1995 Legislative Session: 4th Session, 35th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, JUNE 22, 1995

Afternoon Sitting (Part 2)

Volume 21, Number 12

[ Page 16041 ]

The House resumed at 6:55 p.m.

[D. Lovick in the chair.]

F. Garden: I request leave to make an introduction.

Leave granted.

F. Garden: In the gallery are two very special friends from my constituency: Karen Gassoff and Jerry Mannerin. They're accompanied by my daughter Anne. The whole purpose of their visit here is that they're going to be married on the Legislature grounds on Saturday. I'd like us all to bid them welcome to the House and congratulations.

Hon. G. Clark: I call Committee of Supply in

Section A for the purposes of debating the estimates of the Ministry of Employment and Investment. In the House this evening I call committee stage of Bill 26.

CRIMINAL RECORDS REVIEW ACT

The House in committee on Bill 26; D. Lovick in the chair.

section 1.

J. Weisgerber: I'd like to move the amendment previously distributed in my name.

[SECTION 1, by adding the following to the definition of "employer":

(

k) any body, society or organization which is the recipient of moneys from the government.

(

l) any individual, body, company society or organization which the government has granted a tax exempt status or which has been granted the ability to provide receipts for provincial tax deductions.]

The effect of the amendment is to broaden the definition of "employer," with the intent of expanding the application of this legislation. I will say that it is put forward as a friendly amendment, one that I believe supports the intent of the legislation but broadens it.

As I indicated in second reading, I'd like to see this applied particularly to groups that might as their primary function provide recreational services, training services and other services to children, and in which I think there is at least as much risk to children as in the institutions described in the legislation. So it is with the intent that groups that have adults in supervision of children would be covered by the legislation, either by way of tax-supported government involvement or by direct grants from government.

[7:00]

On the amendment.

Hon. C. Gabelmann: The amendment is well intentioned, and in principle I don't disagree with what the member is trying to accomplish. One of the challenges we had in respect to this legislation was dealing with the vast numbers of people who are going to be subject to the checks. In the bill as it is now before us, we're talking about some 280,000 people. I don't know what the additional numbers would be with this amendment incorporated into the bill.

I do know that if we were to include all volunteers -- which I think is not quite what the member is talking about here, but is something we looked at -- we'd be talking about another 800,000. With this amendment we are talking about any organization which is in receipt of any money from government. That would be a large number of organizations. I don't know the number of people involved.

The tax-exempt status.... I suspect the member is talking about churches and other institutions of that kind. I suspect that some day that's where this act will go, but where we were are now is that we have 280,000 people. That's going to take us two years from proclamation, which presumably will be early in the new year, 1996. We're looking at '98 before we can even complete the process for the first phase.

There will be a number of startup problems, no doubt -- there always are -- and issues we will have to deal with. They're easier to deal with in a situation where we have clear authority -- we have the employers who are clear, whether they're school boards, day care centres or other direct or indirect government agencies, in respect of operating funds or governing bodies. I fully expect that whoever is government -- and I say this genuinely -- one of the issues that will be looked at partway through the implementation of this first two-year exercise will be: what's next and who's next?

So I say to the member that I don't disagree with him in principle, but we're two and a half years away, at least, from being able to handle this kind of thing, and we feel we just need to get the experience in a setting that's more doable than this might be. I don't reject the amendment because I oppose it; I reject the amendment because it may be more appropriate at another time.

J. Dalton: Thank you for the observation. I agree with what the Attorney just said -- certainly the intention is good. Let me cite an example whereby I could not support this amendment. I'm a member of the Capilano rugby club. It has received money from the government through community grants. We coach junior teams; in fact, we have people in our club who coach right into the elementary system. I don't think the member is intending to catch all of those people -- not that they wouldn't want to be subject to a search, I'm sure. That's just an example of why the net would be cast, and that's impossible to do at this time.

J. Tyabji: Before speaking to the amendment, I just want to mention how encouraging it is to see the Leader of the Third Party taking his responsibilities as a legislator seriously enough to be the critic of a portfolio. I wish we'd see more of that from leaders of some of the parties in the House.

Having said that, I actually do support the amendment. I think it's a good amendment. I understand the constraints of the financing and how cumbersome putting this into place is going to be. But I just want to put on record that in Vernon, in the Okanagan, we had a problem with the Boys' and Girls' Club. In that case, it was a clear example of someone who was in a position of trust. I don't think someone in the Boys' and Girls' Club would be captured. Maybe the Attorney General could let us know if that person would be. And to what extent was there consideration for the staff and senior administrators of churches to be captured?

Hon. C. Gabelmann: I thought the member was simply supporting the member for Peace River South, but she

proba-

[ Page 16042 ]

bly had a question, and I was busy engaged in something else. So if there was a question there, I apologize, and ask the member just to repeat it quickly.

J. Tyabji: The question was whether or not the staff of organizations like the Boys' and Girls' Club would be captured as the bill is currently written. If not, did the Attorney General consider that that would be phased in at some point? The Lieutenant-Governor-in-Council, of course, can amend this act. I also asked about churches, and whether or not there was discussion about churches being captured.

Hon. C. Gabelmann: The Boys' and Girls' Club is not covered. They're not in receipt of operating funds, and therefore at this stage -- and this goes back to my answer to the member for Peace River South -- it's not going to be considered. That doesn't mean that, as the program expands, they wouldn't be considered at some point in the future.

Amendment negatived on division.

C. Serwa: I move the following amendment:

[SECTION 1, that the definition of "employer" in

section 1. be amended by adding the following paragraph:

(

k) any society, business, charity or other organization or body, whether incorporated or not, which routinely places individuals in a position of trust with respect to the person or persons of a child or children.]

The amendment is very similar, but perhaps slightly different. The intent of the amendment is, again, to expand the definition of "employer."

On the amendment.

C. Serwa: There are a number of reasons for this particular amendment. In spite of what the Attorney General said about the difficulty of the challenge, it has been my experience, especially with the RCM Police and the computer search required for a firearms acquisition certificate, that it is not a major challenge. We're talking about convicted offenders, and there is a mechanism through the use of computers to search very quickly. I'm also concerned about incorporating all individuals to be subject to this legislation, be they in the public sector, in the private sector or volunteers.

The third reason is that on the basis of a previous bill with a similar intent that was brought to this Legislature by the former government, the bill will not succeed if challenged in a court, because of the Canadian Charter of Rights and Freedoms. It won't succeed, because we're only selecting one group of individuals. The former government wrote one up specifically: the Teaching Profession Amendment Act, 1991. We were looking at one group in society, and on that basis the Attorney General's staff advised us that it wouldn't stand the test of the Charter.

My concern is that the philosophy, principles and intent of this bill are very good indeed, and I would certainly hate to see it unable to withstand the Charter. By focusing on only those individuals in the public sector, I suggest that although you're expanding the realm, you're still not capturing all of those in positions of trust or authority in the proximity of children.

It seems to me that perhaps some sort of accommodation.... Rather than instantly checking tens of thousands or perhaps hundreds of thousands of individuals, realistically there could be some sort of progressive check made through the computer services of, let's say, the RCM Police. We can facilitate this. The challenge may be a bit too enormous, but on the other hand, my concern is that a Charter test may preclude this bill being utilized by the government.

Hon. C. Gabelmann: We have very carefully canvassed the question of the constitutionality of the legislation, and we are assured, as best as can ever be determined prior to actually having a judge make a decision, that this is Charter-proof,

whereas the advice at the time was that the legislation aimed specifically at teachers was not. I don't want to go into all the reasons.... But obviously we are talking here about everybody who is in the public sector or service, or who is funded by it for operating purposes, and also all licensed bodies, so it is not aimed at one particular group. That constitutional issue, I'm sure, is not a difficulty. That's the advice I have been given.

I guess that for the rest of it, it goes back to the overall question of volume. We have a 24-month implementation plan for what is in the legislation -- for the groups that are in the legislation. I'll just give rough numbers; I won't give precise numbers. We hope that we will proclaim on January 1. We hope to check about 19,000 records in the first three months of next year, and in the next three months after that -- through April, May and June -- another 40,000, almost. Then in each quarter over the two-year period, the numbers are: 42,000, 31,000-plus, 23,000, 48,000, 40,000 and 34,000.

Because it is grouped into various employee groupings, it doesn't balance exactly. Obviously there will be overlap one way or the other in respect of this implementation.

That volume of 30,000 to 40,000 is all the system can handle and all we'll be able to do. So even if we were to add to the scope to include a million people, we would still then be talking about being able to process perhaps 150,000 per year, if it's all running well and properly, so we're still a long way off. We want to make sure that we get it right. We've made these choices that will be limited to those groups. They're definable, they're clear and they're specific -- and, I think, they're justifiable.

That's not to say that the groups the member would like to include will not be appropriate at some point. I sure wouldn't argue that. My view on this is that with anybody who is in a position of trust with children, we need to know that the position of trust is going to be honoured. This is not an argument between us about the principle; this is an argument about process and timing.

Amendment negatived on division.

J. Tyabji: Following the discussion that's happened so far, is there a provision for voluntary compliance with this act by some of the organizations that have been brought up by the two previous amendments? If so, how would that occur?

Hon. C. Gabelmann: I'm smiling, because the reason I didn't hear the member's question earlier is that I was asking my staff that very question. It occurred to me that it might be the next logical question from the member. I was asking that then and didn't hear the question.

The answer is no, there isn't. It struck me as a good question and one that needs to be addressed at some point,

[ Page 16043 ]

but it is not addressed in this legislation. In other words, if the Boy Scouts or any other group came to us and said, "We want to be included because we like the protections available in the statute, and it's better than what we do or could do now," we aren't in a position at the moment to be able to do that -- again, because it's not in the legislation.

The reason it's not is also because we have a priority listing here, and we wouldn't be able to get them in until the third year in any event. We'll have a couple of sessions, I expect -- '96 and '97 -- that will give plenty of opportunity for whoever is on this side of the House to deal with the issue.

[7:15]

J. Weisgerber: I'd like to inject into the discussion at this point a plug for some form of sexual predators' registry. It seems to me, as we look at the notion and the challenges that the minister identifies in moving to the examination of individuals beyond government service, to be rather a broad acceptance of the notion that for people working with children, if they have a history that would suggest the possibility of abuse, there should be some way of parents and children knowing and being prepared.

I have for some time now been a proponent of a sexual predators' registry, one with safeguards built in for people who have been convicted and apparently rehabilitated, and another set of standards for people who have, for a whole host of reasons, either failed to attend rehabilitation or have, to the knowledge of agencies, not been rehabilitated.

I understand that this probably isn't the right spot to put it in. I recognize that and won't belabour the point. But I do want to say that if the volumes become so challenging, it reinforces the argument for a more active involvement by way of a registry. I'll leave it at that.

Hon. C. Gabelmann: We'll both be out of order; I support the notion of a registry. But the work we've done on that indicates that it is really of no use to have a provincial registry. We need a national registry, because of the mobility. I have been pushing the federal Department of Justice to do that. They're working on it; I think it's something that we will see. I don't know what the timing will be. I don't know what Alan Rock has in mind about it, but there is a receptiveness to it there. That's far better than us working on a provincial registry

J. Tyabji: Just quickly, before we go any further, could the Attorney General please introduce the staff who are in the House with him?

Hon. C. Gabelmann: I actually meant to do that at the very beginning. On my left are Lisa Burgess, who is with the criminal justice branch; Margot Tubman, who is in the public safety and regulatory branch of the ministry; and Eric Davies, who is with the policy and legislation shop in the ministry. My apologies to them and to members for not having done this earlier.

J. Dalton: Why is a municipality not in this definition of "employer"?

Hon. C. Gabelmann: Again, it's volumes. I don't know how many municipal employees would potentially be in positions of trust with children; no doubt many would. This doesn't preclude municipalities from making their own decision that they're going to establish a criminal record check procedure. Some volunteer organizations already do that as a matter of course. I think the answer to all of these questions is volumes. We set ourselves a two-year project, and that's all we felt we could bite.

C. Serwa: I just want to add a few things that my colleague from Peace River South had mentioned with respect to the sexual predators' registry. My former colleagues in a former life developed a private member's bill which was not submitted in the Legislature, primarily because of the recognition of national requirements, because of interprovincial activities. As my colleague was just explaining to me, he felt, in his perspective, that the establishment of that national sexual predators' registry should have even taken precedence over the gun registration legislation that the federal government felt was a high-profile issue.

Standing in my name is another proposed amendment. It has to do with the definition of "employee." I will read the amendment into the record:

[SECTION 1. That the definition of "employee" in

Section 1. be amended by adding the following:

"and additionally includes any volunteer who is regularly placed by the employer in a position of trust with respect to the person or persons of a child or children."]

The definition in the legislation only refers to employees. If there are volunteers within the purview of the employer, then they are not covered or accounted for under this act. It seems to me that if we're looking at public sector involvement, there are volunteers in the public sector who may be placed in a position of trust or authority with young children.

On the amendment.

Hon. C. Gabelmann: I guess there are two basic arguments against doing this at this stage. One is the numbers, and I've already made that argument. The other is that we're not in a position yet structurally to be able to handle the issue of who is going to be given the information. If you have a Little League team, for example, there isn't an employer or a licensed governing body that has some.... "Legitimacy" is the wrong word; I'm struggling for the right word. For a governing body, there's legislation; for employers, there's obviously a firm structure.

For a lot of the volunteer organizations, it's pretty loose in neighbourhoods and communities. While I think that in the long run there needs to be coverage, in the short term we haven't been able to figure out quite how to do that and to protect privacy issues and individual's rights. Somebody who is a volunteer living in one house may have their record or whatever revealed to their neighbour next door who is the chair of the organization, the Little League club. Those are issues that are complex and difficult.

Given that we're a few years away from being able to deal with volunteers in any event, the time to sort out those kinds of issues is really needed.

The Chair: Before I recognize the member, I must advise him that the Chair is having some difficulty. We have no record of another amendment to

section 1.

C. Serwa: I submitted them earlier today to the Clerk.

The Chair: Thank you, member. I'm sorry, but we were struggling because we didn't know what you were talking about. Now we know.

[ Page 16044 ]

C. Serwa: Well, you know those Clerks.

The Chair: Please proceed.

C. Serwa: I still have my specific concerns if we're abandoning that. In listening to the Attorney General, it seems to me that his ministry has to develop criteria....

The Chair: I'm sorry, member. We have already dealt with the amendment that I have just been given. Is there another one? Did you have two amendments to

section 1?

C. Serwa: Affirmative.

The Chair: That's our problem. We've only got the first one.

C. Serwa: I had given six copies of the two amendments.

The Chair: Excellent, thank you. Our error, not yours. Please proceed, member.

C. Serwa: After listening to the Attorney General, the question I have has to do with my belief that the Ministry of Attorney General has to define the criteria, and that the information going to other agencies or inquirers should simply be a yea or a nay, with no other expansion on the offending convictions. In that fashion, respect for the privacy of the individual is there. If the individual feels like appealing the ruling, the mechanism is there, and that is not an invasion of privacy. That will be between the individual and the Ministry of Attorney General.

It seems to me that it becomes very arbitrary unless criteria are established by the Ministry of Attorney General for this specific situation. While it expands the numbers, I firmly believe that it should be simply either a yea or a nay going back to the questioning authority. That's all they should get, and you have to be responsible for the criteria.

Hon. C. Gabelmann: It's more to do with the information in the first instance rather than in the concluding instance. The member is right, as much as possible, that it's a simple yes or no. But in the beginning you're going to be given information about people by somebody you don't know, saying: "This person is a volunteer in my organization. I want you to do a criminal check on him and then tell me whether it's a yes or a no." We don't know whether this is a legitimate volunteer group; we don't know whether this is just a neighbour concocting something in order to spy on his neighbour.

I'm exaggerating a little bit. These are issues that need to be sorted out, and we're just not able to do that. Those are issues that I would expect the ministry will be working on as we go through the rest of this.

There's no question.... For example, there are already groups that I know in various parts of the province where criminal record checks are being conducted in volunteer situations. I think that once those groups see how this legislation works, they will want to be involved in this. I would expect that the ministry will work with those kinds of groups to sort out protocols and procedures so that when the time comes, and if the Legislature decides it's appropriate, the expansions would then take place. We're simply not ready to do that at this point.

Amendment negatived.

J. Tyabji: A quick question to follow up on this. I'm not quite clear if, for example, chambers of commerce or economic development commissions would be captured under the

definitions in paragraph (g).

Hon. C. Gabelmann: I don't know of any chamber of commerce that gets its operating funds from government, so I think it's pretty clear that they're not covered.

J. Tyabji: Why was there no definition for physical or sexual abuse provided? Is that automatically coming under the Criminal Code? And if it is, why wasn't that referred to in the

definitions?

Hon. C. Gabelmann: There was long discussion about that issue at the legal drafters' stages, apparently. I don't know a lot about this because I haven't spent much time on that particular issue, but apparently there is a great deal of difficulty with a definition of physical and sexual abuse. I think that legislative counsel is working toward trying to find

definitions for this and for other reasons in other statutes, but it was felt that it couldn't get it together for this particular legislation. In fact, I think it's not going to be necessary. The process that we have will enable.... It may be more subjective; that may be the member's point. But I think -- I hope -- the process provides sufficient protection so that those subjective decisions that do get made by the adjudicator will be appropriate in the final analysis. And if they aren't, then there's an appeal process, in any event.

J. Tyabji: It's actually kind of difficult to hear the Attorney General on this side if he lowers his voice. It sounded like he was saying that if the parameters of physical or sexual abuse are being subjectively determined by the adjudicator -- I would assume that's the person making the decision -- then there's a process to deal with that later. Is that correct?

Hon. C. Gabelmann: We'll get to that later in the bill, but there is an appeal process. The question the adjudicator determines is risk. The decision isn't based on a specific definition of abuse -- sexual, physical or whatever -- it's based on risk. And following that, if somebody's unhappy or disagrees with the decision, they can appeal it.

J. Tyabji: That would make it clear that when there's a clear case of abuse -- physical or sexual -- it doesn't matter if you're being subjective. If there are four different people being subjective about it, then it's fairly clear-cut.

[7:30]

It sounds like the Attorney General is saying that there wasn't enough time to put that definition in here, or there was some dispute in legislative counsel about it. So it's not here, and it will be a subjective decision based on who's assessing the risk. It will also be a subjective decision by the panel of three members of the board. If it is true that it will be completely subjective, is it the intention of the Attorney General to leave it subjective throughout the operation of this act, or will there be, through regulation...? I know that the registrar will be making determinations or setting up some of the guidelines for the act later on. Will there be any clarification coming later?

[ Page 16045 ]

Hon. C. Gabelmann: I'll try to speak more clearly and more loudly. It's important for the member to know that even the Criminal Code does not attempt to define physical or sexual abuse. The definition would evolve through case law. Any case law that has developed out of criminal cases would be used here for interpretive purposes, and that's how it will continue to evolve.

J. Tyabji: On the matter of criminal-record checks.... I know we'll get to it a little bit more in

section 27, but just for the purposes of the

definitions section, are the criminal-record checks...? You have to forgive my ignorance if the answer is something that's self-evident to people with more familiarity with this than I. Will they capture overseas convictions? If so, is that something that will delay the process? That comes into play later on in the bill.

Hon. C. Gabelmann: The answer is no, it will not include foreign records; but let me add a but or a however to that. The difficulty in many countries is the accuracy of their records and the failure of many countries to have the kind of system that we have here with CPIC. However -- another however -- we are now working with American authorities to try to ensure that we can in the future have an exchange of information between that country and ours in respect of those records. Once that's up and running, it will be integrated, and we'll be able to check those records as well -- but not yet.

J. Tyabji: If it would be possible for a third party to provide evidence that there were criminal charges in another jurisdiction, would that be taken into account?

Hon. C. Gabelmann: The things you learn in committee stage! It's technically possible; I think that's the bottom line. I was just asking my staff. If somebody from Seattle, for example, applied for a job in Vancouver, and somebody else said that this person had a criminal record in the States that demonstrated that they should not be working with children in a position of trust, they would have a fairly rigorous exercise through the court system to prove that.

This is something I didn't know until I was advised just now: apparently it would require that the fingerprints of the person who is alleged to have had the conviction in the States would have to match the fingerprints of the person here. Whether or not you'd get an agreement to actually have the fingerprints taken is questionable.

I don't mind admitting that I don't know much about this kind of issue. But even in regular criminal trials, it's something that doesn't happen very often. The ability to prove that kind of allegation, in effect, is what it is.

Rather than pursuing it that way, we'd be far better off putting our energies into trying to get a protocol agreement with the American states in respect of their records, or if their records are held nationally, doing it that way. That would be a better.... We've done that in other cases. In all kinds of other aspects of provincial programs in law, we are now entering protocol agreements with other states and provinces. That's the more effective way to go.

J. Tyabji: I was assuming that a criminal charge anywhere in Canada is automatically captured in a criminal-record check. I hope that's a safe assumption.

Hon. C. Gabelmann: The answer is yes. Anybody who has a warrant out, a charge or a conviction is on CPIC.

J. Tyabji: The Attorney General will remember that about four or five months ago there was a case of a man who had been convicted as a pedophile in England and had come to British Columbia. Where my question actually originated was that I met with some of the people who were trying to make that record relevant in B.C. That's why I asked that question.

We've talked a bit about the United States. It sounded like the Attorney General said, or at least I heard him say, that if a third party brought forward some evidence -- and let's use England as an example, because there was that one case -- of a conviction in another jurisdiction, there would be an application to the courts to have that made relevant. Is that correct? If so, who would make the application, because the Attorney General made specific reference to a court hearing?

The Chair: Just before I recognize the Attorney General, I must advise that I'm having difficulty connecting these questions with the

definitions

section -- so just a caution. Perhaps we'll pick them up at some other point in the bill, but at the moment it's not clear at all.

Hon. C. Gabelmann: The member is asking questions that haven't been explored that fully before. That's good; that's what this place is for.

If the police were notified, then the police could deal through Interpol with Scotland Yard or whoever. If it was clear that this person was a pedophile -- records and the information could be demonstrated in a court -- then that information could be brought forward. I can't tell the member specifically quite how that would happen; this act doesn't establish procedures for that. But I'm advised that there are ways it could happen in those circumstances.

J. Tyabji: This will be my last question on this section. With respect to the registrar's role in this, would the registrar have some discretion, then, to determine where to go with that information? Would the police be informing the registrar if a third party...? For example -- let me back up -- it's a criminal-record check. The criminal-record check automatically goes to the police. The police then would provide some information to the registrar, who would decide what is done with it -- correct?

Hon. C. Gabelmann: I just thought of an easier way to explain this. CPIC is a tool that the police use to keep track of people with a record. The police can normally obtain information about the record from the data on CPIC. If they get their information from another source -- another police agency in another country -- then they can deal with that in the same way. They can report that information to this program the same way as if it had come off the computer screen on CPIC. You just have to be able to prove that, in fact, that record is the case, and that this is the same person.

I think the answer to that question is simple. If the police, either through CPIC or some other source, have the information that this person has a record, then this program can apply.

J. Dalton: Just one observation that I think might be helpful to the committee. The member for Okanagan East raised some interesting points with which, in a technical sense, I agree, but I think there is obviously a practicality here that doesn't work.

We're dealing in this discussion, I presume, with relevant offences. We're talking about Criminal Code offences in

Can-

[ Page 16046 ]

ada. With all respect, even though we should be thinking of ways to cast the net beyond our borders, we can't do that legally. Relevant offences are identified by the law of Canada. United States law, for example.... Even though many Americans could very well be the ones we want to examine, we cannot be saying that somebody has been convicted in Washington State of an offence that we think could affect their working with children. We would have to be experts in Washington State criminal law to make that determination, and I'm afraid we can't do that. I want that comment on the record.

I think you raised a very good point yourself, hon. Chair. You were wondering where this discussion was leading. Well, I wanted to bring it back. Even though it's an important discussion, it isn't relevant to the bill that is before us.

Section 1 approved.

section 2.

J. Tyabji: I'm still shaking my head about that comment in the beginning: "relevant offence." I think anywhere you get convicted it's a relevant offence. But having said that, on the "Purpose" section, obviously the Attorney General has chosen to deal specifically with people who have had a criminal conviction and would have a criminal record. When the Attorney General was drafting the "Purpose" section, was there any consideration given to those people who, although they may not have criminal charges, may be in a position of trust and may have abused that trust but haven't yet been charged for it? Or would that come under outstanding charges?

Hon. C. Gabelmann: If the member is asking whether you can take an investigation of someone and use that as opposed to waiting for charges, the answer is no, you have to wait for the charges.

Sections 2 and 3 approved.

section 4.

J. Weisgerber: I would like to move an amendment that I circulated earlier.

[SECTION 4, in subsection (2)(

b) by adding the following:

(

i) only after reasonable effort has been made to notify the registrar and the individual in question;]

Let me say, before speaking to the amendment, that I had proposed making the amendment under subsection (4)(c), but in reading the bill a bit closer, it seems to me that it would be more appropriate under subsection (2)(b).

On the amendment.

J.

Weisgerber: The intent of this amendment is to ensure that when a charge or a conviction is found by the registrar, the registrar first notifies the individual, rather than, as indicated in subsection (2)(b), "the individual and the employer, governing body or minister...." I think -- and we talked a little bit about it in second reading -- that in order to minimize the embarrassment that someone might be caused where an error occurred, it would be prudent that when a charge or some information that might be detrimental is found, the first response by the registrar would be back to the individual, to allow that individual to respond, saying, for example: "Gosh, it's got to be somebody else.

Will you recheck? I've never been charged. I've never been convicted. I have an ongoing problem with an individual by the same name as me, where the confusion exists."

[7:45]

So I propose, under subsection (2)(b), to add a subsection (2)(b)(

i) which would say: "...only after reasonable effort has been made to notify the registrar and the individual in question."

It would fit better there. It would flow through the rest of the subsections in this area. The intent of the amendment is to see, when a criminal check reveals something of concern, that the organization making the check first goes back to the individual who has authorized the check. I quite honestly can't see any risks to the people involved. I see there being from time to time, as there will inevitably be, errors. This would minimize the concern for all of the parties in the situation where an error exists. So that, again, is a friendly amendment, and I move it in that spirit.

On the amendment.

Hon. C. Gabelmann: This is a complex procedure. I don't pretend to have it clear in my mind so much that I can have an exchange without seeking advice on this. As I understand it, the employer or governing body would not be told of the criminal-record check and the adjudication decision until after there is no longer any possibility of error -- in other words, after fingerprints and full verification. So if there is an error in the CPIC system -- if there is a difficulty with 10,000 John Smiths in British Columbia -- that wouldn't occur, because it would only be after the fingerprint stage that the employer or governing body would be advised.

For that reason, I think the.... I don't know whether the member was sure about that before proposing the amendment, but given that information, I wonder if the member still thinks the amendment is needed.

J. Weisgerber: The only concern I have, having heard the minister's explanation, is that it doesn't seem very consistent with the way the bill is written. The bill suggests that the registrar determines there is an outstanding charge. That's then reverted to an adjudicator, who must then notify all of the people listed.

The intent of the amendment is to achieve what the minister described as being the course of action. I don't think that the way the legislation is written is consistent with the intent of the minister. That's the reason for the amendment.

Hon. C. Gabelmann:

Section 4(2) says: "If the registrar determines that the individual who is the subject of the criminal record check has an outstanding charge...." The determination can only occur after complete and absolute verification, including by way of fingerprint.

The Chair: Shall the amendment pass?

An Hon. Member: No.

The Chair: The amendment is defeated, then, or withdrawn -- one of the two.

J. Weisgerber: I'd be prepared to have it withdrawn.

[ Page 16047 ]

The Chair: For the record, we will note that the amendment has been withdrawn, then.

J. Tyabji: I circulated an amendment to

section 4 as well. I seek to add a subsection (6) to

section 4, which would read: "Notification under subsection (4) and written determination under subsection (5) shall be in confidence and shall remain confidential unless their contents are released under the provisions of another Act, or under the provisions of another

section of this Act."

The reason I've put this in is that I note that the language in here is not specific about notification. Actually, the Attorney General made an interesting point when talking about volunteer organizations, such as a baseball league or something -- a Little League -- where it could be the neighbour next door. It could be an informal process.

I would be concerned, because I note that subsection (4) is specifically written for the possibility of a verbal notification, and that there doesn't have to be written notification unless there's a request for written reasons. And because of that, I would be concerned that.... As the Attorney General pointed out, there are going to be tens of thousands -- in fact, 280,000 -- criminal-record checks conducted in the next two years in order to come up to speed.

If it does turn out that in haste people are calling to say, "Well, here's the results of the check," we wouldn't want that notification to be open to anyone in any way, shape or form, other than to the people listed to have that information, especially when we get to subsection (5), which says: "...must provide written reasons for the determination...to a person referred to...if the person so requests." I would especially like that to be confidential.

On the amendment.

Hon. C. Gabelmann: I think the member's concern, which is legitimate, is captured in

section 6(3). That

section is about use of information, and subsection (3) says: "Information provided under this Act must not be used or disclosed for any purpose other than...." The member hasn't persuaded me why this

section doesn't accomplish what she wants to accomplish. No one can give information out; they can't give it to somebody who phones up for it, or that kind of thing. So I'm not quite sure how we haven't already done what she wants.

J. Tyabji: When I read through the act and I got to

section 6, I noted that subsection (3) specifically says: "...other than the purpose set out in

section 2 or in

section 33 (

n) or 44 (2) or (3) of the Freedom of Information and Protection of Privacy Act." I did note that. But in my reading of it, it didn't seem that that was adequate regarding

section 4(4), because it says, "The adjudicator must promptly notify..." and it doesn't have a confidentiality provision. I would be concerned that the promptness which is specified might take precedence. For example, does the notification of the registrar mean the office of the registrar, or the human being? That's not specified. It could be that the notification, which must be prompt, would be provided to the registrar's office, and that would not necessarily be confidential.

In reading

section 6(3) where it says, "Information provided under this Act..." it sounds like the information that they're referring to is the information for the purposes of the investigation or of the proceedings, but not necessarily a determination. Information is a much more loose term than the actual determination. Is the determination confidential? If so, it should be specified. That's why I moved that amendment.

Persuasive as the Attorney General may be, I don't see any protection. Everybody has the right to privacy, as this government recognized with one of their acts, and I would like, if anything, to err on the side of caution.

Hon. C. Gabelmann: The member is talking about

section 4(4). There are a limited number of persons who would be notified: the registrar -- the registrar is the registrar as defined in the Private Investigators and Security Agencies Act; that would be one person who is delegated to this, and there would be a confidentiality provision in respect of that person -- and, obviously, the individual, the employer or governing body, and the Minister of Women's Equality if it's child care. This is a very limited set of individuals who get the information. No one else can get it, and no one else can disclose it to anybody else, because they're governed by

section 6(3). So with that, I actually think we have captured what the member wants us to capture, by way of

section 6.

J. Tyabji: Well, one last crack at this, then. As the Attorney General knows, there are many, many acts in this Legislature that specifically allow ministers and public servants to delegate. If I had a situation where I was the subject of a determination, I don't believe I would have any recourse if it turned out that someone other than the human being who needed, I would assume, to be notified under this act were notified, if somewhere within that body there was

an act that allowed any delegation -- the Minister of Women's Equality, for example; that doesn't necessarily mean the minister. I know the Attorney General recognizes that. There are many other acts. That's why I'd be concerned. No caucus is free of leaks, and that becomes the most confidential of bodies, as I'm sure the Attorney General is aware. Even in the political arena, you can't keep things confidential. So in terms of the privilege of the individual person who is the subject of the determination, I think it's important to be more cautious than the way it's written.

Hon. C. Gabelmann: It's a limited list. There's an absolute confidentiality provision. I suspect if anybody violated that confidentiality provision they would no longer have that responsibility, if in fact they still had a job. I would guess that the basic argument here is that it wouldn't be any more strengthened if we used the member's amendment or if we relied on the provision we have included.

J. Dalton: I listened very intently to this discussion. Quite inadvertently, I think the Attorney General is supporting an amendment that I have to come later. At least indirectly, I'm supporting the amendment of the member for Okanagan East. The Attorney General referred the committee to subsection 6(3). We should all note that subsection 6(3) is not an offence against this act, and that's the very subject of my amendment under

section 28. So the Attorney General falls short by telling us that there are some guarantees in subsection 6(3), because there are no guarantees in subsection 6(3). So perhaps the Attorney General will be prepared to entertain and allow my amendment, and at the same time we can take care of the problem of the member for Okanagan East.

Hon. C. Gabelmann: If the member were prescient, he would know that I'm going to accept his amendment when we get to that stage. Therefore we fixed it.

[ Page 16048 ]

Amendment negatived.

J. Tyabji: Under subsection (1), will there be regulations to direct the registrar, and what does it mean when it says: "...with respect to the individual who authorized the criminal record check"? I'm having difficulty understanding that sentence.

Hon. C. Gabelmann: I'm not sure what the member means, because this means simply what it says in front of us. When the registrar receives the request, then the registrar has to carry out a record check in respect of the person for whom it is authorized.

J. Tyabji: I guess the registrar is receiving the criminal-record check authorization from the employer. Is that correct? That's why it's a little confusing, because it says: "...with respect to the individual who authorized the criminal-record check." So we're talking about the employee, rather than the employer. The wording is a little confusing.

I had asked another question: are there going to be regulations governing the registrar?

Hon. C. Gabelmann: The authorization form in question is signed by the employee.

Interjection.

Hon. C. Gabelmann: Right -- or the governing body.

The member is wondering whether there will be regulations or policy around this section. The answer appears to be that there don't need to be any. It's straightforward. Let me just go through the process. An individual will sign a form that they get at work if they are an employee or a prospective employee; if they are in a licensed body they'll get it from within the licensing body. They'll get a registration form, they'll sign it, send it in, the registrar will then do the check and then follow thorough the procedures in the act. So you don't need any regulations; you probably don't even need a policy in respect of this particular section.

[8:00]

J. Weisgerber: I want to ask the Attorney General to come back to the issue we discussed a bit earlier with respect to subsection (2). I read it again rather carefully in light of the minister's comments. It suggests to me that.... Let me read it out:

"If the registrar determines that the individual who is the subject of the criminal record check has an outstanding charge...the registrar must promptly

(

a) refer the matter to an adjudicator..., and

(

b) notify the individual and the employer, governing body or minister referred to in

Part 5, as the case may be, that the individual has an outstanding charge...."

That doesn't at all suggest that the individual is going to be in contact earlier in the process. It says that as soon as the registrar determines that there's an outstanding charge, he must refer to an adjudicator and promptly notify all the persons and institutions listed.

I'm not convinced that the process would see an individual notified first, confirmed by way of fingerprint, etc. That was the specific intent of the amendment which I had introduced and was too easily persuaded to withdraw, I suspect. Having read it again quite carefully while the other debate was going on, I'll listen to what the minister has to say.

Hon. C. Gabelmann: I think that, on the face of it, the member has what seems like a good point, until and unless we know what "determines" means. It is all based on the word "determines" in subsection (2). I'm told that there is a very clear process about what "determines" means that requires, in fact, that at that stage.... Determination cannot happen until after the employee is notified -- because how do you get the employee's fingerprints unless you tell him that this is going on? In order to determine, as is required in subsection (2)....

You require fingerprints before you can move on to be sure that this is the person you're talking about and then notify the employer. I think it's going to be very difficult to get this person's fingerprints without telling him that this is going on.

The flow chart that.... I'll show the member. This is entitled "Criminal-Record Check Process," and it looks a little bit like Snakes and Ladders. What the flow chart says -- this will be the kind of instruction to everybody; this is a document that people who use the system will be following -- is that, in effect, in order for the registrar to determine the individual who is a subject of a criminal-record check, the central agency requests fingerprint verification.

The employee provides fingerprints to the local police, who forward them to Ottawa, the central agency receives the fingerprint results from the RCMP, and then one of two things can happen. First of all, the central agency advises the employer and the employee that no relevant record exists -- no problem. Alternatively, after that, the central agency informs the employer and employee that there is a relevant record and the matter has been forwarded to the adjudicator. In order to get the determination, you have to get the fingerprints, and to get the fingerprints, you're going to have to tell the employee.

I think that deals with the member's concern. If it doesn't, I don't know where we go.

J. Weisgerber: I don't want to try and put too fine a point on this, but I do think it's an important part; it's a kind of protection of privacy of people who may innocently be drawn into this. If, under sub-subsection (b), the word "individual" weren't there, I would be more inclined to accept the minister's argument that there was the presumption that the individual had been notified as part of the determination process.

I think what I'll do, for the sake of simplicity, is move the amendment.

[SECTION 4, in subsection (2)(

b) by adding the following:

(

i) only after reasonable effort has been made to notify the registrar and the individual in question;]

I move that amendment, and then we can deal with it as you wish.

On the amendment.

Hon. C. Gabelmann: I thank the member for doing that, and I'll vote no.

Amendment negatived on division.

J. Tyabji: With respect to subsections (3)(

b) and (3)(c), I'm just wondering.... First, subsection (3) reads: "In making a

[ Page 16049 ]

determination...the adjudicator must consider..." and there are three factors that must be considered. The second one says that what must be considered is "the circumstances...including the age of the individual at the time...and the existence of any extenuating circumstances." Let's start with that. Where did this proviso come from?

Hon. C. Gabelmann: An excellent question. In fact, all three provisos -- (a), (

b) and (c) -- came directly out of a court decision on this very question. The court decision was a 1983 B.C. Supreme Court decision -- McCartney v. Woodward Stores -- involving a decision by Woodward's not to hire on the basis of a criminal record. The court determined that three factors must be considered in determining whether a criminal record relates to an employment decision. The first was whether the behaviour associated with the offence would, if repeated, pose a threat of physical or sexual abuse to children; that's what the wording is in sub-subsection (a). I guess the wording is so similar.... This is a

summary of the court's decision, so the wording in the

summary is almost exactly the same as the wording in the section. The answer is that it came from that court decision.

J. Tyabji: Was the criminal record in the question of McCartney v. Woodward Stores a criminal charge or conviction that related to physical or sexual abuse?

Hon. C. Gabelmann: The issue was, as I understand it, that somebody applied for a job at Woodward's, and there was a determination that there was a theft conviction. Woodward's said they were not going to hire this individual because of the theft conviction. There was an appeal to the Human Rights Council -- it would have been the council at that time -- and they made a determination. That question then went to the Supreme Court, and the Supreme Court made a decision. I'll read what the judge had to say in respect of.... No, this is the board. I'm sorry. This is the Human Rights....

Interjection.

Hon. C. Gabelmann: The court cited and supported the words of the Human Rights Council of the day. The words are as follows -- the board concluded this and the court supported it:

"Whether a charge or a conviction is related to the occupation or employment of a person depends upon all of the circumstances of the individual case, including at least the following:

(1) Does the behaviour for which the charge was laid, if repeated, pose any threat to the employer's ability to carry on its business safely and efficiently?" -- keep in mind this is a theft issue -- "

(2) What were the circumstances of the charge and the particulars of the offence involved? For example, how old was the individual when the events in question occurred, and were there any extenuating circumstances?

(3) How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself?"

It's from that decision of the court that this wording flows.

J. Tyabji: Was one of the reasons for following that court decision so closely that the determination that came out of this process might save harmless an employer if the employer had to take action against an employee?

Hon. C. Gabelmann: The reason for relying on a court-based analysis of what kinds of questions should be asked is that if the

section is challenged by anybody, it's more likely to be sustained.

J. Tyabji: I have to put on the record, then, that while recognizing and supporting the fact that the Attorney General has to make this

section as strong as possible, I found it a little bit offensive. I'm not offended by the Attorney General, but when we're talking about physical or sexual abuse, most of the time we're talking about pedophiles, and to read that there may have been extenuating circumstances.... I'm assuming that the Attorney General will allow a registrar to give more weight to the charge if that charge is something.... Maybe I should back up a little bit.

There are many people who would make the argument that under no circumstances can you ever have an excuse for some of the physical or sexual abuse that may occur. What I would be concerned about is that we've had so many controversial decisions come out recently. Whether it's light sentencing, early parole or repeat dangerous offenders, people are saying: "Please don't take these things into account anymore for the following crimes." At the top of the list are crimes that involve children. I think the Attorney General recognized that in bringing this bill in.

Given the Attorney General's reputation for often championing the kinds of issues that we just spent the afternoon on.... When we talk, for example, about the issue of rape, I know that this Attorney General and this government have often come out -- both when in government and when in opposition -- saying: "There are some things for which there is no excuse. Don't give me any extenuating circumstances; don't tell me what the age was or any other factors." In subsection (

c) they talk about the time elapsed, and I want to get into that in my next question. Could the Attorney General tell me if there's any direction there as far as when there can be relevant extenuating circumstances?

Hon. C. Gabelmann: Ironically, this

section is written in a way that will ensure that the goals the member wants achieved will be achieved. If we had included an absolute prohibition on some kinds of criminal activity without any discretion -- and the member cites pedophilia -- the courts would say that you cannot propose a law that doesn't provide any discretion. So there has to be discretion. We've provided a system in which there is discretion, but the discretion is going to be applied. You walk through the whole process, and all of the standards have to be met.

People who are not pedophiles but who may have been involved in a brawl or something in a bar when they were 21 are going to be judged differently from somebody who has a long record as a pedophile.

You need the discretion for people who, in the adjudicator's view, do not pose a risk. If you were to say that this offence or this set of offences require that there be an absolute prohibition, and there's no discretion, then the history in this country is such that the courts would say that you as a legislature can't do that. There must be some discretion. What we've done is establish a really tight system, so the kind of person the member's talking about would never get through, but people for whom discretion is appropriate may get through, depending on the adjudicator's decision.

[8:15]

J. Tyabji: I guess the last question under subsection (3) is about

section 4(3)(c), where we talk about "the time elapsed

[ Page 16050 ]

since the occurrence of the offence or alleged offence, subsequent actions of the individual, the likelihood of the individual repeating a similar kind of behaviour and any attempts at rehabilitation." The Attorney General has talked about the court decision that gave this.... In the evidence under

section 4(3)(c), where would we be drawing from to put that evidence together? Would it be evidence provided by the individual? Would there have to be some records, for example, to show rehabilitation attempts?

Hon. C. Gabelmann: The information could come from the individual or, if the employer of the individual or the governing body had some information, it could come from there, or it could come from a therapist, a psychiatrist or others who were involved in the rehabilitative exercise.

J. Tyabji: I'm only following the devil's advocate position because the Attorney General laid this out. If it turned out that some evidence hadn't been taken into consideration -- and this is the registrar we're talking about -- would that then leave them open to challenge the weight of that decision because

section 4(3)(

c) is there and because it says specifically, "...including, without restriction..." and then lists items -- in the event, for example, of an individual coming up and saying, "Well, I did see a counsellor three years ago, and that wasn't part of the information taken into account," and therefore the whole determination is invalid?

Hon. C. Gabelmann: First of all, it's the adjudicator who would make this decision, not the registrar. They are obligated to talk to the individual, so the individual has every opportunity to adduce the information. Then if all else fails, following a decision there's an appeal.

J. Tyabji: Under

section 4(4), I note that verbal notice of the determination can be given to the individual. The other night in the Legislature we spent until 10:30 p.m., I think it was, on the Employment Standards Act. I'm just a bit nervous about verbal notice. One of the most contentious parts of the Employment Standards Act, which we actually thought was a good provision, was for documentation to be kept for seven years to save harmless those people who were participating in the process. In the event of it going to an appeal, why would verbal notice be given?

Would there be a written record somewhere, even if that written record hadn't been provided? If there is a written record, for example, does the adjudicator have a written record even if they don't necessarily give it over? If they do, do they have a provision to hold on to it for roughly seven years?

Hon. C. Gabelmann: All the regular rules in respect of keeping documents apply; it's a seven-year provision under the Document Disposal Act, and that applies.

The Chair: Shall

section 4 pass? The member for West Vancouver-Capilano.

J. Dalton: Sorry. Thank you, hon. Chair. I'm just juggling lots of paper around here tonight. It seems we have a bit of an avalanche of it.

I have two points I want to make. First, I'm a bit troubled by the word "behaviour" in

section 4(3)(a). The case that the Attorney General cited, which was helpful, McCartney and Woodward Stores.... Of course, the behaviour would have been evidenced before the court in that case, but with a criminal-record search, the adjudicator will not know the behaviour of such that led to the conviction. For example -- and let's just take a hypothetical example, at least -- I am troubled as to why trespassing at night is on the list of offences. We don't know what behaviour led to the conviction of trespassing at night. It might have nothing to do with threats to children. So behaviour, I think, is an important point of the exercise.

Hon. C. Gabelmann: The adjudicator very much will know the behaviour, because of the transcript of the trial and the information around it. If necessary, presumably they can talk to the prosecutor or others who were involved. But the records are something that the adjudicator would have to consider. Trespass by night, in lay language, is peeping Toms, I understand.

Interjection.

Hon. C. Gabelmann: I'll let that one go.

J. Dalton: That's fair enough, and I appreciate that. But then the adjudicator or whoever is going to have to do a lot of reading. The Attorney General talked about taking two years to phase this in; we may be talking about two decades to phase it in.

The other point I want to ask about under subsection (2) is the outstanding charge that's referenced there. Has the Attorney General a legal opinion as to whether the presumption of innocence in the Charter of Rights is in any way compromised by someone with an outstanding charge? Keeping in mind it's pending only, there's been no trial and no conviction, has there been a legal opinion to substantiate whether that will stand a test?

Hon. C. Gabelmann: There has, for sure.

Section 4 approved.

section 5.

J. Tyabji: I'd like to amend subsection (1). The reason I would like to do that is that I think the wording is subject to possible misunderstanding, at least as we go further down in the section. So I would move to amend subsection (1) by repealing the words "on which the adjudicator notifies the individual" and replacing them with the words "on which the individual is served with notice." The

section would then read: "The individual who is the subject of a criminal record check may appeal the determination of the adjudicator under

section 4 by serving the registrar with notice in writing within 14 days of the day on which the individual is served with notice of the determination." The reason that I would put that there is that obviously there's a difference in terms of notice. Notice could be a message left on the answering machine or it could be something in the mail.

Interjection.

J. Tyabji: The Attorney General is saying no. As far as I understood it, unless someone is actually served or the word

[ Page 16051 ]

"served" is used, then you don't have to have any verification that the person has been notified.

Hon. C. Gabelmann: I understand the member's problem. I have the advantage that she doesn't. I know what the policy is and will be, and all of the rules around which the act will be governed. The notice must be in writing. It doesn't say that in the legislation. It can't be served verbally, it can't be served by way of a message on the telephone answering machine, it has to be served in writing.

J. Tyabji: Taking the Attorney General at his word that there will be service and it will be in writing, that's the intent of the amendment. So I can withdraw the amendment.

My second amendment is to amend subsection (3) by adding underneath "(

b) convene a hearing" the words: "with due consideration to the nature and grounds of the request by the individual for the appeal." The reason I put that in there is that in subsection (6) the Attorney General has given the appeal panel liberty to determine its own procedures, whether or not they receive or accept evidence and whether or not it would be admissible in a court of law. Obviously we want to give the appeal panel as much power as possible. However, under subsection (3), it says: "On an appeal...the appeal panel must review the adjudicator's determination and any records on which it was based and may, but need not, do one or both of the following in conducting the review: (

a) request additional information...convene a hearing."

It would seem to me that if an individual who received a determination felt that there needed to be an appeal, and if that were not a frivolous appeal, then there would be some grounds for that. If there are grounds for that appeal, then there should be something.... It doesn't have to mean that the appeal tribunal or panel is compelled to have a hearing or is compelled to receive evidence; but they should be compelled to take into consideration the nature and grounds of the request for the appeal.

Otherwise we could end up with an appeal process where the appeal panel simply reviews what the adjudicator already reviewed and doesn't take anything new into account, and the person would still feel aggrieved at the end of it. So it's almost a form of protection.

On the amendment.

Hon. C. Gabelmann: Everything the member has said is right. It is supported by us and is in the policy, although the policy is still being developed. There were a huge number of issues of this kind -- many more than we will even note tonight. If you wanted to make the statute this thick, we could have put it all in here. That's going to be in the policy. What the member is talking about is natural justice. If we didn't do that, it would end up getting thrown out of court in any event.

All principles of natural justice and all of the precedents that have been established in the courts over these kinds of questions in the past will all be followed in the policy, because if we don't, it will be thrown out, and it will be a waste of time on our part. The member's concerns are valid and are being looked after in the way the act will be implemented.

J. Tyabji: I request that the Attorney General review the Hansard from about ten minutes ago, where I was asking about regulations governing the registrar. He said at that point that there wouldn't be regulations; in fact, there might not even need to be a policy....

Interjection.

J. Tyabji: He's asking if it's in that section.... So there will be policy accompanying these other sections and, I assume, some regulations. Well, that's reassuring.

Having said that, I want the amendment to stand, because I would rather see legislative protection for the appeal process than just a policy initiative, especially when we can't review the policy initiative. I appreciate that the Attorney General says that policy might support this, but I can't read that in the bill.

Amendment negatived on division.

J. Tyabji: The third amendment actually.... I am still having a hard time seeing how

section 6(3) covers the confidentiality provision, notwithstanding that there will be an amendment to make it an offence. Maybe I would be reluctant to move this amendment if the Attorney General would add the words "or determination" after the word "information" in the next section. Then I wouldn't have to move the amendment in this section.

I'm saying that because it says.... What I was going to move as an amendment to

section 5 was another provision for confidentiality in notice or in the written determination.

Section 6, which the Attorney General is going to tell me takes care of my concern.... The subsection he's talking about says "information provided," and I would rather have it say "information provided or a determination reached under this act." That's something that specifies beyond information, because information is not the same. I'd like to hear from the Attorney General before moving that amendment. If we can't agree on

section 6, then I'll move the amendment in

section 5.

Hon. C. Gabelmann: I would, in the first instance, agree with the member that "information" seems broad and doesn't seem to include the determination. But if the member goes back up to the top of 6 and looks at 6(1), it says: "The following persons must provide any records that an adjudicator or appeal panel may, by order, require...." What we're talking about there are specific records. The member may think that these specific records don't include the decision, but I don't know how you could read that into it.

J. Tyabji: Rather than debate

section 6, I'll move the amendment in

section 5. I would like to move an amendment to add subsection (9), which would read: "Notification under subsection (7) and written determination under subsection (8) shall be in confidence and shall remain confidential unless their contents are released under the provisions of another Act or under the provisions of another

section of this Act." I recognize that there's not a lot of hope that that amendment is going to succeed. We'll come back to the reasons for it in

section 6.

Amendment negatived on division.

J. Tyabji: Could the Attorney General explain

section 5(6)? "The appeal panel may determine its own procedures and may receive or accept evidence whether or not it would be admissible in a court of law." Will there will be policy that will accompany that?

Hon. C. Gabelmann: The courts have very high standards of rules of procedure and rules of evidence. In this

[ Page 16052 ]

hearing you're not bound by those strict rules. This is a normal kind of provision for boards or adjudicative panels that are, in a sense, at least a step lower than the court system.

[8:30]

J. Tyabji: There was a second part to my question: whether or not there has been policy developed to accompany this.

Hon. C. Gabelmann: There will be policies and procedures around this section. I think they will be done together with the appeal panel. In other words, the ministry and the panel will be working together on that.

J. Tyabji: Who will be sitting on the appeal panel? These will be people who will be appointed by the Lieutenant-Governor-in-Council. Where will we be drawing these people from?

Hon. C. Gabelmann: There are no final decisions on what the appeal panel will look like, but the appointments will.... What we're thinking about at this stage -- and I'll just share this with the House -- is that one of the three members would come from an appointment by the Attorney General; one would come from an appointment by the Human Rights Commission, I guess, if that legislation goes through; and the third one would be a nominee of a group that was affected, where the employee came from. In other words, if the person was a doctor, then the College of Physicians and Surgeons' nominee would be the third panel member in that case.

J. Tyabji: I'm not sure if I'm in order asking this, but I didn't ask it in the other sections. Where would we be drawing the adjudicator or the registrar from? Perhaps we could talk about that.

That sounds like an excellent model, by the way, for the appeal panel. I think it could be very effective in coming to a fair determination.

Hon. C. Gabelmann: I started asking some more questions here, and I think I've lost some of the member's questions. The adjudicator would be appointed by the Attorney General but would not be a public servant. He or she would be at arm's length from government, independent from government -- keeping in mind that in this first phase, at least, we're talking about people who are funded or employed by government. We're going to keep a separation in that respect. I think the member had another question.

The registrar is a public servant. The registrar is the person who is, coincidentally, the chief firearms officer, the person who is in charge of the private investigators and securities branch -- or whatever it's called exactly -- in the ministry.

J. Dalton: I think it's appropriate that I just make one observation. I did comment yesterday about concerns that David Flaherty had about this legislation. I think they are relevant to subsection (6) in particular. The Attorney did talk about natural justice, but he also said that we don't have any policy in place yet. The concern of Mr. Flaherty would certainly in

part impact on this particular

section and subsection: "This breadth is excessive and represents a substantial intrusion into the private lives and identities of individuals who have no regular contact with children." That's a direct quotation from David Flaherty, the privacy commissioner.

Putting aside whether he should or should not be dragged into this debate, I just want to flag again and offer a word of caution that we are getting into some potentially very dangerous territory here. I'm fully aware of the tremendous need for legislation like this, but I am very concerned that we may be putting something in place that perhaps is a monster, which we've set loose and over which we may have no control.

Hon. C. Gabelmann: In fact, this legislation is a cage for the monster. Criminal-record checks are conducted now in many situations without the privacy protections that are afforded in this legislation -- without all the securities and guarantees and without all the natural-justice provisions that we have established in the legislation. So this isn't the unleashing of a monster; this is the caging of a monster.

I might say, in addition to that, that I met with the freedom-of-information commissioner. He also met, I understand, at least once and probably more with members of my staff. We came to a meeting of the minds on most issues that he was initially concerned about. He may still have some concerns; that is his right. But I would remind him and the member that this Legislature is supreme.

Section 5 approved.

section 6.

J. Tyabji:

Section 6 is what we were waiting for. With respect to subsection (1), the Attorney General made a reference to the fact that the records that an adjudicator or appeal panel might require would also be part of the information under subsection (3), which we've been talking about in advance of this section, to protect the confidentiality of the people who are subject to this investigation. I'm not sure that I think that the records or the information represents the determination.

I would like to discuss this just for a few minutes, because when we're talking about a determination, it would obviously be something that automatically has to be disclosed under sections 4 and 5 to certain individuals. Subsection (3) only says that it cannot be used or disclosed for any purpose other than the purpose set out in

section 2. Well, we already know that there will be disclosure of the determination under sections 4 and 5. How is it possible that the Attorney General has argued that subsection (3) protects confidentiality, and yet right away, when we talk about the determination, there is no reference to sections 4 and 5 being exempted under subsection (3)? Does that make sense? I could try a different angle.

Hon. C. Gabelmann: Unless I misunderstand the member, the purpose of the act is general, and sections 4 and 5 are part of the purpose of the act -- are covered by it. So in

section 6, they can't be disclosed other than the purpose.... I mean, it covers those other sections.

I'm not explaining this very well. It may be these long days and long nights. But clearly.... No, I'm just going to sit down and ask the member to try once more to explain to me

[ Page 16053 ]

what she's saying, because I don't understand why she doesn't think that all of the information, all of the records, all of the documents wouldn't be guaranteed to be private and confidential.

J. Tyabji: I guess because there are three different words being used here: "records," "information" and "determination." We treat the word "determination" differently than "records," because the records lead to the determination. And it says, "Information provided," so we're saying that the information provided -- for example, records -- will not be disclosed, except for the purpose set out in

section 2.

If the Attorney General is saying that under

section 2, which is very general, disclosure is allowed, then I'm not sure how we can limit disclosure. In that case, I would be concerned beyond sections 4 and 5, because it would almost seem that provided that somebody could justify disclosure -- because they believe that disclosure will help prevent abuse -- then any disclosure would be warranted. It almost makes me more nervous to say that

section 2, which is general, captures sections 4 and 5.

Hon. C. Gabelmann: The intent and, I believe, the effect of this legislation is to protect all of that information. The information in sub (3), "Information provided," includes the determination. If there is any doubt about it, these words are on record in Hansard, and if there is any confusion about it in the future, this is a source. If that doesn't work, then we'll surely be back with appropriate amendments. But I don't believe they are necessary at all.

J. Tyabji: Then a last question.... That's reassuring, and that is one reason why we have these long, yackety-yackety-yack debates.

Under subsection (2), could the Attorney General tell me, then, if there could be almost any disclosure -- provided that disclosure would help prevent the physical or sexual abuse of children -- could other disclosures occur that aren't mentioned in this act, if they seem consistent with the purpose

section of the bill?

Hon. C. Gabelmann: The answer is no.

Section 6 approved.

section 7.

J. Tyabji: In sub-subsections (1)(

b) and (1)(

c) we see a couple of exemptions: post-secondary institutions and municipalities or their employees. I know that the member for West Vancouver-Capilano asked about municipalities. The Attorney General at that time said they have the capacity to do their own criminal-record checks, and it's just a numbers game at this point because we're so new.

Why post-secondary institutions? Is that because they don't deal with children?

Hon. C. Gabelmann: The decision to exempt post-secondary institutions was because of the very small number of students who are under the age of 19.

Sections 7 to 9 inclusive approved.

section 10.

J. Tyabji: Just some points of clarification here. We see that there's a process, and the Attorney General could help me through this. We have a time when a criminal-record check or the authorization is requested. Let's say, for the purposes of this discussion, that an employer says to an employee or potential employee: "I need your authorization to conduct a criminal-record check." The employee or potential employee says: "Here it is." At that moment -- let's say it's a Monday, and the job starts on the Tuesday -- they've requested the authorization, and it has been given.

Does the employer then hire the employee for the job that starts the next day? Or do they have to wait until the rest of the provisions of the bill start to kick in, about the return of information from the criminal-record check?

Hon. C. Gabelmann: The member isn't really asking about

section 10, because that's existing employees.

J. Tyabji: Well, agreeing to that....

Hon. C. Gabelmann: Okay. The employer can hire conditionally, yes, as long as the authorization has been signed by the potential employee.

J. Tyabji: Now we're talking about existing employees. If you are an employee and there has been no reporting back of.... I guess the Attorney General is saying that we're talking about employees who exist right now, under this

section of act. Okay. Well, I can deal with that as well. It's basically the same questions. Let's deal with the existing employees, then.

As of now, an employer asks an existing employee for authorization. They continue to be an employee. Then they get the first determination back. If that determination comes up negative, meaning that there's a problem, then we see two possible provisions. The employee must not work with children until there's an authorization.

But they may have given that authorization. So they can still work with children, because there's nothing there. Under this

section of the act, the employee can continue to work with children -- even if they have a criminal record -- until such time as there's a determination or the adjudicator gets back to the employer. Is that correct?

It's very difficult to ask these questions without dealing with several sections at once. If that's okay with the Attorney General, then, what I'm trying to ask is.... I want to get into the employment standards side of things.

There are two scenarios. There are people who aren't employees yet, and they say yes. The Attorney General said they can be provisional employees. I'm assuming the word "provisional" is to save harmless the employer, in the event of the adjudication saying there's a problem. The Attorney General is nodding. Okay.

There's an existing employee as well. The existing employee gives the authorization, and then that comes out negative as well. There's also an appeal process that kicks in. So the determination, I assume, goes into limbo during the appeal process, even if there may be an assessment of risk. Is that correct? Or if there is an assessment of risk, is that employee automatically removed until an appeal panel clears that employee? And if that's true, is that legal?

[ Page 16054 ]

[8:45]

Hon. C. Gabelmann: If between the authorization signature and the final determination there is an assessment of risk, then it's the employer's responsibility to ensure that that employee is working in a situation in which he or she is not involved in a position of trust with children, pending the outcome.

J. Tyabji: When the Attorney General says, "pending the outcome," he's talking about the outcome of an appeal if an appeal is launched. Is that correct?

Hon. C. Gabelmann: Yes.

J. Tyabji: In the event of the employer, if it's a small business.... I don't think this is the

section dealing with child care, but I am sure that this

section would deal with instances where there would be a small company, and the employer may not have a choice of either laying off the employee pending the outcome of the appeal or violating the

section of this act that says that the employee may not be working with children.

Hon. C. Gabelmann: The member described a small business. Let me be more specific and suggest it's a family day care, where the only employment is in fact.... Family day care is probably not a good example, because it may not have other employees. Let's say it's a situation where the only work available is in a position of trust with children. In that event the employer cannot comply by moving the employee into another part of the business, because there isn't another part of the business. This act requires that the employee not continue to work with children in that situation if there's a risk assessment pending adjudication.

J. Tyabji: Because we're dealing with

section 10, which is existing employees, let's assume that an employee has been employed for five years at this business and now there's been a risk assessment. Under this act, the employee is basically not permitted to be with children, and everyone would say: "We must err on the side of caution." I'm talking about legal technicalities here, not where I'm at emotionally. So the employee must remove himself or herself from that care of children pending the outcome of the appeal. I didn't see a time provision in the appeal, and maybe the Attorney General would want to speak to that.

If the employee has removed himself or herself, could that employee launch a grievance under the Labour Relations Board, not necessarily for wrongful dismissal but for a history of care -- for example, the five years of work record without a complaint or problem -- taking precedence over an interim determination?

Hon. C. Gabelmann: If there's a collective agreement in place, then we're dealing with what's in the collective agreement. If there isn't, then it's under the Employment Standards Act. In either event, this act supersedes. It's a condition of employment. I want to make sure the member understands what I'm saying. The condition of employment in which an employee would be working in a position of trust with a child is that they have in fact gone through this process and have been deemed to be in a position where there's no problem in their working with a child.

They can't then file a grievance under the collective agreement, and they can't then file a complaint with the Employment Standards Board. They could file it, but it wouldn't go anywhere.

J. Tyabji: So the Attorney General is saying that they would be in non-compliance with this act, so their grievance wouldn't go anywhere. What would happen if the appeal were in favour of the employee and that employee had been removed from work for that interim period pending the outcome?

Hon. C. Gabelmann: I would suspect that where there are collective agreements in place, if provisions are not already in place for leave with pay, that will end up being on the negotiating list on the part of the union. In fact, if that interregnum happens and there is, in effect, a suspension from work because there isn't any alternative work available, and that period lasts for a while before the final appeal decision is rendered.... For teachers, for example, it's my understanding that in many cases -- I don't know whether it's in every school district, but we're moving to a centralized system now, so it will be determined there -- they would be suspended, in effect, with pay.

Under the Employment Standards Act, I suspect that.... I used to know this stuff, but I'm not current with employment standards stuff anymore, and I don't know what the provision is there. I doubt very much whether there is a suspension-with-pay provision there, but there could be in a collective agreement situation. Many of these people, of course, are self-employed, such as a doctor, dentist or other person who's working under a self-governing profession. They would just have to restrict their practice to adults.

J. Tyabji: It is getting late, and I'm trying to keep my train of thought focused.

All right. The question I was going to ask is: if someone was in that situation, what if it took a year, which is conceivable with 280,000 criminal-record checks? There could be, let's say, 1 percent that come out positive. I have no idea if that's conservative or an exaggerated amount, but if 1 percent come out positive, we're still dealing with -- what would that be? -- 2,800? Someone who's better at math had better help me out with this. We'd be dealing with a large number of people who would come out with a positive determination. So then, all of a sudden you've got this flooding of determinations. The Attorney General is saying no, so he might want to clarify that.

Hon. C. Gabelmann: Out of the 280,000 individuals, there is an expectation that there will be some 450 individuals who would require adjudication per year, so.... I'm sorry. I shouldn't have said out of 280,000; I should have said out of the 140,000, or it would be a bit less than that the first year, I guess. But there would be in the order of 450 adjudications out of 140,000, let's say. And out of that number -- who knows? I'm always amazed when I'm provided with predictions of how many events are going to occur. But the suggestion is that there would be -- I'm going to say this with some trepidation....

This is going to be worse than I thought. I was going to say nine appeals, but actually it's going to be 9.3. There is a basis for saying this, and it has to do with Ministry of Health statistics, where they have had this kind of experience.

J. Tyabji: So roughly 9.3 people will be going through an appeal process in a year. Okay. So that will not be an incredible backlog for the appeals panel.

[ Page 16055 ]

Interjection.

J. Tyabji: All right. So we could have all nine appeals running concurrently. If we've got these existing employees, such as a teacher who has had to take a year off with pay, and that person is one of the nine who is under appeal, what would be the reasonable expectation for that appeal reporting out? And if the report exonerates that teacher, then I have another question.

Hon. C. Gabelmann: I'm going to try this on; I don't know whether I believe it myself. But it is two or three weeks we're talking about; we're not talking about an exhaustive process. There is a limited amount of information.

The reason I smiled in giving that answer is that I've got a lot of experience with labour relations arbitrations, and while the arbitration might take a day and a half, it sometimes takes two years to set up. We are designing a system that, hopefully -- and I'm going to make sure that feet are held to the fire on this -- doesn't have undue delays in it. The answer is -- the expectation is -- that these appeal processes will be a matter of weeks.

J. Tyabji: The last question, then. If it turns out that one or two of these people are exonerated by the appeal, what is the provision for redress for damage to reputation or anything that may have occurred because they were implicated by the first determination?

Hon. C. Gabelmann: There would always be a civil remedy. They could go to court and file for damages against someone or other, or a whole bunch of people, but that's the only remedy.

J. Tyabji: Who would they be suing?

Hon. C. Gabelmann: A whole bunch of us, I guess. It depends on what their lawyer advises them as to the most effective remedy. That's out of my hands.

Section 10 approved.

section 11.

J. Tyabji: I wanted to move an amendment to

section 11 in order to protect the employers. The employers obviously have certain prescribed actions under this act. If we're talking about the existing employees, we could have an employer who, because of this act, has to take certain actions. I would like to make sure that they're protected by adding subsection (c).

[SECTION 11, by adding subsection (c)

"if the effect of the finding of risk of physical or sexual abuse, and the prevention of the employee working with children results in the loss of the employee's employment, the employer shall be saved harmless from wrongful dismissal charges."]

That goes to the debate that we've had in the previous

section about whether or not the employer would be on the line for wrongful dismissal or, for example, for reputation damage.

On the amendment.

J. Weisgerber: I'd like to stand in support of the amendment as put forward by the member for Okanagan East. The essence of it is the same as the amendment that I was proposing, so rather than deal with two amendments, let me just stand and speak in support of this one. That will help us perhaps move forward a bit more quickly.

Hon. C. Gabelmann: Employers make employment decisions all the time -- hiring, firing, discipline, whatever -- and there's no immunity built in anywhere for the employer in any statute. The question is: why would there be any specific additional immunity in this particular case? If they're following the law in good faith, they are not going to be liable; there's no liability. Just to give the member some comfort, there was extensive discussion about this issue to be sure that employers would not be put in an adverse position because of this.

The conclusion -- the legal advice on this -- was clear: if there's good faith, there's no liability. Why, in any event, would you provide a special status for this particular piece of legislation?

J. Tyabji: I think the answer to why you would is fairly clear. It's because the government has prescribed in this bill, in

section 10, that the employee shall not work with children until they have provided authorization. Certainly, if there's a chance of risk, the employee does not work with children, under this section. The employer doesn't have any choice.

It could be a small employer. When the Attorney General says that if they have acted in good faith there wouldn't be a finding against them, that doesn't matter very much if you're a small employer and litigation proceeds -- which could happen. It could be two years before the employer would be exonerated. If the amendment were accepted, a motion against the employer would not be accepted by the court registry, because the act is specific and says they shall be saved harmless. So you couldn't even file a motion. How could you? Under

section 11 they're saved harmless. If there's no reference to it, a motion could be filed, there could be litigation and a couple of years of pleadings could be involved. If that happens, then it doesn't matter much to the employer if they get off the hook at the end, because they could have spent $20,000 or $30,000 complying with the bill.

[9:00]

Hon. C. Gabelmann: The argument was canvassed thoroughly, including at the political level, to be sure that the legal advice was correct. The conclusion was that there's no legal reason to do this. It sounds good, and it might make employers feel better, but there is no legal reason to do it. If employers are acting in good faith, there's not going to be a cause of action.

J. Dalton: On a point of clarification, can the Attorney General advise the committee as to whether, with this line of reasoning, it would be statutorily possible to deprive an employee of a civil cause of action -- which would be, of course, wrongful dismissal? I have every sympathy for what the member for Okanagan East has raised, but I don't think we could trample on the rights of the employee in this way.

Hon. C. Gabelmann: The member makes a good point. What we've decided to do in not following the course of action that, as I say again, we seriously considered, is allow the normal course of the law, the way it applies generally, to continue to apply here. I think the member makes one of the arguments against the amendment.

[ Page 16056 ]

J. Tyabji: I just want to make this point on the record. I'm not speaking against lawyers in any way, shape or form, but they don't tend to mind if there's a litigated loophole in a bill. I think the member for West Vancouver-Capilano talked about whether or not we could deprive an employee of a civil suit.

That notwithstanding, I think that if we can put something in there to protect the employer, then the onus is really on the government to do that, because the government has left the responsibility and full accountability with the employer to remove the employee from the children. I think that, given the fact that this government has brought in some very strict employment standards.... We have the Labour Code and so much protection for employees out there, and not really that much for employers who may wish to exercise their right.

If they feel they have no choice, they might say: "Well, this employee can't work with children, according to this act. I have to let this employee go." The employer may end up being on the hook either way. It's like a catch-22. If they're in non-compliance with the act, the government will be upset; if they're in compliance with the act, they could end up with a lawsuit by the employee. Even though they might not have a finding against them at the end of it, I know of many cases where there has been frivolous litigation, and it's very expensive. I think the amendment is a good idea.

Hon. C. Gabelmann: I think we have just about exhausted this topic. I will simply say again that employers cannot be held liable for following the law.

Amendment negatived on division.

Section 11 approved.

section 12.

Hon. C. Gabelmann: I move the amendment to

section 12 that has been distributed and is in the hands of the Clerk:

[SECTION 12, by deleting the proposed subsections (2) and (3) and substituting the following:

(2) When an employer becomes aware that an employee who works with children has an outstanding charge for, or has been convicted of, a relevant offence, the employer must require the employee to provide a criminal record check authorization for a further criminal record check.

(3) If an employee is also a registered member, the employer must take reasonable steps to notify the registered member's governing body that it is taking action under subsection (2).]

This is a technical amendment which, in effect, reverses subsections (2) and (3) and puts them in the opposite order to what they're in now.

Amendment approved.

section 12 as amended.

J. Dalton: I have a question about this process. We're dealing now with someone who is employed, and a subsequent record check may be required. Would I be correct in presuming that those people would have to be placed in a situation where they would not be working with children? The

section is silent on that point,

whereas the previous sections all address the issue about the employer ensuring that employees do not work with children.

The point I'm making is: someone is in the course of employment and then a subsequent offence occurs, or a subsequent conviction, yet this

section does not address the issue of working with children under those circumstances.

Hon. C. Gabelmann: I'm not absolutely sure that I follow the member completely, but what we have here.... Let's see if this does it. If someone who is an employee, and continues to be an employee, is then charged with a relevant offence -- one that is listed on the

schedule -- they then have to go through the full procedure and there needs to be a risk assessment as if it were a new check.

Section 12 as amended approved.

section 13.

J. Tyabji: Subsection (2) says: "The governing body must inform individuals of the requirements of this Act...." I wonder why the Attorney General wouldn't have said "the requirements and purposes." The reason I ask is that if there has been one criticism that has come out against this bill.... The member for West Vancouver-Capilano alluded to the information and privacy commissioner coming out and saying that he wasn't sure of the reasons for all the criminal record checks, and to look at all the people who aren't involved with children. Given the schedules that are attached to this bill, I would have hoped....

Perhaps "requirements" includes the purposes; I just don't read it that way. I think it would make it a lot easier if people understood that what they're doing is in the best interests of children.

Hon. C. Gabelmann: I actually think it's the government's responsibility to provide the educational information around this issue to tell people what the purposes are. We don't want to make the employer's or the governing body's responsibilities more onerous than they already are. We're trying to keep this as hassle-free for employers as we can, so we're simply saying to them in this

section that they have to ensure that everybody is registered and that every individual undergoes a check -- that's obvious for the governing body -- and then the same governing body has to inform individuals of the requirements -- in effect, giving them the form and the rules about what they have to do. They are inevitably going to include the information that we provide -- the brochures about the process, the reasons, the purposes and all of that. I think that will just happen automatically.

Sections 13 and 14 approved.

section 15.

J. Tyabji: We have talked a bit about civil rights in this debate, and I'm just wondering, when we talk about this, especially when we're talking about governing bodies for professions, to what extent the issue of the collective civil rights of a professional body was explored before this

section was brought into effect. I'm talking about whether or not, if there's a determination -- or in that interim period, again, if someone is affected by that -- the government explored at all the civil rights implications of having somebody impacted by a decision prior to a final determination of whether or not they were -- I'll use the word -- "guilty" of providing risk.

Hon. C. Gabelmann: The exhaustive consultation that occurred in developing this legislation included exhaustive

[ Page 16057 ]

consultation with the governing bodies. So they know what they have to do, and that whole process has been worked out. I don't think it's fair to say that everybody is jumping for joy about having to do this, but everybody accepts that this is the reality and they are working with it, and working out the procedures they need to do. They're doing it in a very cooperative way.

Section 15 approved.

section 16.

J. Tyabji: I note that in

section 16, we have the title "Effect of finding of risk," similar to

section 11 in

part 3, where there is the title "Effect of finding of risk," but the language is very different. I guess one question is: why is this language different from

section 11, where there is a recommendation for appropriate action taken by the governing body? What is appropriate action? To what extent would it have to comply with the intent of

section 11, which actually says that the person shall not work with children if there's an assessment of risk? Does the governing body have to comply with that same intent?

Hon. C. Gabelmann: The answer is really clear on this. The employer has a direct relationship with the employee, can direct where the employee works or doesn't work, and the governing body doesn't have that kind of control over their members.

For example, let's take -- not to pick on them -- the College of Physicians and Surgeons working in Vancouver with a doctor in Pouce Coupe. They don't have the same kind of controls, so we need different provisions there to ensure that this is being adhered to.

J. Tyabji: Well, I'm assuming, if we use that example, that the doctor is the employer and employee in that case, because a doctor is self-employed. What is the appropriate action that the governing body would have to take?

Hon. C. Gabelmann: Following an investigation, the college could suspend the licence if a person who was not supposed to be working with children, in fact, continued to work with children. That person would no longer be able to practise medicine, in that particular example.

Interjection.

Hon. C. Gabelmann: I don't think it matters whether it's an employer or employee situation here. We're talking about licensed.... It gets confusing. Some doctors are employees; they might work in a clinic and may be an employee of the clinic, or they may work for the government in some cases, or whatever. I think the thing to think about with this is not to use the employer.... Don't think about employer-employee relations when you're thinking about the licensed governing bodies.

We're talking about a mechanism to ensure that somebody who is licensed and violates the conditions of this legislation can, in fact, be governed. An employer in that situation can easily do it, and they're required to do it. It's a little more complicated than a governing body situation, but they can follow this and do an investigation and then, theoretically, suspend the licence.

J. Tyabji: Would it be mandatory under this section, if the determination is that there's a risk, for the governing body to ensure that that member did not have contact in their employment, whether they're self-employed or employed by the clinic? Is that automatically part of the appropriate action? If so, is it through the policy that accompanies this bill?

Hon. C. Gabelmann: The governing body, at this stage the member talks about, would be required to conduct a hearing. It's possible that one of the outcomes of the hearing could be that signs would be posted in the office where the professional works, indicating that his practice is limited in the following way as the result of this legislation. In other words, the signs are saying that this professional is not entitled under his or her licence to work with children. So that kind of evidence would be there and would be available to potential clients.

J. Tyabji: I think it's my last question under this section. If it turned out that, as the Attorney General outlined, there was a posting of a limited licence, and the individual who was restricted by that licence went beyond the scope of that licence and the governing body refused to take action, what would the course of the Attorney General be?

Hon. C. Gabelmann: I think the likely outcome would be a liability issue on the governing body. There would be a civil remedy for a.... Let's say what happens is that the governing body doesn't protect the patients or clients, and somebody goes in and something bad happens. Then there's a civil remedy against the governing body, and it could be substantial.

[9:15]

Section 16 approved.

section 17.

J. Tyabji: A quick question: why wasn't it included that if you don't comply with

section 17, it would become an offence?

Hon. C. Gabelmann: That goes to

section 28 -- all four of those subsections are included if you look at both sections 28(1) and 28(2).

Sections 17 and 18 approved.

section 19.

J. Dalton: This is an interesting section. What consequence results if the minister does not comply with this section?

Hon. C. Gabelmann: I was going to use unparliamentary language; I can't think of a parliamentary way to say this. The light answer is to say that the minister could never do anything wrong. The more serious way of putting that is that the Crown.... This is the Crown, and the Crown doesn't commit offences. If you want to believe that....

I'm being silly; it's that time of the night. The fact is that in all statutory language you never, ever have an offence provision against the Crown.

[ Page 16058 ]

Interjection.

Hon. C. Gabelmann: No, I don't think it's that. This is the Crown, not the members.

Sections 19 and 20 approved.

section 21.

J. Tyabji: I'm just interested in how this would actually work. I'm assuming that there first has to be a request made to an existing child care provider before they can be deemed to be in non-compliance. An important question: if they don't know that this provision exists, how do they comply? So the minister has to ask them first.

Interjection.

J. Tyabji: Is there going to be policy or some sort of guidelines to follow this section? I'd just be concerned, for example, how we would interpret a child care provider who has not provided the authorization. I don't know how the minister notifies them -- whether they notify each of them individually, which would be preferable, or whether it's done in a mailout to their local association, which would not be that good -- and what the time frame would be for them to respond.

Hon. C. Gabelmann: These groups are all registered with the Ministry of Women's Equality, and they would get a mailing individually.

Section 21 approved.

section 22.

J. Tyabji: I'm very curious about subsection (2), which says:

"The minister must inform the police force responsible for policing the area in which the facility is located, if the minister believes that an individual who was determined to present a risk of physical or sexual abuse to children is continuing to operate a child care facility."

That's an excellent provision. It seems to be the harshest language in the bill. Was there freedom to bring that in because it was the minister taking action, and we couldn't have such strong language in the other sections because we dealt with governing bodies and employers, or was it just because we're dealing specifically with a child care facility that the Attorney General chose to use such strong language?

Hon. C. Gabelmann: We're talking about facilities here in which there are not employer-employee relationships. It's almost an ad hoc kind of situation. It's somebody's home; they're registered. If in fact they're deregistered by the ministry because of a concern about somebody who shouldn't be having kids in their home, the deregistration doesn't accomplish anything. The person who's doing it could continue. At that point, the minister would just tell the police. In this case, the minister is the Minister of Women's Equality or her delegated person -- in other words, a worker in the field. That's really what it's all about. There is nobody to hold accountable in that situation.

J. Tyabji: Same kind of question, then.... A determination has been made, the person has appealed and the grounds for appeal are that the determination is baseless. Is the child care facility shut down in the interim?

Hon. C. Gabelmann: The answer is yes. I answered that question earlier in a different way. If the only thing they're doing is working with children, and there's a risk assessment, as it's worded here, then it shuts down pending the outcome.

Sections 22 to 24 inclusive approved.

section 25.

J. Tyabji: I'm not sure what the qualifications will be for adjudicators. Could the Attorney General let us know what that would be?

Hon. C. Gabelmann: The member won't like this answer, but the first thing they'll need to have is a law degree and legal training. They'll get training at the JI -- the Justice Institute -- through the Council of Human Rights and other appropriate training areas. A protocol around all of this will develop in the ministry internally to make sure that the adjudicators are, in fact, well qualified to handle this role. The last thing we want is to have all of the adjudicators do it wrong and have a huge appeal problem.

J. Tyabji: I just have to respond on the record that I have many lawyers in my family; I don't automatically dislike lawyers. Just so I don't have lawyers phoning me afterwards, it's now on the record.

Section 25 approved.

section 26.

J. Dalton: I'm curious about why, under

section 26(b), it's possible that a Member of the Legislative Assembly might be an adjudicator or a member of an appeal panel. That doesn't seem right to me.

Hon. C. Gabelmann: May I use the words "out of an abundance of caution" should there be a decision at some point that an MLA should be an adjudicator? I have to tell members that I don't envision the situation of having an MLA involved in this kind of provision. In drafting legislation, whenever there's a possibility of an MLA doing something, there has to be an assurance that they won't get paid. This comes in in a backwards way. It's just to prevent an MLA from taking money for this position. I have no intention of appointing anyone, including myself, to this position.

Section 26 approved.

section 27.

J. Tyabji: I would like to ask what there is in addition to the bill that's in the works to assist the registrar in developing forms for criminal-record checks.

Hon. C. Gabelmann: Most of the work on these forms has been done. The wording is here so that it doesn't have to

[ Page 16059 ]

be an order-in-council. It can be a form that the registrar approves. There's been a lot work going on behind the scenes in anticipation -- I don't know if that's appropriate or not -- of this Legislature approving this legislation.

Section 27 approved.

section 28.

J. Dalton: I move the amendment distributed, and I understand it's going to be met with some favour.

On the amendment.

Hon. C. Gabelmann: Just to be absolutely sure that we are in accord about what we're doing here, I am going to.... Just to be brief, because we don't often do this.... I am very much in favour of accepting amendments on the floor when they work. Subsection 28(1) will now read in the first line: "A person who contravenes

section 6 (1), (2) or (3)...." That's what this amendment will accomplish. I thank the member for assisting us in this respect. This was a good idea, and I thank him for pointing it out. I think this is the way committee should work.

J. Tyabji: I rise to speak in favour of this amendment.

The Chair: It's nice to all be on the record.

Amendment approved.

Section 28 as amended approved.

Sections 29 to 55 inclusive approved.

section 56,

section 28.1.

J. Weisgerber: The amendment to

section 56, as proposed, is as a result of what appears to be quite an inconsistency between the wording in

section 56,

section 28.1, as it deals with the Teaching Profession Act and other professions, and the preceding sections. The wording is far less precise, gives far less direction to the college, agency, council or discipline committee than would be the case, for example, with the Optometrists Act or the registered nurses' act. I'm curious about that. It seems to me that it would be far more appropriate to revise the wording and give similar instructions to the discipline committee under the Teaching Profession Act as would be the case with the others.With that in mind, I would like to move this amendment:

[SECTION 56, by deleting everything after the word "committee" and replacing it with the following:

"must take the failure or the determination into account, investigate the matter and decide whether to set limits or conditions on the practice of the member or whether to suspend or cancel the registration of the member."]

That is precisely the wording in almost every other case, and it would seem to me to be appropriate to carry that on with consistency through to the Teaching Profession Act.

[9:30]

On the amendment.

Hon. C. Gabelmann: First of all, I don't disagree at all with the intention of this amendment. There are two kinds of consistency, I guess. One is consistency within this act, and the other is consistency within the professional acts that we're talking about. If we hadn't gone through an extensive consultation process -- if this were our draft without the consultation and agreement of both the College of Teachers and the Ministry of Education -- I'd be quite happy to stand up and accept it.

We haven't had a chance to go back and do that consultation. I'm a little reluctant to do this, frankly, without going back to those two bodies and saying: "Let's do it this way instead, because it's more consistent with the act." It would be a bit of a betrayal of the consultative process if I did that without consulting them. For that reason and that reason only, I would say to the member that at this point, I don't think I can accept the amendment.

J. Weisgerber: Perhaps the minister can explain why he has not come up with the same kind of wording in drafting this. One would be left with the belief that perhaps there has been some consultation taking place, and for some reason either the BCTF or the B.C. School Trustees' Association or some other agency specifically requested different wording for this one area dealing with the Teaching Profession Act as opposed to all of the others.

Again, I find it very strange that we go from professional act to professional act with the same wording, and then we come down to this last one and have quite significantly and substantively different wording with respect to the instructions given to the discipline committee.

Hon. C. Gabelmann: I don't want to argue with the member, because we don't have an argument, other than to say that there isn't as much consistency as the member suggests throughout the rest of these sections. There are differences. This language was selected through the consultative process in order to be consistent with the provisions of the Teaching Profession Act so that they have some consistency in how they deal with failure to follow the rules they are required to follow, so that they don't have different procedures within their statute. That's essentially why they want to go this route.

The undertaking I can make is that I'll ask my staff to go back to the college and the ministry with the wording that the member proposes, and have those discussions -- obviously it's not going to be doable for this bill this session -- to see whether they would agree to move toward consistency within this bill as opposed to consistency within their process.

J. Weisgerber: Somehow I suspect this is about as close as I'm going to get. In looking again, the

section dealing with the Social Workers Act deals specifically with instruction to consider suspension or cancellation of registration as part of the remedies. The Psychologists Act specifically refers the disciplinary panel to investigate and consider suspension or cancellation of registration. When you go back through each one of these, the Optometrists Act, two sections under the Nurses (Registered Psychiatric) Act.... I look back here and it seems to me that there's a consistency with the professions, with the exception of the teachers, so that causes me concern.

With tongue in cheek, I would suggest that perhaps the thing to do would be to bring in the amendment, go back and consult, and if there were some solid reason for the inconsistency, to deal with that later. But I somehow suspect that's not going to be the case.

Hon. C. Gabelmann: The member's suspicion is correct. But I do undertake to not only do the consultation with the

[ Page 16060 ]

respective bodies -- the college and the ministry -- but also to have my staff advise the member as to the discussions and the outcome.

J. Tyabji: I want to speak very strongly in favour of the amendment and just remind the Attorney General that when the Citizens Against Child Exploitation first formed about eight years ago, they actually formed around the issue of a pedophile in the school system whom they were having a very difficult time removing. In fact, since they started to reveal this person in the school system, a number of other stories came out.

Obviously, the teachers' association, in order to protect the teachers' association's reputation, would want to be at the very least consistent with the other professions. I know the Attorney General has already said he won't accept it. I'd like to say very strongly that this is a very large loophole if we're trying to capture pedophiles. Certainly, in large measure we don't have anything to worry about with the teachers' association.

But they should have the same ability to act -- or at least the same direction -- as the other professions do, in ensuring that people are suspended or removed if there's a potential of risk. We have to remember that before we even get to this section, there has already been an assessment of risk. That's why the other sections are worded as strongly as they are.

Amendment negatived on division.

Section 56,

section 28.1 approved.

Sections 57 to 59 inclusive approved.

On

schedule 1.

Hon. C. Gabelmann: I want to move the amendment.... I was going to say standing in my name on the paper; it isn't. It's filed with the Clerk, and copies have been distributed to members.

[SCHEDULE 1, by deleting the following:

section 212(3): (Evidence that a Person Lives Off Avails of Prostitution);

section 222: (Homicide);

section 223: (When Child Becomes Human Being/Killing Child);

section 224: (Death that Might Have Been Prevented);

section 225: (Death from Treatment of Injury);

section 226: (Acceleration of Death);

section 227: (Death within Year and a Day);

section 228: (Killing