present to the court a written report on the director's reasons for returning the child.]

Amendment approved.

Section 48 as amended approved.

Sections 49 to 66 inclusive approved.

section 67.

V. Anderson:

Section 67(

b) talks about evidence. It seems to me that there needs to be a special reference there to include videotapes of interviews. It's my experience that this would be much fairer for the court and for the child. With interviews that are done in person and then recorded and written out, you have no idea of the attitude, the atmosphere or the kind of questions. In recent court cases this is being included. Therefore I would like to recommend:

[SECTION 67(b), to be amended to read:

(

b) admit any hearsay evidence of the child including videotapes of interviews that it considers reliable;]

On the amendment.

Hon. J. MacPhail: The point is well taken, but videotape evidence is not hearsay evidence; it's classified as direct evidence. However, let me reassure you that

section 67(

c) provides for that kind of evidence. In fact, the rules of the court under the Evidence Act actually provide the necessary guidance around evidence, which recently has been including videotape evidence as well. So it is covered.

Amendment negatived.

Sections 67 to 70 inclusive approved.

section 71.

V. Anderson:

Section 71(3) states: "If the child is an aboriginal child, the director must give priority to placing the child as follows...." Recognizing the principles involved in the act, I would like to move an amendment that the director "may," rather than "must." It seems to me, given all the other directions in the act, the director will take everything into consideration. But the director shouldn't be limited, and it should be "may" rather than "must." So I would move that amendment.

On the amendment.

Hon. J. MacPhail: In an earlier debate the member for Vancouver-Langara made an impassioned speech, which I fully understood, about the nature of the blended family. Let me give him reassurance, though. First of all, this was a priority coming from the aboriginal community in our community report called "Liberating Our Children, Liberating Our Nation." But secondly, the reason we included extended family here was to capture perhaps the circumstances that the hon. member is concerned about. That is not necessarily just an aboriginal family, but the extended family of the community. So this

section really is a priority of the aboriginal community. But I hope his fears are allayed in that the extended family, which may be non-aboriginal, is included in this

section as well.

V. Anderson: If I understand the minister right.... Subsection (3)(

a) says: "...with the child's extended family...." If we take the situation where one side of the family may be aboriginal and the other side -- in this case of an adopted child, for instance -- is not aboriginal in heritage,

[ Page 12105 ]

both sides must be considered or may be considered by the director; it's not weighted to one side or the other. As you go through, the indication as you read it is that it is weighted to one side rather than the other in that particular case.

Hon. J. MacPhail: The hon. member is correct in how he assesses it.

Amendment negatived.

Sections 71 and 72 approved.

section 73.

R. Neufeld: This

section speaks about freedom of information applying only after the bill comes into effect. Does this mean that the existing records of the ministry are not governed by the FOI legislation?

[3:45]

Hon. J. MacPhail: This

section deals with special provisions for freedom of information after the bill is proclaimed. Prior to that, the laws of freedom of information apply in the same fashion that they do now.

Sections 73 to 76 inclusive approved.

section 77.

G. Wilson: We have a question with respect to

section 77(1)(

a) on a third party's personal privacy. Would that kind of restriction also include family members? If there's deemed to be a third-party interest involved, would family members also be prohibited under this section?

Hon. J. MacPhail: Just to clarify, this

section is about the director's ability or inability to release information. A third party would include family members. Is that...?

G. Wilson: I'm sorry I wasn't clear in my question. What I'm saying is: if a family member requested information, would the director be precluded from providing that if the third party's personal privacy is deemed by the director to be involved? In other words, are family members precluded by this from accessing information with respect to third-party interests in their child?

Hon. J. MacPhail: This actually deals with people asking for information about themselves. The restriction here is that if they ask for information about themselves where a third party may be harmed, there would be limitations on that. So this isn't a

section where family members are allowed to ask about other family members.

G. Wilson: Let me have one last try. Obviously I'm not making my question clear. Presumably, if there's information held on file regarding myself as an individual or some other individual, and if I seek to get from the director information in that file that may involve a third-party interest, would that mean that the third-party interest could be denied me even if that was a family member? That's my question: would it include family members in that file?

Hon. J. MacPhail: Yes.

Sections 77 to 81 inclusive approved.

section 82.

G. Wilson: Actually, I wanted to talk about

section 81, but we can deal with it in 82 as well, because it's the same question. I've tried to review the existing legislation and other acts that would be comparable. Is this the same appeal process? It seems that there are several ways in which the appeal process.... If we deal with the two together, under

section 82 the Court of Appeal may hear an appeal under a variety of acts -- in other legislation -- that would affect individual families. Could the minister tell us whether she deems this to be a consistent process with the current procedure, or is there something here that we haven't found? It seems to be worded differently from acts that are currently here. Without going through each

section of the act -- which we could do if you like -- it seems that this is a different process.

Hon. J. MacPhail: This is consistent with what occurs in other areas, and it is consistent with what happens now. We have made it clear on the face of it, and have not referred through the Offence Act.

G. Wilson: From the minister's response, I take it that the Offence Act actually applies; it's just restated in this particular act. Is that so?

Hon. J. MacPhail: You used to have to go through the Offence Act to figure out how to appeal. This is now right in the legislation. So it is the appeal process, and the Offence Act is no longer necessary; it doesn't apply.

G. Wilson: I have one last question on

section 82 -- and I apologize if I am jumping back and forth. In

section 82 it says: "With leave of the Court of Appeal...." I believe that to be consistent in some cases but not in all cases now -- where there can be a direct right to appeal outside of leave of the court. What is the reason for leaving in here that the Court of Appeal has the right to deny appeal on a question of law?

Hon. J. MacPhail: The hon. member probably understands this better than I. You are quite right. It's not universal, but it is common practice and it is a way of.... The sheer volume of cases that would go forth under this legislation requires some sort of review prior to proceeding to a full hearing, so we have chosen the common practice to get leave.

Section 82 approved.

section 83.

V. Anderson: Perhaps the minister could give us an overview on the Child and Family Review Board before we get into discussion on it.

Hon. J. MacPhail: The Child and Family Review Board will be responsible for reviewing any breach of the rights of a child in care. The board is an independent process and will have the ability to investigate and recommend changes. As the minister responsible, I would be able to refer any other matter to them to investigate and complete a report on that can be released to the public.

As well, as part of the implementation process, an evaluation framework involving experts and academics external to our government is being developed. In due course this will enable us to evaluate the impacts of the changes that we are proposing.

[ Page 12106 ]

If I may, I'll just carry on about the criteria for selecting board members. The review board will be an independent body that will review breaches of the rights of children in care and any other issue I may refer to it, as I've said. The board is not part of the ministry and will have the ability to review and investigate independently. The review board will also reassure the community that matters are reviewed externally and that families and children have the ability to request an independent review.

The board members will be chosen from the community and will be representative of the persons whom the bill serves, as well as community professionals who play a role in the protection of children. The board members will have to be sensitive to the needs of the children and families that the bill serves and also to the issues related to abuse and neglect. The specific criteria will be captured in the regulations, and I'm certainly open to any advice in that area. The board members will be provided with training before starting their work in order to ensure that they bring the best possible skills to their tasks.

The scope of the board may be expanded over time to encompass other matters -- for example, appeals from foster parents or third parties, which I hope will be good news to your colleague from Abbotsford, who raised a concern.

We're hoping not to create a top-heavy bureaucracy. That's the last thing I think anyone in this House wants. The members will sit, on an as-and-when-needed basis, with a small support staff. The consultation process leading to the development of this legislation was very extensive and inclusive. We'll continue to do that as we implement the new legislation.

V. Anderson: How does this relate to the ombudsman, on the one hand, and the child advocate -- which we'll be dealing with in the other bill -- on the other hand? What is the relationship between these?

Does this review board have the power to overturn decisions? Or does it make recommendations? Just what does the review board do when they have heard cases from concerned people?

Hon. J. MacPhail: Actually, we'll see in the next bill that the advocate has the right to refer matters to the review board. Secondly, the ombudsman's jurisdiction continues to do administrative reviews of process issues.

I view this review board as a very practical mechanism that actually can make changes. The review board actually can say to the director to stop breaching the law and therefore do what is correct. In a broader sense, if it's a matter that I've referred to it for a sort of systemic review, the review board may also make recommendations about what changes should occur.

V. Anderson: Will the review board be able to make public statements? Will their reports be available publicly? Will they also make independent statements to the Legislature when they desire to do so?

[4:00]

Hon. J. MacPhail: There are a couple of references in the legislation to making the reports public. One is under

section 75(c), which says reports can be published if it's in the public interest. In

section 87 we will see that the reports can be made public. But it is not a legislatively created body.

G. Wilson: The minister says that this is not intended to create a huge bureaucracy. People more cynical than I might say that this looks like just that. As I understand it -- even though the minister has said this is an independent body -- the minister is responsible for appointing up to 15 people to this board. The minister is responsible for appointing the chair. It's a three-year appointment with a potential for successive terms. It's going to organize into panels consisting of three members, and each may designate the member or members or the chair of the panel, and therefore may assign to any panel any complaints or matters that are to be reviewed by the board.

We figured out who is next to be reviewing material for this board. Guess what: it's the child, youth and family advocate. We have just spent several days debating the implementation of a director to provide services that give sweeping powers to the ministry with respect to children who are in need of protection. We now see a creation of this new board -- which is the creation of this government, notwithstanding whether it is deemed to be independent -- that has the power of review and investigation. Indeed, it has the powers of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

This board clearly has substantive power to initiate review and take review from a child, a child's parent or any other person who deems to represent the child, and the child, youth and family advocate. It is clearly very much the creation of another level of bureaucracy.

Why do we need this, in light of the fact that we have just created the position of child advocate? We have just created this director process and the proposition for us to move through.... Why do we now have to put in this quasi-independent body -- and that's all that it will be, because the director is responsible to the minister and the minister has rights to appoint -- that can have referred to it, from the child, youth and family advocate, cases that already have a process in place to be reviewed? Would they look at cases outside of what we have just been debating?

Is there a process that is independent of the ministerial provisions that exist under the current act, for example? On the surface, there is no clear demonstration of need.

Hon. J. MacPhail: We have spent two years in wide-ranging consultation. The recommendation has come from those not only external to this chamber but also from those within this chamber -- and rightly so -- that there has to be a greater degree of accountability in all areas of governing now, and that accountability can't necessarily come from ministries reviewing themselves internally and then reporting out. There has been a widespread call for greater accountability and external and independent accountability.

I would also suggest that while we are creating the advocate, the advocate does not function in a judicial role. The advocate is there to assist the parties to resolve matters prior to them becoming a crisis. However, in those cases where there is a breach -- where there has been an error made and one needs to review it -- rather than going to the courts, we will now have an opportunity.... Children didn't have the right to go to the courts before; we will now have this review board.

We're not breaking new ground here. We have review boards for human rights complaints, health and safety complaints, collective bargaining rights complaints and land dispute issues. Never before have children had an opportunity to have their rights upheld through review. We are giving children in care the same rights we have given for so long to, for instance, people on the job concerning health and safety rights and the right to have that reviewed.

G. Wilson: Before I continue, I wonder if I may seek leave for an introduction.

[ Page 12107 ]

Leave granted.

G. Wilson: I'm delighted that we have in the gallery students from Sechelt Elementary, I believe, with their teacher, Cynthia Normand. I understand that they are involved in a French immersion program, if my information holds me correct. There are 23 in all, including six adults who accompany them. I wish the House would make them welcome, as these students have travelled a long way by a number of ferries to get here and to see democracy doing whatever it does.

Now back to the minister. Some would argue that while there clearly are boards created for virtually everything under the sun, and our children are the most precious of all those matters we seek to govern here, the last thing we want to do is put more and more money into the creation of more and more bureaucracy that deals with more and more issues at the administrative level and less money into direct delivery of service and care. There are those who would suggest that that's precisely what this is going to do. The process in place, as I understand it.... I refer to

section 83(5), which says: "In matters assigned to a panel by the chair of the board, the panel has the power and authority of the board and an order or decision of the panel is an order of the board." It goes on to say that the board may be provided similar authority of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

We can involve ourselves in an ever-expanding bureaucracy here. If one wants to look at matters with respect to worker protection, as the minister raised, goodness knows there is no institution that's more in need of overhauling and reform than workers' compensation and the boards established there. I wonder if the minister can tell us by what protection there is a halt to the size of this board. Presumably the minister has calculated what kinds of costs we can expect to see on an annual basis to support this board.

Clearly this board is not only going to need its directors, but it's going to have a secretariat of sort to keep files, to keep process, to do reviews, to send out notices, to subpoena evidence and so on.

Hon. J. MacPhail: I have found since taking over this responsibility that public accountability is paramount. This is not a burgeoning bureaucracy; it will be a relatively small but certainly efficient operation. I would certainly welcome the opportunity to sit down with the member and go over costs with him; I don't have those right in front of me, but we have anticipated costs and actually budgeted for them.

Not all of us read Monday magazine, but just last week there was an excellent article, which I would refer members to, about former and current kids in care who are actually having to organize among themselves to deal with situations they find themselves in. I really think it's one of the last areas that isn't subject to review but really needs to be. In fact, the public and the community are very much calling for it.

G. Wilson: This is my last comment on this to the minister. How does the minister answer those who argue -- and I believe they are becoming more vocal as this legislation becomes more widely read -- that there is a limit to the extent the state should involve itself in matters of family and child-rearing and to the extent that the state should determine what is and is not appropriate? We recognize that violence and abuse against children, and those kinds of issues, are issues on which society clearly needs to take action, and the state is empowered to do so.

I wonder if the minister might provide an argument to counter this. People are arguing with me that when you set up such a review board there is the danger that it effectively creates step one in the state starting to determine on behalf of families -- particularly low-income families, because they are most susceptible to this kind of legislation and are perhaps most affected by it -- what is and is not going to be accepted. As soon as you have the state empowering itself to do that, you run the serious risk of eroding civil rights.

Recognizing that children clearly have rights -- and I don't argue that -- I wonder if the minister could provide us with an adequate argument against those who would say that this is step one of a social engineering project.

Hon. J. MacPhail: Actually, I was going to be gentle in my comments, until that last remark; maybe I'll still be gentle. I think the hon. member has missed the point of this section. This is a review of where the state has become involved in children's rights and lives. This

section only apples to children in care, so that is where the state has intervened in the family, perhaps to its detriment or the child's detriment. This is not a social engineering exercise. This is a call for giving kids.... I was at a conference this morning on the International Year of the Family at UVic. I spoke with a wonderful young woman, who actually heads the B.C. Youth In Care Network. She's older now, but she was a child in care.

She said: "All we're asking for is that in our families, when you're in charge of us, you treat us the same way that you would other families." This is a time for them to be able to exercise some sort of control over their lives in that area. It's exactly the opposite of what the member outlines.

V. Anderson: I seek two clarifications. You mentioned that foster children and others can apply to this board of review. Will this review option apply to those who were in the system in past years? Is this the place where these persons can come for a review? That would be my first question.

Hon. J. MacPhail: No, it isn't, hon. member, but let me try to give you some assurances. First of all, I hope that this system will greatly deter any abuses against children in care from now on, so that we are dealing with the root of the problem from this day forward. You're quite right: what about former children in care? On the face of it, this won't assist those children in having their cases reviewed.

I actually don't want to give any false hope to former children in care, but it is a matter that I could refer to the board, under my right to refer matters, if, for instance, an institution appears to be the root of many allegations, and therefore an institutional review had to take place. So it might, under those circumstances.

[W. Hartley in the chair.]

V. Anderson: Under

section 83(5), an order or decision of the board or panel, whichever the case might be.... If I understand this right, it is basically about the way the ministry or director has acted. It would be a correction, if you like, and either supporting or asking for a change in the action taken by the ministry only -- not by the court. Am I right there? This is a correction or a review of the ministry's actions in dealing with youth, children and families.

[4:15]

Hon. J. MacPhail: Yes.

[ Page 12108 ]

G. Wilson: Just a clarification. Will the minister send a detailed breakdown of the costs?

Hon. J. MacPhail: Yes, I'll provide you with what we've done in terms of analyzing what the costs could be.

Sections 83 and 84 approved.

section 85.

G. Wilson: I wonder about the dates. Given that the board may review the complaint after 30 days, it strikes me that that's a pretty short time line. I know that members have been arguing to keep the time lines as short as possible, but I just wonder if that's realistic. If this is not going to be a very large organization, and if we're not going to have this new bureaucracy, how on earth is a caseload, which could be huge, going to be dealt with in a matter of 30 days? Very little happens in government in 30 days.

Hon. J. MacPhail: While the bureaucracy may grind slowly, we are faced with dealing with matters much more expeditiously when we're looking after our children. This is actually a situation where the needs of the child in care have to be attended to or corrected. It's my view that when we act as parents and are perhaps told to change the way we parent, we can do that within 30 days. If the system is not doing it within 30 days, then it's timely that it should be reviewed by someone else.

G. Wilson: But with the question of the way we parent, my understanding is that we're effectively saying that this board, which is a creation of government, is going to tell government within 30 days that it isn't doing things properly. Is that right? You've got 30 days for one

section of government to tell the other

section of government to change the way they're acting. Is that an unfair characterization?

Hon. J. MacPhail: The first 30 days is so that the people involved -- the person making the complaint and the receiver of the complaint -- can work it out, resolve it and agree to correct the problem. If they're not successful in that 30 days, then the review takes place and the review board makes a ruling on what should happen.

R. Neufeld: On

section 85(1), could the minister explain under what circumstances the board would not review a complaint and why. In the last sentence it says that the board may review the complaint, so there must be some that may not be reviewed.

Hon. J. MacPhail: The permissive nature is in case it actually gets resolved before the 30 days is past. If a complaint is filed and gets resolved in 30 days, then the board doesn't have to proceed with it. It's not mandatory that they proceed regardless of what has happened within the 30 days. I see a look on the member's face. The complaint is lodged. If it's resolved within the 30 days, then there's no need for the board to review the complaint.

R. Neufeld:

Section 85(1) says: "If a complaint under

section 84 is not resolved within 30 days after the director is notified by the board, the board may review the complaint." That says to me that the complaint has not been dealt with and that the board may review it. That's what I'm trying to get at.

Hon. J. MacPhail: Your point is well taken. What may also occur besides it just being resolved is that a complaint that has been heard before may come forward that is identical in circumstance, nature and, actually, the same child. The board may not need to review it but can make an order.

R. Neufeld: I don't want to belabour this too long. I appreciate what you're saying is if there were a complaint of a similar nature. That would be common sense. But we're interpreting exactly what's written down, and the way I interpret it -- or anybody, I think, who would read it -- is that if it is not resolved within 30 days after the director is notified by the board, the board may review the complaint. I think you should have "must" review the complaint. That still gives the board the ability to decide whether it's a complaint of a similar nature or not, such as the minister mentioned earlier. But I think that giving that latitude gives just a bit too much latitude.

Hon. J. MacPhail: Actually, we have also had this debate as well. Let me reassure you that the regulations -- and again, there will be community consultation on the regulations -- will ensure that all complaints will be heard in a way that makes sense, whether that means actually doing a review or going right to determining the breach. Also -- and this actually happens in other review boards -- there has to be a bit of discretion, in case something is frivolous and can be dealt with prior to the board reviewing it. That's what the flexibility is there for.

R. Neufeld: If that's taken care of in the regulations that deal with that section, that's fine with me.

Sections 85 to 97 inclusive approved.

section 98.

V. Anderson:

Section 98(3) says: "The court may make a restraining order if there are reasonable grounds to believe that a person is likely to molest, harass or annoy...." "Annoy" is a very open word. I think I annoy my family quite often, and they annoy me. People annoy each other; they don't intend to, but people get annoyed by other people who aren't trying to annoy them. So I think that word is entirely too broad for this. I think "molest" or "harass" will cover it equally well, and so I would move the amendment that the word "annoy" be removed and that the

section be left with the words "molest or harass."

On the amendment.

Hon. J. MacPhail: Actually, hon. member, there's no way that anyone could accuse you of being annoying.

We have taken this language from the Family Relations Act, which includes the concept of "annoy." It's for this reason -- not for circumstances which you have just described, by any means. It's to deal with situations where the courts have found themselves dealing with people who have used very creative ways of taking themselves right up to the line but not going over that line. The courts know how to implement this and ensure that it's not used in any negative way. It's been tested under the Family Relations Act, and it has been found to be necessary in order to have proper enforcement.

[ Page 12109 ]

R. Neufeld: We broke with tradition here. I have the same amendment on the order paper -- for the reasons the member for Vancouver-Langara gave.

I would certainly support his amendment. I think "annoying" gets to the point where you could have a restraining order served for just about any reason. I really think the words you have in there -- "molest" or "harass" -- are broad enough that there would be no need for "annoy." It seems to me to be going to the ultimate end. It would be in good taste to remove the word "annoy" from that piece of the legislation.

Hon. J. MacPhail: Just to try to give reassurances to the members opposite, this exact provision has been in the Family Relations Act since 1979. Let me just tell you how it's done. Many families have asked the courts to review and implement this section, and the courts have developed very clear guidelines about when this can be invoked. It actually hasn't created a problem the way we might have anticipated, so I think we can seek comfort in that.

Amendment negatived.

Sections 98 to 100 inclusive approved.

section 101.

G. Wilson: On

section 100, "Out-of-province orders and agreements," is this by written agreement with other provinces, or is there a second, separate statutory obligation that we have for transportability on that section?

I'm dealing with

section 100, I understand. I just went out for a couple of minutes, and we were on section....

The Chair: Member, we're on

section

Section 101 approved.

section 102.

R. Neufeld: Sections 101 and 102 are quite common. We have an amendment on the order paper to amend

section 102. In fact, we would like to see that

section 5 of the Offence Act is in effect, because we're giving broad powers to directors in this legislation -- broader powers than ever before. But nowhere at all through the act have I been able to see where there's a penalty or anything against a director or the Ministry of Social Services or any person who is acting on the direction of the director. In fact, we're really talking about our children. There should be some responsibility here by the people who are taking control of these children.

We see earlier in the bill where there are offence penalties given that are quite extreme -- in some cases I think it's up to $10,000 if you as a citizen don't report -- but nowhere do we see where there are some responsibilities given to the director or anyone in the ministry who has to perform those duties.

I just want to read into the record what

section 5 of the Offence Act says: "A person who contravenes an enactment by doing

an act that it forbids, or omitting to do

an act that it requires to be done, commits an offence against the enactment." So it's pretty straightforward. I would rather see that we remove

section 3 altogether.

With that, I have an amendment on the order paper.

[SECTION 102, by the deletion of subsection (3).]

On the amendment.

G. Wilson: I must say that it doesn't pay to leave the Legislature even for five minutes; you come back and you've got ten sections passed.

[4:30]

I would wholeheartedly agree with the member for Peace River North. We have stated quite clearly throughout the debate on this legislation that the powers that are provided by the state are enormous. There have to be checks and balances in any legislation. In our judgment, it would seem that unconstrained and unrestricted authority is not in the interests of protecting individual rights in this province.

This act dangerously walks the line -- in fact we believe in some instances it crosses the line -- with respect to segregative legislation that isolates individuals and treats people differently from others under one piece of legislation, which we think is offensive. So we wholeheartedly support this amendment. I think the minister on reflection would agree that it is an important constraint that should remain and not be identified as not applying to this act.

Hon. J. MacPhail: The intent of

section 102(3) is to.... I'm glad the hon. member read it into the record. I hope he didn't understand it on his initial reading, because it took me four or five times to understand exactly what

section 5 of the Offence Act says. Rather than allowing the determination of what an offence is to be open-ended, all this says is that the act itself will determine what an offence is. Also, this

section doesn't apply just to directors; it applies to anyone who could be held in breach of the system. The act is clear on what's in a breach and what is an offence.

We're just saying we don't want to overwhelm the system. Indeed, I have heard from the hon. member for Powell River-Sunshine Coast the message that we don't want the courts to intrude in our lives holus-bolus. So we have done the act in such a way that offences are clear. The courts will be deciding what is and isn't an offence; it is part of the court proceedings. We're trying to make this

an act where.... In the beginning, under the principle, I said this was a whole new way of thinking about this. We're trying to make this intrude into the family's and children's lives where necessary and only where necessary.

Amendment negatived.

R. Neufeld: I have a second amendment in that case, if the minister is not willing to accept my first amendment. That is to add a paragraph to the

section and call it subsection (4), which would read:

"A person who is responsible, in whole or in part, for administering this act commits an offence (

a) when the person neglects to carry out a power, duty or function conferred under the Act, without reasonable justification; (

b) when the person violates the rights of children as outlined under

section 70; or (

c) when the person fails to provide, in writing, reasonable grounds for the removal of a child under

section 31."

If we're going to take out the Offence Act, all that does is list the responsibilities of the director and those people responsible for removing children from the home. We are again getting into a very delicate situation. It just adds and designates a bit to the responsibilities and what that person must do. If you leave

section 5 in there and take the Offence Act out, there is no responsibility at all on the side of government or those administering it.

The Chair: The amendment that you're suggesting is out of order, in that only the Crown can suggest an offence. A private member cannot recommend an offence.

[ Page 12110 ]

R. Neufeld: Explain that, please. We cannot make an amendment to this

section -- is that what you're saying?

The Chair: That's what I'm advised, member.

G. Wilson: On a point of clarification, on the amendment: "A person who is responsible, in whole or in part, for administering this act commits an offence...." Is that the amendment that has just been ruled out of order?

The Chair: Yes.

G. Wilson: What specifically was the reason for that? Was it because of the provision of violation of rights under

section 70?

The Chair: No. The reason was that only the Crown can determine an offence. A private member cannot move an amendment which has the effect of creating an offence; that's the prerogative of the Crown.

Section 102 approved on the following division:

YEAS -- 40

Petter

Sihota

Marzari

Pement

Cashore

Charbonneau

O'Neill

Garden

Hagen

Dosanjh

B. Jones

Miller

Harcourt

MacPhail

Ramsey

Barlee

Blencoe

Lovick

Pullinger

Evans

Beattie

Farnworth

Conroy

Doyle

Streifel

Jackson

Krog

Brewin

Schreck

Lali

Boone

Stephens

Hurd

Dalton

Chisholm

Tanner

Jarvis

Anderson

M. de Jong

Symons

NAYS -- 5

Fox

Neufeld

H. De Jong

Serwa

Wilson

section 103.

The Chair: The minister has an amendment to

section 103. I am advised that there will be a division called on this, so you may want to stay around.

Hon. J. MacPhail: I move the amendment standing in my name on the order paper.

[SECTION 103, in the proposed

section 103(2) by deleting paragraph (

b) and substituting the following: (

b) respecting family conferences and mediation;]

Amendment approved.

G. Wilson: So as to save members from leaving and coming back, I did notify the Chair that I would call a division on

section 103. I believe that the act empowers the minister with respect to designation provisions for aboriginal people -- matters that are simply unusual in the extreme to be provided to the Minister of Social Services. I believe they may even be subject to a Charter challenge with respect to matters covered by federal law.

[4:45]

Section 103 as amended approved on the following division:

YEAS -- 40

Petter

Sihota

Marzari

Pement

Cashore

Charbonneau

O'Neill

Garden

Hagen

Dosanjh

B. Jones

Miller

Harcourt

MacPhail

Ramsey

Barlee

Blencoe

Lovick

Pullinger

Evans

Beattie

Farnworth

Conroy

Doyle

Streifel

Jackson

Krog

Brewin

Schreck

Lali

Boone

Stephens

Hurd

Dalton

Chisholm

Tanner

Jarvis

Anderson

M. de Jong

Symons

NAYS -- 5

Fox

Neufeld

H. De Jong

Serwa

Wilson

Sections 104 and 105 approved.

section 106.

G. Wilson: I have two very brief questions.

Section 106(1) states: "The definition of 'in need of protection' in

section 1 of the former Act continues to apply in relation to a child apprehended under that Act, even if provisions of this Act apply in respect of the child." I wonder if the minister might specifically clarify what it is under the provisions of the former act that is anticipated to carry through, and whether appeal can be made directly with respect to provisions under the existing act, given this clause.

Hon. J. MacPhail: I'm advised that when we've taken action under the old act -- for instance, apprehending a child -- that law applies. You can't go back and undo that. That law would apply to the circumstances surrounding that child, including what happens with the parents.

G. Wilson: I would agree; that's certainly what I would expect. So in the interim, then, between the time this act may get third reading and the time that regulations are brought to bear, the former act will apply with respect to that

interpretation, and any action that will be taken cannot be appealed as a result of the passage of this act and its regulations. Is that correct?

Hon. J. MacPhail: Actually, it's to the point of proclamation.

Sections 106 to 125 inclusive approved.

section 126.

V. Anderson: At one point I had an amendment, but I've had other advice. There was a concern on

section 126 that social workers would not necessarily have the qualifications to do the affidavits, that these might not be done as well as they could be, and that this would be unfair to those who were presenting them. But I've been advised by lawyers that that is not the case, so I will not be putting that one forward.

[ Page 12111 ]

G. Wilson:

Section 68(2) of the Evidence Act says: "If the powers and duties delegated to a person referred to in subsection (1) are revoked, that person ceases to be a commissioner for taking affidavits for British Columbia." Would the minister explain the intent of that provision in light of 68(1)(a), (

b) and (c), because it would seem to me unnecessary.

Hon. J. MacPhail: The right to take affidavits flows from doing their job pursuant to those acts. If the powers are delegated to them in their job and they are no longer doing that job, they don't have residual power to take affidavits. It's only attached to when they have that job.

G. Wilson: So I am reading it correctly, then. It states that the power to take an affidavit rests only with that particular case. Subsection (2) is intended to revoke the title of commissioner for the purpose of taking affidavits at the conclusion of that action. Am I reading it correctly?

Hon. J. MacPhail: No, it's at the conclusion of the delegation of authority.

Sections 126 to 148 inclusive approved.

Title approved on the following division:

YEAS -- 38

Petter

Sihota

Marzari

Pement

Cashore

Charbonneau

O'Neill

Garden

Hagen

Dosanjh

B. Jones

Lortie

Miller

MacPhail

Barlee

Blencoe

Lovick

Pullinger

Evans

Beattie

Farnworth

Conroy

Doyle

Streifel

Jackson

Krog

Brewin

Schreck

Lali

Boone

Hurd

Dalton

Chisholm

Tanner

Jarvis

Anderson

M. De Jong

Symons

NAYS -- 7

Tyabji

Wilson

Serwa

Weisgerber

Fox

Neufeld

H. De Jong

Hon. J. MacPhail: I move the committee rise and report the bill complete with amendments.

[5:00]

Motion approved.

The House resumed; D. Lovick in the chair.

Bill 46, Child, Family and Community Service Act, reported complete with amendments to be considered at the next sitting of the House after today.

Hon. J. MacPhail: I call committee on Bill 45.

CHILD, YOUTH AND FAMILY ADVOCACY ACT

The House in committee on Bill 45; J. Pullinger in the chair.

section 1.

J. Tyabji: I'd like to ask the minister about something we canvassed to some extent in second reading in terms of questions, but she had no avenue to answer. The definition of child doesn't cover children in general, and that means it's exclusive of children who are not receiving or entitled to receive designated services -- and, of course, we don't know what those designated services are.

Just to shorten the debate, I'd like to put an amendment on the floor and then have the minister address it. It has the same intent as the questions. I move to repeal the definition of child in the bill and to say that child means a person who is under 16 years of age -- the point of the amendment being, of course, that no children be excluded from having access to a child advocate.

On the amendment.

Hon. J. MacPhail: Our government struck an advocacy committee that involves most of the agencies and ministries responsible for children, and also children who have come under the auspices of government services. As well, the ombudsman and various care deliverers are on that committee. That committee is working hard at expanding the role of the advocate, but at this stage it is agreed that the institutions are not yet ready to accept being declared a designated service, which, of course, is how we can expand the auspices of the advocate.

However, that is our intent -- to expand it as broadly as possible to all children who may come in contact with the government -- but at this stage, only our ministry, under Bill 46, is ready to take on that role. The intent is very much to go in the direction that you're outlining.

J. Tyabji: If the intent is to have other ministries and other services designated, then obviously that would come by regulation. The question here is: why would the definition for the purposes of the statute exclude children -- and then later on it talks about youth -- from participating? If there is currently no designation in the regulations, then it wouldn't matter if it was a non-exclusive definition, but the fact is that it is excluded in the definition, even if things are inclusive in terms of the definition later on.

For example, the minister was talking in second reading about children in high schools or elementary schools, and the fact that there are many youth in the high schools who would like to have an avenue for advocacy. What this bill is doing, independent of the regulations, is not allowing them that avenue. If the minister wants to streamline it in the short term, that should happen in the regulations, not in the legislation, otherwise the legislation would have to be amended later to allow, for example, for youth who were not under Social Services, or the Ministries of Health or Education.

If they were receiving those services directly, they would not be allowed to participate in any kind of advocacy program.

Hon. J. MacPhail: This act is being developed on an incremental basis to include more and more, in the same way the Ombudsman Act and the Freedom of Information and Protection of Privacy Act were.

Amendment negatived on division.

J. Tyabji: For the record, I would like to say that I have the same amendment for youth, but I won't introduce it. I have the same reservations, and I don't think that the intentions of

[ Page 12112 ]

the minister are very clear in terms of why some young people would be excluded as opposed to some young people, if they're receiving services from government, being included. If there is going to be a youth or child advocate, then obviously that advocate should be accessible to all young people and children. I don't know why they would be excluded.

Again in this bill we see that the term "community" is not defined, so for the record I'd like to add the following definition to

section 1: "A community is a body of people living in one region or district and sharing some common interest." The minister said in the last debate that she doesn't want to talk about a community, but we note that the minister can designate an aboriginal community in Bill 45. In this bill, we're talking about communities being involved in advocacy; yet there is no definition of community. So I'd like to put that on the record and then proceed on the rest of the section.

Amendment negatived on division.

J. Tyabji: Could the minister tell us...? She talks about a "designated Act," which means Bill 46, which was just passed, and any other designated act. That also coincides with "designated service." I would assume that would be for the purpose of the regulations, but perhaps the minister could let us know why that's in there.

Hon. J. MacPhail: Both of these are to allow for, as I iterated earlier, the gradual expansion of the bill, so designated services and designated acts can come under the auspices of the advocate as the system becomes prepared for them.

J. Tyabji: Could the minister provide some concrete examples of what a designated service would be, either under the act named or under another act?

Hon. J. MacPhail: An example, but not limited to this -- I'm sure that's not what the hon. member is asking -- would be the Young Offenders Act, where it's a federal piece of legislation but the services are delivered provincially. There are specific services for children under some parts of the Mental Health Act.

J. Tyabji: Because this will be the only avenue for debate on this.... The minister has named two acts that are remedial -- the Young Offenders Act is remedial, to a large extent -- or reactive. Will anything proactive be designated in terms of a service or

an act?

Hon. J. MacPhail: I'm not sure what the hon. member means by proactive. In earlier debate she has mentioned schools, etc. It is our hope that eventually the School Act may come under the auspices of the advocate.

J. Tyabji: Right now, then, the intent would be talking about prescribed ministries, branches or agencies of the government. Has the minister had any discussions with any federal counterparts about the designation of acts or services?

Hon. J. MacPhail: No.

J. Tyabji: Could the minister let us know, for the purposes of this debate, what the intention...? Since we're introducing this new concept of a child, youth and family advocate, and it's going to be restricted in the initial stages -- actually, it looks like it will be restricted throughout its implementation, but in the initial stages it will be severely restricted -- what are the priorities for this minister for prescribing acts or services? Are they existing services, or will new services or acts be designated?

Hon. J. MacPhail: I told you about the interministry committee on this, and I'd be more than happy to give you the membership of that committee in detail. The interministry committee on advocacy is inclusive of the ministries that give services to children, youth and families, the agencies that deliver the services and the youth themselves. That committee is looking at how we can expand the responsibility of the advocate to cover those services.

J. Tyabji: What are prescribed facilities or classes of facilities? Will we be dealing just with Social Services? Can the minister give us some examples of what those would be?

Hon. J. MacPhail: Residential facilities, foster homes, group homes.

Section 1 approved.

section 2.

J. Tyabji: I note that

section 2 says: "The office of Child, Youth and Family Advocate is established (

a) to ensure that the rights and interests of children, youths and their families relating to designated services are protected and advanced and that their views are heard and considered...." Then it goes on, and through the function and the purpose of the advocate, it talks repeatedly about the provision of "designated services" and "advocacy services." So we're to understand quite clearly that the rights and interests of children, youths and their families not related to designated services are outside the scope of the child, youth and family advocate.

Hon. J. MacPhail: Yes.

J. Tyabji: I think the thing that causes the greatest difficulty in this

section comes under

section 2(c), which says that the office is established "to provide information and advice to the government and communities about availability, effectiveness, responsiveness and relevance of designated services...." I think the word "relevance" causes a big problem. If you have a government office advising a community about the relevance of a government program, chances are that program is not welcomed in that community. That sounds a bit like propaganda. Could the minister speak to that?

Hon. J. MacPhail: The word "propaganda" piques my interest. First of all, the advocate is not a ministry appointment; it's an independent advocate reporting directly to the Legislature. Under this section, he or she will provide advice only. Let me just give you an example. In the course of my job, I have learned that some of the institutional services we provided in the fifties and sixties did not meet the test of relevance with regard to what children needed at that time.

J. Tyabji: The only act named in this act as a designated act so far -- in the absence of the regulations and any more specifics -- is the one we just passed: the Child, Family and Community Service Act. A large component of that act dealt

[ Page 12113 ]

specifically with aboriginal peoples. It seems to me that providing advice to either government or communities about the relevance of a designated service, in the event of that designated service being prescribed by this minister -- because there's a lot of that in the other act, where the minister prescribes which aboriginal community can intervene in a custody or presentation hearing with regard to a child who may not be defined by the Indian Act as aboriginal but is defined by this ministry as aboriginal -- has an enormous impact in terms of how that would play out.

Although the minister has said that the advocate will be an independent person, that advocate will now be governed by the act we just passed, and that act was specific in terms of how it was written. This minister was also specific when speaking to how that act should be interpreted.

I think it is quite clear that when the advocate, who is bound by this government's statutes, begins to explain or provide advice to a community about the relevance of the services, programs or initiatives that person is undertaking, that will be directly tied to the acts that have been passed. Even though this government might not be appointing the advocate, it has been crafting the statutes that will govern the advocate.

Therefore it provides only small comfort that it won't be something whereby communities will have it explained to them that this government bill is being interpreted as it is, to impose a certain social engineering concept on a community. That's what it sounds like to me. The social engineering of the other statutes will now be provided in the form of propaganda, information or relevance advice to a community. Could the minister explain that?

Hon. J. MacPhail: I'm going to try to give a general answer to this. The advocate will provide advice to us within our ministry about what's working and what isn't. There won't be orders given under those circumstances, but it will be advice about what may work for children or perhaps what should be added in order to better assist families and children.

[5:15]

R. Neufeld: I have some problems with this section. Actually, I have some problems with the whole bill, to be honest. We have just gone through Bill 46, the Child, Family and Community Service Act, and changed it dramatically -- and I would hope for the better -- for the children we're trying to protect. In it we set up a review panel and all kinds of things -- 15 members if my memory serves me correctly.

Here we're going to have an advocate office "to provide information and advice to the government and communities about the availability, effectiveness, responsiveness and relevance of designated services to children, youths and their families," and "to promote and coordinate in communities the establishment of advocacy services for children, youths and their families...."

That all sounds nice, but I would assume that the Ministry of Social Services should be doing that, as laid out in Bill 46. Why are we now building up another bureaucracy? We're talking about communities. My goodness, there are an awful lot of undefined communities in British Columbia. Maybe the minister could set up some kind of volunteer thing in every community. I would think that the people who would give feedback to the minister about what's working and what isn't in the Child, Family and Community Service Act would be the ones administering it: the director and the people who work in the Ministry of Social Services.

Now all of a sudden we have to enrol another organization or more people in the whole process, to try and give advice and decide what should be changed. To me it's just another bureaucracy where we can get lost again in the process and in paperwork, when we should really be trying to look after the children and the families in the best way we can. By continually having committees of all kinds in different parts of the province to promote and coordinate in communities.... That only tells me that that could be very open-ended and could end up being a massive bureaucracy. And if there's one thing I'm against it's more bureaucracy; I think we've got enough of it now.

J. Tyabji: I don't know that the minister has answered the concerns with regard to subsection (c). Because although she talked about the advocate providing information and advice to the government -- and certainly the member for Peace River North is correct that you'll need quite a few staff members just to provide information and advice to the government -- the minister has said specifically that that would not necessarily result in an order.

I don't know what that means -- whether the government will take the advice but go out of its way not to pass the legislation to follow the advice, in which case it's useless, or whether the government will receive the information and bury it somewhere on a bookshelf. This minister has said that she herself doesn't want to know when children are being apprehended under the bill we've just passed. In this situation, "to the government" might be to a level of bureaucracy where it's job creation.

But the relevance question.... I think the biggest problem is that, if we're talking about an instrument of the Legislature.... Although this person is independent, we do know that the government has the majority and is passing the bills and that the person will be tied to the bills; this person cannot act independent of the statutes such as the one we just passed, which, I believe I put on the record, is a racist piece of legislation that this person will now be tied to follow.

This person will be explaining to the communities of the province why the enactment of that statute becomes relevant to that community, and we don't even have a definition of community in this bill or the previous one.

Could the minister say something that would allay the fears that this is going to be a top-down information session where somebody who works in Victoria will be telling communities why families have to be engineered a certain way? If that won't happen, if they cannot be advising the community about how that community should operate -- because I would imagine that this person will also be able to advise the director in Social Services....

In fact, we know that, as per the previous bill, if this child advocate feels that a family is not operating harmoniously, that person becomes obligated by statute to advise the director, who may then choose to apprehend the children if the family isn't seen to be functioning to the likes or dislikes of the director.

Could the minister tell us why "relevance" had to be in there? Why aren't information and advice enough? If you're telling the community about what government statutes exist or what the laws or the policies are, why would the community need to know why something imposed on them was relevant to them?

Hon. J. MacPhail: This

section is to assist us in ensuring that taxpayers' dollars are being spent in the way that they're supposed to be spent in the delivery of services tocommunities, etc. The information and advice that will be provided to us by an advocate -- and I will remind the hon. members

[ Page 12114 ]

that we're one of the last jurisdictions to actually have an advocate -- will also advise us about the relevance of services to that particular community or situation. Indeed, it may be that he or she doesn't have to address the issue of relevance or that that particular service isn't relevant to that particular community.

I just want to read from this report that I know that my hon. colleagues have said they've read. It is what the community panel said about external advocacy:

"An advocate must represent the preferences or best interests of the individual rather the interests of an agency or organization. In some cases, the ability of a social worker or other government employee to advocate for a client will be compromised by the simple fact that they are government employees. The social services must accept the necessity and legitimacy of advocates who are independent of line responsibilities and, in some cases, entirely independent of the government.

"Non-governmental advocacy groups contribute to the accountability of government. This is particularly true when they have the expertise and resources to monitor and evaluate whether services promised by politicians or required by law are indeed provided."

V. Anderson: I am relatively quiet because, by and large, I endorse the Child, Youth and Family Advocacy Act. It has come out in my community experience before that this is certainly needed.

One of my recent experiences highlights some of the reality of what's being discussed here. I think how we interpret the functions of the office depends on the context in which we read the particular words that are there. It could, and does, mean different things to different people, quite realistically. Working with Peak House and the Pacific Youth and Family Addiction Services Society, one of the realities we discovered was that the social workers we were trying to hire had no ability to work with youth. They were adult-oriented; their processes and training were adult-oriented and individual-oriented.

Actually, for the most part, many of them weren't even well trained to work with families, because they wanted to work with the individual rather than the collective of the whole family. In order to work in that system, they had to have more training, because working with youth is a specialized area, and you need to have an attitude and an understanding.

The systems in our community are adult systems; our government systems are adult systems. By and large, our community systems are run by adults. Particularly in our day and age, when youth are quite different than adults.... I'll use an illustration here, because I think it's relevant; it's an important attitude that I mentioned before. Our girls are three years apart. As each one went through high school, they were different. Their attitudes were different; the world they lived in was much different. We need someone who thinks and is aware of the current base of children and youth.

I think that's what is trying to be arrived at here. So I read it from the context where "relevance" means relevant to the child at the age and stage that they're at, whether they're in kindergarten, elementary school or secondary school. It means relevant to a particular family, whether their children are teenagers or in kindergarten. It's a relevance to where they are, rather than to where the system is. It seems to me that the task being projected here for the advocate is to make sure that the system is adjusting to children, rather than having children adjust to the system. That's how I understand it, and why I support it.

J. Tyabji: It seems that in reading out of the book about the individual over an organization, the minister speaks against the fact that this bill has actually been written, because it talks about the protection of the individual. This is only the protection of certain individuals who have certain designated services.

[5:30]

But leaving that aside for a minute, I have two questions. Is the advocate then supposed to act in the same manner as the legal aid office? I'll have some other questions later on in the bill about that. Second, the minister seemed to say that the function of the advocate would not be so much to explain to the communities the relevance of the programs or services but to explain to the government the relevance of the programs or services. Is that correct?

Hon. J. MacPhail: The answer to the first question is no. The answer to the second question is that the advocate has a multifaceted role: under (c), it is to provide advice to government; under (d), it is "to promote and coordinate in communities the establishment of advocacy services...."

J. T