1979 Legislative Session: ist Session, 32nd Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JULY 3, 1979

Night Sitting

[ Page

485 ]

CONTENTS

Routine Proceedings

Ministry of Lands, Parks and Housing Act (Bill 17). Hon. Mr. Chabot.

Introduction and first reading –– 485

Land Amendment Act, 1979 (Bill 16). Hon. Mr. Chabot.

Introduction and first reading –– 485

Committee of Supply: Ministry of Attorney-General estimates.

On vote 19.

Hon. Mr. Gardom –– 485

Mr. Macdonald –– 485

Hon. Mr. Gardom –– 487

Mr. Smith –– 488

Mr. Leggatt –– 488

Hon. Mr. Gardom –– 489

Mrs. Jordan –– 490

Hon. Mr. Gardom –– 492

Mr. Hanson –– 493

Ms. Brown –– 495

Hon. Mr. Gardom –– 495

Mr. Lorimer –– 497

Hon. Mr. Gardom –– 498

Mr. Stupich –– 499

Mr. Macdonald –– 499

Hon. Mr. Gardom –– 500

Ms. Sanford –– 501

Hon. Mr. Gardom –– 501

Presenting Reports

Annual report of the superintendent of insurance, 1978.

Hon. Mr. Nielsen –– 501

The House met at 8:30 p.m.

MR. SKELLY:

Mr. Speaker, I'd like to introduce three important guests from Alberni

constituency: my campaign manager in the last election, Mr. Bill

Dietrich; his good lady, Marlene Phillips; and also my beautiful wife,

Alexandra.

Introduction of Bills

MINISTRY OF LANDS,

PARKS AND HOUSING ACT

Hon. Mr. Chabot presented a message from His Honour the Lieutenant-Governor:

a bill intituled Ministry of Lands, Parks and Housing Act.

Bill

17 introduced, read a first time, and ordered to be placed on orders of

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

LAND AMENDMENT ACT, 1979

Hon. Mr. Chabot presented a message from His Honour the Lieutenant-Governor:

a bill intituled Land Amendment Act, 1979.

Bill

16 introduced, read a first time, and ordered to be placed on orders of

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

Orders of the Day

The House in Committee of Supply; Mr. Rogers in the chair.

ESTIMATES: MINISTRY OF

ATTORNEY-GENERAL

(continued)

On vote 19: minister's office, $145,623 — continued.

HON. MR. GARDOM:

On behalf of the people of the province I would very much like to

express my thanks, and the thanks of all the members of this assembly,

for their accomplishments, duties and responsibilities over the years.

Perhaps, in fact, most of which they have to do is often unsung and

unheralded, and in many cases involve cases and situations that are

very difficult and contentious in the areas of police, courts and

corrections, and in the various specialty designations such as

coroners, fire marshals, public trustees, land registry offices, racing

commission, and so on.

Throughout the ministry there are dedicated, hard-working people who are always

endeavouring to improve procedures and develop policies to better assist the

general public and society. On their behalf, I’d very much like to extend

to the Deputy Attorney-General, Mr. Dick Vogel, and all his departmental leaders

an expression of appreciation, gratitude and just plain thanks. To be included

in those expressions of gratitude would certainly be the commissioner of corrections,

Mr. Bernard Robinson; Associate Deputy Minister Dennis Sheppard, in court administration;

Assistant Deputy Minister Dick Bird, in charge of legal services to government;

Associate Deputy Minister Dean McDiarmid, of the criminal division; and Associate

Deputy Minister Mark Krasnick, in policy and planning. We'd like to pay

very best wishes to him on his recent marriage; he's now on his honeymoon.

I extend also the kindness to Dr. Gilbert Kennedy, in charge of statutory revision;

Mr. Allan Roger, of legislative counsel; and Mr. Mel Smith, who looks after

and leads our constitutional wing.

Furthermore,

before sitting down I'd like to express my compliments and

congratulations to Mr. Alex Pearson, who has retired after 50

years-plus within the ministry. He has an outstanding career in public

service in British Columbia. He is indeed an outstanding individual,

and we wish both him and his wife the very best during his time of

retirement.

I would like to reiterate the remarks I made a

couple of days ago to Mr. Geoff Mortimer, who is now the retired

chairman of our Police Commission. He has performed excellent service

in the province of British Columbia in his various duties over the past

few years.

With that, Mr. Speaker, I would welcome questions from the hon. members.

MR. MACDONALD:

Mr. Chairman, be getting up several times in the estimates, and the

members needn't applaud and pound their desks every time I get up.

I appreciate the references of the Attorney-General to the people in his ministry, and I agree entirely with what he said.

enjoyed his little repartee before we broke up for supper and various

recreational activities at 6 o'clock. He referred to previous members

of the House and didn't mention the story in the paper that said that

the three Liberal members of the cabinet might have been retiring

before the last election, and he didn't mention David Anderson, their

former leader.

HON. MR. WILLIAMS: False story.

MR. MACDONALD: Oh, there is Cassius. Cassius says we should not remember David Anderson. No wonder. Et tu, Brute! Or. et tu, Cassius?

That was Cassius. Cassius spoke up. Anyway, I appreciate it: it was a good reference to other members of the House.

The

Attorney-General spoke about how the press had to climb a drain pipe to

try to ask him a simple question about the public polity of the

province of British Columbia. It's the same Attorney-General who has a

Freedom of Information Act at the very bottom of his drain pipe. What's

the priority of giving it, Mr. Attorney-General? Will you answer that

question?

HON. MR. GARDOM: Could I volunteer some..?

MR. MACDONALD:

When I'm finished. Mr. Chairman, there can only be one member on his

feet at any one time in this House. and the penalty for disobedience to

that is that somebody has to leave, gets thrown out into the hall. They

get thrown right out into the hall.

MR. CHAIRMAN:

Order, please. Those who seek the protection of the Chair should first

ensure that they are in order themselves. Please continue.

[ Page 486 ]

MR. MACDONALD:

Mr. Chairman, if you are suggesting I'm not in order, I was certainly

fine when I came in here. Has something happened? I better go over that

again; I'm not sure.

Mr. Chairman, I do want to ask the

Attorney-General a couple of questions. We're not going to keep him all

night — just until 11 o'clock, tomorrow afternoon, Friday afternoon and

so forth. But I will ask one question at this time and it's a serious

matter.

The Attorney-General has said a lot about the

problems on the highways in terms of drinking drivers, reckless drivers

and highway-caused deaths. I appreciate his sincerity in the matter.

But time after time the Crown in the province of British Columbia has

laid a charge of criminal negligence which, in my view of the facts as

they come to me, was perfectly justified. And then the charge has been

reduced to dangerous driving or it has been reduced to impaired

driving, and when the charge has been reduced, the accused pleads

guilty and there's a fine and maybe a six-month suspension of driving

privileges. Very often out there in the community you have a bereaved

parent or parents because there's been a fatality, and you have a great

sense that justice has not been done in terms of enforcement of the

Criminal Code, which provides for driving infractions.

Mr.

Chairman, I want to give two cases in support of what I am saying, and

I'm not going to mention the names. It's not that kind of an evening;

it's not that kind of a Legislature, as far as I'm concerned. But I

want to read from a letter the Attorney-General is familiar with about

one incident that happened up north. This is from a mother whose son,

who was 17 years old, was killed in the accident.

HON. MR. GARDOM: That was appealed.

MR. MACDONALD:

The sentence was appealed but the charge had been reduced, and on that

kind of a charge, the sentence appeal failed. You already know the case

that I'm speaking about, but let me give the facts. I don't think the

charge should have been reduced; that's what I'm saying.

The

mother writes: "This accident took place in September 1977 near

midnight. Our only son was killed and another youth seriously injured,

driving in the car of the person who was accused while drunk." I think

you know the letter. The mother and the boy who survived say that the

driver was drunk.

The car was a Mustang, with a stick shift,

and was registered, let's say, in the parent's name. The youth who was

sitting next to the boy who was killed stated that the speedometer was

at 84 miles per hour. The boy who was killed was sitting in what is

known as the "suicide seat, " but I don't see why they should call it

that; it was the third seat in the front seat of the car. All of the

boys in the car were yelling and saying that the driver should stop,

because they were afraid that something was going to happen.

The

accused met an oncoming car, whose occupant was a man — and call

him "Mr. X" — who was forced to leave the road, and drove up on the

sidewalk to avoid being hit. Mr. X was so put out by the conduct of

this car that he turned his own car around and went down the street and

was able to see the whole accident. He was a key witness, says the

deceased boy's mother, who was never allowed to testify because the

charge was reduced to the point where the accused pleaded guilty — as

well he might. So these kind of vital allegations about the speed and

about the drinking never came up before a court or a jury.

There

was expert evidence called in from Vancouver who said the car was only

going 24 miles an hour, but the mother says this about that:

"Our

son was killed instantly. The coroner's report stated he had a

fractured skull, ruptured spleen, damaged liver and something went

right through his lungs.

"The accused driver

of the car was driving west, and there was a pickup truck parked on the

left side of the street, facing east, which he hit, and the pickup

truck was pushed up onto the sidewalk and right across the street, a

distance of approximately 40 feet, in a semi-circle" — and diagrams are

attached — "onto a vacant lot.

"Can you in all

honesty believe that there was not drinking, that there was not

excessive speed, that there was not reckless conduct?"

And

yet this charge was reduced to dangerous driving, which is a much less

serious offence. The accused pleaded guilty, and he had a fine of $450

and a six-month suspension of his driving licence.

Now a

jury never had a chance to weigh the kind of things that the mother

believes about that accident: that there really was excessive speeding;

that there was recklessness and some drinking; and that the speed of

the car must have been pretty evident from the fact that it was able to

push a pickup truck 40 feet. She does not think it was justifiable that

the charge should have been reduced in that way. And, of course, there

is no inquest when there is a criminal charge of this kind laid and

disposed of, so the community feels justice has not been done.

think there are quite a few cases of this kind, Mr. Chairman, in the

province of British Columbia. Let me refer to one other. It's in a

letter of February 14, 1979. This is from the father of the boy who was

killed. The father writes this from the lower mainland of British

Columbia:

"On December 18, 1977, our son Glen

was a passenger in a car, in the rear seat behind the driver, coming

from a Christmas party around 1:30 a.m. He was killed instantly as a

result of a broken neck at the age of 18. He was wearing a seatbelt.

The driver of the vehicle was 25 years old."

But then the

pattern asserts itself. The driver was originally charged with criminal

negligence, which is similar, I suppose, to the old manslaughter

charge. We used to have a lot of manslaughter cases in the province

where death resulted. This was then reduced to something else — and the

father isn't sure what — and he was finally brought to court on an

impaired charge and pleaded not guilty. Subsequently he was convicted,

with an alcohol reading of .16 from blood samples.

In summation, the judge said:

'I suppose you will be faced with civil action. The fine will be $300,

and loss of licence.' We do not know for how long a period he would

lose this privilege, or why the charge was reduced."

The son

who was killed was 18 years of age. The judge had made some reference

to "civil action," and there was a claim, but when you lose a son and

the son is not financially helping the parents — because the son in

this case was 18

[ Page 487 ]

years

of age and was still a dependent — the damages are extremely low. I

don't know how that should have been taken into consideration by the

judge, because that's paid by ICBC. And the parents, for the death of

their son, received the funeral costs and things of that nature,

amounting to $2,594.50.

The police accident report shows

that it was more than a case of impaired driving. It says of the

vehicle driven by the accused: "Vehicle No. 2 attempted to pass vehicle

No. 1, lost control, and both vehicles left the roadway, with the

vehicle No. 2, in which the boy was killed, striking a power pole." Yet

that was treated by a judge as just another plea of guilty to having

alcoholic breath content of over .08. The community never did hear the

facts of the accident, and it does not feet satisfied that justice has

been pursued as it should have been.

The Attorney-General

has made some explanations from time to time, saying it is up to

regional Crown counsel, whether it's in the northeast of the province

or the lower mainland or Vancouver Island, to make these decisions.

But, Mr. Chairman, I would remind the Attorney-General that in the last

analysis — and the first analysis — he is the Queen.

MR. STUPICH: He is the Queen?

MR. MACDONALD: He is the Queen in this province.

MR. STUPICH: A queen or the Queen?

MR. MACDONALD: I don't know why I should be diverted in this fashion by one of my own colleagues.

[Mr. Strachan in the chair.]

The

Attorney-General is responsible for every charge, be it large or small.

Now you may delegate that out and say it is up to regional Crown

counsel; but when a question arises, as it arises in this case of too

many charges of criminal negligence being laid, and it then being

reduced by the Crown What is it, Mr. Attorney-General? Is it to save

money? Is it because you feel that you can't get a conviction for

criminal negligence? Well. If that's the case leave it up to the jury.

If they won't convict of criminal negligence, there is an included

offence. dangerous driving, and they can convict of that. But should it

be your prosecutor's decision, where there has been a fatality, usually

of a young person, to reduce the charge, and presumably without

conferring with Victoria, and then to have a whole community buzzing

with the kind of speculation that maybe somebody knew somebody else and

that kind of thing?

HON. MR. GARDOM: You were the guy that buzzed that.

MR. MACDONALD:

Well, the Attorney-General says I was the guy who buzzed that. I

haven't referred to the particular case. If he wants me to do it I

will; but I think the Attorney-General is quite wrong in that

suggestion. I'm not making any suggestions of that kind.

What

I am saying is that, with these charges in which there is a death

involved, and in which there obviously has been dangerous driving

combined with drinking, you should not permit your prosecutor simply to

accept a guilty plea to an impaired driving charge and have a fine of

$300 and a six-month suspension of licence. Having started with that

question, Mr. Chairman, leave off. Perhaps I'll enter the debate at

another stage, after I've heard his answer.

HON. MR. GARDOM:

I'd like to thank the hon. member for his comments. He appreciates and

knows full well — as do I, and as does everybody who is connected with

the prosecutorial side in B.C. — that there are difficult decisions to

be made and they have to be made in the localities where these

incidents happen. I would just like to inform the hon. member, in case

he's forgotten, of the procedures which are long-standing policy, and

which have been recently altered as a result of a directive by myself.

The general procedure is really a six-step one insofar as proceedings

are concerned when a traffic accident has resulted in a death.

First

of all, we have the investigation of the facts by the police, which

means obtaining the necessary evidence. The second step is the police

report to the local Crown counsel or directly to regional Crown

counsel, outlining the evidence and the statements of witnesses and

other details. Then Crown counsel determines, as the third step,

whether the evidence is sufficient for the Crown to lay a charge, and

what charge should be laid. Now sometimes, where the evidence is

clear-cut, there is not that much difficulty. Sometimes, when it is

not, or there are witness problems, there is more difficulty, as the

hon. member knows. Under the Coroners Act the coroner proceeds with his

investigation to determine the cause of death. If charges are laid then

the coroner is requested to waive his inquest because the court case

itself will determine the cause of death. If charges are not laid,

obviously the coroner proceeds. The sixth point, Mr. Member, is that

the regional Crown counsel is consulted if local Crown counsel wishes a

second opinion on his decision. In what may be considered from an

evidentiary point of view borderline cases or special circumstances the

matter is sometimes referred directly by the police to the senior

level. which is regional Crown. So the police can go directly to

regional Crown or directly to the local Crown. If regional Crown

counsel requires another opinion, which is the case in cases that are

difficult, then he consults with the assistant deputy minister in the

criminal justice division. Mr. Neil McDiarmid, QC.

As I

mentioned to you, this has been the practice that has been followed in

British Columbia. It was this spring that I requested the assistant

deputy minister in the criminal justice division to ensure in the

future that all cases involving a motor vehicle fatality in which

charges are not laid, if the decision is made at that regional and

local level not to lay a charge in a motor vehicle fatality — and that

has happened — are to be reviewed not just by the local Crown but also

by the regional Crown. If any differences of opinion develop at those

levels, then the matter is automatically to be referred to the

assistant deputy minister for consultation and decision. We certainly

hope that this is a practice which will result in a more uniform

charging practice throughout the province.

It is a difficult

area, hon. member. I think that we have established the best guidelines

that we can. It's not possible for us to say that in every fatality

there will be one charge and one charge only. If that were the case, we

wouldn't

[ Page 488 ]

have

the Criminal Code written the way it is. There is an opportunity to

take different routes. But I agree with you that those routes should be

exercised with a great deal of caution, and this is the message that we

have passed along to the Crown throughout the province. They should

exercise a great deal of caution and be very deliberate in making those

kind of decisions, because they're very important decisions. They do

involve tragedies, and I thoroughly agree with your general sentiment.

MR. MACDONALD:

Mr. Chairman, I suggest that there comes a point where the

Attorney-General should himself look at some of these cases and decide

whether it was appropriate that the charge was reduced. I'm not talking

about no charge at the moment. I'm talking about cases where criminal

negligence has been laid and the charge reduced either to impaired or

to dangerous driving. It's all very well to talk about the system, and

the system may be good: you go through the local prosecutor, then the

region, then the head of the criminal division in your own department.

But there comes a time when the Attorney-General has to look at the

thing and say: "That charge should not have been reduced." He must make

a personal judgment because he is, as I said before, the Queen in terms

of prosecutions.

I've given two instances of what I think is

a very dangerous situation in terms of traffic enforcement and

satisfying the parents and the families of people who have been killed

on the roads of B.C. I ask the Attorney-General to look with care into

those situations and have some of the files brought right to his own

desk. He and his deputy should see whether that was the correct

decision, and also ask whether the community will really think that

justice has been done, has been seen to be done, or has seemed to be

done — either way you have it. If you do have a widespread feeling out

in the community that justice has not been done.... There were, in this

first case, several witnesses who never got a chance to tell their

story because of the reduced charge in the guilty plea. You have those

people in the community telling their stories and the community itself

feeling: "I wonder what really went on." That's what they think, and

that's bad for justice. I think the Attorney-General should summon some

of these files right to his own desk and look at them, because some of

the decisions to reduce the charges are, to my mind, quite difficult to

accept.

MR. SMITH: Mr. Chairman, I have a little

difficulty following the second member for Vancouver East (Mr.

Macdonald) because he seems to be telling us that whenever there's a

fatality the charge of criminal negligence or criminal negligence

causing death should be laid. Also, he seems to be derogating from the

discretion of Crown counsel.

I had the honour to prosecute

when he was Attorney-General in this province, and I can remember

prosecuting a number of cases of criminal negligence causing death, and

I didn't have to check with him when it came to considering whether

that was an appropriate charge to be reduced. There are some police in

the province that have the notion that every time there is a fatality

the greater charge automatically has to be laid. Then the matter comes

to the attention of a Crown prosecutor, and he reviews the facts and

decides that a more appropriate charge is perhaps dangerous driving or

criminal negligence alone, and the charge gets reduced. I think that if

we were to carry out his suggestions across the board, we would take

away from the discretion of a Crown prosecutor.

The other

thing that I had difficulty in following in his remarks was the further

observation he made that the aggrieved family did not have a chance to

testify and tell their story before the court. I never encountered a

case of a fatality where an aggrieved family didn't at one stage wish

to do this. It's a natural feeling and emotion, and it's one that you

always encounter in one of these tragic cases. But that cannot be

something that guides a Crown prosecutor as to the correct charge to

lay. If the person charged with criminal negligence causing death were

to plead guilty to that charge, then the parents and family wouldn't

have the chance to tell their story before the court because it would

be a guilty plea. So a prosecutor really can't take that into

consideration either. He has to do his duty, based on the facts as he

sees them, and for the good of the community. If you're going to have

the Attorney-General operating in Victoria as a central "big brother"

to override an experienced prosecutor somewhere else who has

investigated the facts, then the Attorney-General is going to have to

be the prosecutor of everybody in this province. With respect, I don't

think he should be.

MR. LEGGATT: I would like to say

how much I appreciated the earlier remarks of the Attorney-General. His

capacity to deflect hostility with humour has probably half-worked, but

I still feel a sense of hostility about something that I hope the

Attorney-General will take very seriously.

The matter I feel

so concerned about appears in a judgment of a provincial court judge,

Judge Govan, on May 9, 1979, and I think it useful for the record that

I read out the remarks of the learned judge in that particular case.

The name of the case is Sumner vs. Sumner; it now has some notoriety in

the province of British Columbia, because it's a case that deals with

family law. But I think it useful that the Attorney-General pay some

close attention to the remarks of the judge in that case. I'm going to

quote from page 14:

"There's one other matter

that comes to me that I think should be on the record now and plain

here before Mrs. Sumner, and I'm sorry that Mr. Sumner isn't here; and

that is the fact that the administrative judge, His Honour Judge Reed —

who sets my

schedule in this area — telephoned me prior to April 10 and

after April 1, when I indicated that I was not prepared to grant orders

until the validity was tested, to say that he had been informed by the

chief judge of his province that someone in the Attorney General’s

department had requested that I be transferred from this division of

the court to elsewhere in the province, or elsewhere in any event, so

that another, perhaps — and the suggestion was, and I draw the

inference — more complacent judge, compliant judge, would hear and make

orders without entering upon this constitutional inquiry.

"Subsequent

to April 10 on the Thursday, I received a call, a telephone call from

the Deputy Attorney-General, Mr. Vogel, who suggested to me the

argument which you are about to put forward, sir, and suggested to me

that I transfer myself elsewhere; that it was administratively

inconvenient.

[ Page 489 ]

I understood from Mr. Kahn that he was present during this argument

or this discussion.

"Now

it seems to me there's a matter of deep principle here involved where

the Deputy Attorney-General can suggest to the administrative judges

that judges who in good faith render judgments contrary to the

administrative convenience of the Deputy Attorney-General's department

be transferred elsewhere in the province."

I go on to quote from page 42 of the judgment:

"So that there is no confusion in regard to the matter,

I think I should also add and you convey my respect to the Deputy Attorney-General

and say that I do not wish to have any telephone calls from lawyers or litigants

privately, in regard to bias, alleged or otherwise. Nor, it seems to me, is

it proper for him, or anyone in your department, to suggest to me that I transfer

myself elsewhere for administrative convenience. I content myself with that.

But you can appreciate that it's a most serious thing that I have to even

utter these, of course, and I do so here in open court where a reporter is taking

them down."

That was a decision of a provincial court judge made in open

court on May 9.

I want to just refer back to one phrase; it seems to me absolutely

vital. I think I should also add, and you convey my respect to the Deputy Attorney-General

and say that I do not wish to have any telephone calls from lawyers or litigants

privately, in regard to bias, alleged or otherwise."

The concern I have here is with the independence of the

judiciary. Certainly anything done by the Deputy Attorney-General is

with the authorization of the Attorney-General. I appreciate that the

Deputy Attorney-General is a public servant, and not in a position to

defend himself, but it seems to me that this judgment, made in open

court, casts a slightly different light on it. It is the

Attorney-General's responsibility in this House to respond to the

actions of his deputy in this case.

It's vital and important

that judiciary — provincial court judges — maintain independence,

particularly when acting on matters where the province is in conflict

with an independent litigant; and this seems to have been the case

here, because the case surrounded the constitutional validity of a

provincial law.

Surely a provincial court judge has as much

right to act independently and test the constitutionality of any law,

whether federal or provincial, without interference from the office of

the Deputy Attorney-General or the Attorney-General himself.

the public in British Columbia are going to have any confidence in

their judiciary, it's absolutely vital that their judiciary be left

alone by the Attorney-General and by the Deputy Attorney-General. If

one is a litigant and is in conflict with the Attorney-General's

office, we don't expect one side in that particular suit to try to

influence the judgment of the judge in regard to the ultimate outcome.

have had similar problems in the past on the federal level. You recall

the case of the Hon. John Munro who, as a result of a telephone call,

gave his resignation to the Prime Minister, since it could have been

inferred as an attempt to influence the decision of the court.

There

was another minister, Mr. Drury, who submitted his resignation as a

result of a conversation with a supreme court judge. I could go on and

on. It is important that the Attorney-General of this province not

interfere in the administration of justice at the level of the

provincial court judge, because a provincial court judge is not an

instrument of government policy. He is an independent judicial officer,

and we must understand that in our democratic process we are going to

erode the confidence of the public in provincial court judges. Judges

are not an arm of the Attorney-General.

I have some other questions I would like to ask the Attorney-General, but he may wish to respond to this now.

HON. MR. GARDOM:

This particular case was a case in front of His Honour Judge Govan, as

the hon. member has indicated. It dealt with the Family Relations Act.

On April 10 of this year His Honour delivered a lengthy written

judgment holding that one

section of the Act was ultra vires the

Legislature of the province, notwithstanding the fact that the matter

had not been raised or argued by counsel; and no notice had been

provided to the ministry pursuant to the Constitutional Questions

Determination Act.

As a consequence of that determination by

His Honour Judge Govan, an application pursuant to the Judicial Review

Procedure Act was eventually brought before the chief justice of the

supreme court on April 23.

In that intervening period, hon.

member, it is certainly true that the Deputy Attorney-General spoke to

the chief judge of the court, the administrative judge and Judge Govan.

He explained to Judge Govan the approach that was being taken — that

the request was going o be made in front of the supreme court for a

mandamus that the matter be returned to Judge Govan for determination.

But

I can assure you, sir — and I've been informed by the Deputy

Attorney-General — that at no time would the Deputy Attorney-General or

any Deputy Attorney-General that I've known attempt to interfere in any

manner whatsoever with the independence of the judiciary. If he was

doing that it would be highly improper. He would be the first person to

say that and so would I.

However, the proceeding went forth

before Chief Justice MacEachen. I gather that prior to it coming on,

there was concern expressed by Judge Govan — and it's a justifiable

concern — as to whether the unconstitutionality or otherwise would be

argued at that stage. The decision was rendered by the chief justice

and the matter was referred. A submission was then made on the part of

the ministry, which seems to me to be a thoroughly appropriate

submission by virtue of the predisposition of Judge Govan on a point of

law. Without argument and without submission on behalf of the parties,

a submission was presented to Judge Govan that he disqualify himself on

the basis of an apprehended predisposition of the case. He declined to

do that. That's where the matter sat.

Insofar as the

additional steps in these proceedings, he has challenged the

constitutionality. The matter is being very carefully considered. The

question was raised by the hon. lady member across the way a few days

ago in question period and I took the question as notice. The point

that was raised as to constitutionality is under active consideration

right now.

MR. LEGGATT: Mr. Chairman, the point is

not the constitutionality. It's not the question of whether it was

appropriate in these circumstances for His Honour Judge

[ Page 490 ]

Govan

to have ruled in the manner that he did. That's a question for other

courts to decide. The Attorney-General's department has quite properly

taken whatever legal process they had available to them, but the point

that has not been dealt with in the Attorney-General's answer lies

again in the reasons for judgment given by the learned judge. I'll read

them again so that there is no confusion in regard to the matter: "I

think I should also add and you convey my respect to the Deputy

Attorney-General and say that I do not wish to have any telephone calls

from lawyers or litigants privately in regard to bias, alleged or

otherwise."

Now with the greatest respect, Mr. Chairman, the

Attorney-General or his deputy isn't just Joe Blow off the street. When

a telephone call comes from that person to a provincial court judge in

these circumstances, it is a very dangerous procedure indeed. I'm

hoping that I can get a commitment from the Attorney-General that this

is inappropriate in these circumstances, that a phone call should not

be made to a provincial court judge where he has come to a particular

conclusion and where there are legal proceedings available to the to a

pro Attorney-General in terms of that particular decision that in fact

are subsequently taken. What is improper is the phone call. The judge

himself obviously believed it to be improper and felt so strongly about

it that he did a very unusual thing — he included it in his reasons for

judgment.

Now I'm asking, Mr. Chairman, for a commitment

from the Attorney-General that this process should not go on in these

circumstances. I wouldn't think that in his practice the

Attorney-General would think of phoning a judge privately in regard to

a case that he was actively involved in, pursuing his argument about

the merits of the case over the telephone with him. That's most

inappropriate. I don't know what the Deputy Attorney-General said, but

it certainly seems to have left the judge with a very strong feeling in

his mind that there was an attempt to indicate some bias — that's what

the decision says. I'm somewhat hopeful that the Attorney-General will

clarify this matter and make it perfectly clear that as far as he is

concerned, this is an inappropriate procedure.

I'd like to

refer the Attorney-General to another subject which is of some concern,

I think, to practising lawyers and to the general public. It's been

fairly said, I think, that one should not attempt to make political

capital out of the very unfortunate cases of child abuse that have

occurred in the province. This is not a political matter. All political

parties wish to do whatever they can to avoid those kinds of activities

and that kind of damage to society.

But there is one area

that comes under the Attorney-General's jurisdiction, and it deals with

the question of appointment of counsel in cases where children are

being apprehended and taken from their parents. At the present time,

just to give you some comparison, if you happen to have an accident

with your car, ICBC will retain a lawyer at premium rates to make sure

they get protected in regard to that particular fender-bender or

particular accident that they've had. About $75 an hour, I think, is

what they're charging.

HON. MR. GARDOM: Too much.

MR. LEGGATT:

Okay. Let's say $50, $60, somewhere around there. But, Mr. Chairman, I

do think — and I hope the Attorney-General will inquire into this — the

rates paid to counsel in respect to cases of child abuse where they are

before a judge trying to determine whether a child should be removed

from the family unit as a result of mistreatment.... I can't think of a

more important judicial proceeding than that one. I can't think of a

proceeding where one would wish to have better representation for the

child than in that particular instance where the child's whole future

is in jeopardy and a very fair and clear determination has to be made

between the rights of the parents and the rights of the child. Some of

the most difficult decisions are right around this area. It's not a

fender-bender; it doesn't involve money or property. Yet we are

appointing counsel at about $35 an hour. We're putting junior counsel,

inexperienced counsel, into this kind of a proceeding, which really

should have the most effective counsel one could find in this most

difficult kind of case.

What I'm urging the Attorney-General

to do is to review the process by which appointments are made so that

the superintendent of child welfare has carte blanche in terms of the

appointment of counsel. If she feels strongly about the protection of a

child who has been abused, she should be able to hire whomsoever she

wishes at senior counsel rates, if necessary, so that we know at least

that the court procedure that goes on in those cases is at a high level

with very experienced counsel, so that the judge is fully informed of

both sides of the case. It is particularly true if one were seeking to

apprehend a child from a fairly wealthy family who can hire a very good

and expensive counsel, where in fact the superintendent of child

welfare is faced with using counsel of less experience.

I'm

not here putting those counsel down. I'm only saying that there should

be some seniority and experience in those kinds of cases, and my

information is that there hasn't been. In fact we are not using senior

counsel for those kinds of important human cases that are much more

important than all the fender-benders and all the property damage you

can imagine. You can't put a dollar figure on this one. I'm urging the

Attorney-General to seriously consider changing the way we go about

appointing counsel in some of these cases, so that the superintendent

has any counsel she may wish or feels comfortable with at a reasonable

rate, but not at the low rate.

MRS. JORDAN: Mr.

Chairman, I hesitate to intrude in this debate, being but a mere member

of the lay public and a citizen of this province who is confused and

concerned about the legalities of this country, the protecting of the

status quo that we heard just now — although it was related to a very

serious concern — and the debate that has taken place in this House

this evening, in which we've seen lawyer after lawyer get up and speak.

They have exemplified to me the nub of this total problem of relating

to the public and relating to the delivery of justice in this country,

not only in British Columbia. Not one of these lawyers has been able to

agree either with each other's argument, or with the decisions of the

learned judges, or with the Attorney-General, who is the chief law

enforcement officer of British Columbia.

I suggest, Mr.

Chairman, that in a sense they are taking this forum, which is a

people's forum, not a courtroom, and trying to turn it into a

courtroom, much, I am sure, to the satisfaction of their legal

instincts and talents.

MR. LEA: Should the Attorney-General be a lawyer? That's the next question.

[ Page 491 ]

MRS. JORDAN: That's probably a very valid question, Mr. Member.

But

the question that is in the public's mind is: what are we to do and how

are we to understand? They don't understand, Mr. Chairman. They are

frustrated, they are confused, they don't know where to go for

assistance. The hon. member for Coquitlam-Moody (Mr. Leggatt) is taking

exception to what he considers inappropriate action of the

Attorney-General and his ministry. What is the public to do? We have

nine men who sit in the Supreme Court of Canada, the ultimate and final

decision-makers of justice in this country, and no recourse for the

public on those decisions, except through the capabilities or the lack

of capability of their lawyers — if they choose to fight it.

Mr. Chairman, I have spoken on this subject in the House before, and I want

to preface my remarks tonight by asking the Attorney-General if he will take

this most opportune time, when this government has more legal members on its

benches than at any time in the history of this party — very learned gentlemen,

but unfortunately no gentle ladies — men who, I am sure, are dedicated to not

only having the fairest and finest justice system in the world, but also to

having the public understand it and make input, people who could give great

guidance to an overview of this system, to set about establishing a royal commission

to look into the total delivery of justice and the justice system in the province

of British Columbia, recognizing that there is a good deal of justice administered

in this province which is federal. I would also like the Attorney-General to

allow input on those areas in order to make presentations to the new federal

government in Ottawa. This is what makes this so timely: because we have a new

government in Ottawa, we may well see new ideas and new attitudes, and perhaps

they would be receptive to some of the changes that must be made if this time-honoured

system is to stand on its strength. That strength is such that it can stand

scrutiny, it can stand questioning and it can stand the input of the concerned

public.

suggest, Mr. Chairman, that the people of British Columbia are lacking

in understanding and are confused. When the hon. member says there is a

suggestion that they may lose confidence in the justice system, I would

suggest that 90 percent of the people of this province have lost

confidence in the justice system. They have lost confidence, and they

are afraid to say it. You can go to any coffee shop, you can go to any

union meeting, you can go to any place of work, you can go to a

cocktail party, you can go to a beer parlour, and you mention the word

"justice," and you mention the concern that people have for

understanding this system, and they throw up their hands and they say:

"I don't understand it; the law seems to me as if it were now designed

to protect the guilty."

The victim in our society today is

finding that he is not only the victim of the act, but he is becoming

the victim of the system. The only answer they have is: "Well, go to

court." So he has to ferret around through the confusion and his lack

of knowledge to select a lawyer, and what we are in danger of finding

in our system in this country is that it is not justice and fairness

and equity that is brought down in that decision or is influencing that

decision, but the ability or lack of ability of the lawyer. We have no

way of having assurance, and people are questioning how they can have

assurance, that it is, in fact, justice for people, concern for the

innocent that should be very much a part of the concern of that court.

They need reassurance that in fact it is not precedent built upon

precedent that is dictating the decisions that are being brought down

in some of our courts. That precedent is feeding and serving the

institution or the terminology of law, but the public is asking if it

is serving what the whole court system was designed to do and was set

up for, and that is the protection of people who are innocent.

Mr. Chairman, who can they go to? You yourself, hon. member, said: "Don't

go to your MLA." We all know that we dare not express any opinion except

in this House about decisions that have been brought down in the court about

action or lack of action of the RCMP. If one stands up and questions the court

or the system, then you're a redneck. The very system itself and the very

strength of that system which is preventing appropriate questioning and criticism

is intimidating, once again. the public.

believe that there has to be a way that the concerns of the public can

be expressed to an impartial body. We have a bill in this House now in

which one of our colleagues, the first member for Vancouver South (Mr.

Rogers), makes a very honourable recommendation. I won't transgress on

the motion, but he asks for, in essence, assistance to provide more

equitable judicial services for people, and he calls on the private

sector to do it. But I wonder if we can consider that sort of a

question until we analyse the costs and the efficiency of our judicial

system.

Mr. Chairman, I was on the plane the other day and a

young man had been called from the RCMP in Vancouver, put on the plane

in Vancouver in the morning and sent to an Interior community at full

pay, away from his work. He sat there all day on the assumption that

possibly the defending lawyer was going to call a professional witness.

The defending lawyer never did, but the people of British Columbia had

to pay for that person's time, loss of effort and the expense of

getting him there.

We hear the public questioning seriously

the effectiveness of the use of our courts. Why are cases dismissed or

adjourned time after time? What is the accountability of the lawyers

in terms of the use of the time of our courts, in terms of the use of

the time of our judges? This is something that perhaps we should be

looking at. It is certainly something the public is asking us to look

at.

The hon. members have talked this evening about

drinking-driving. That's the "in" thing to talk about, and it leaves

lots of room for discussion. But, Mr. Chairman, you can go right across

the board. Let me give you a little example of a person who rented a

home to a person, and after 19 days the individual renting the home

decided that it was too cold and he was moving out. So the individual

renting the home took the person to court and the judge said: "Well,

you know, after all, the poor fellow was only there 19 days. Let's just

dismiss the charges." Now wouldn't you, if you were that individual who

had in good faith rented a premises to someone — it doesn't matter what

it was like; the person entered into the contract freely — expect

justice to be done, and that person to at least have to pay for the 19

days they were there? This is what people are questioning.

We've

had the drinking-driving. I spoke on the case in the Okanagan that I

thought was so shocking, and I don't intend to repeat it. But we have

another case of a 21-year-old in that, area who has driven and had two

light-delivery drinking-driving accidents. He killed two

[ Page 492 ]

people

at two different times, then went to Alberta and killed another person,

and he is driving today. When I spoke to the Attorney-General about

some of these things — and he is a compassionate man — he said we must

consider that these people have to live with this knowledge the rest of

their lives. I submit to you, Mr. Chairman, in many instances living

with this knowledge is not a penalty. These people are not warm, loving

human beings with consciences. I'll give you case after case where

they're little more than animals in human disguise, and it is murder.

The people are asking questions about just that sort of a comment.

Mr.

Chairman, another incident of frustration that the public are asking

about was in the North Okanagan. People were coming in from Lumby on a

back road. They went by a gravel pit and there were about 200 young

people up there from the ages of 9, 10 and 17, drinking, drugging and

whatever else goes on. The hon. ex-Attorney-General (Mr. Macdonald) can

sit there and laugh again, as he always does when it comes to the

concerns of people. He just wants headlines and muckraking.

These

people were very concerned about these young people. They went down to

the RCMP and said: "Did you know this was going on? Could you go up?"

The RCMP said: "We've been up. We couldn't get out of our cars. They

bombarded us with beer bottles and liquor bottles, and so we left." Now

we can be very sympathetic to the RCMP, but they were powerless to act,

and the public is again asking why. Why do we stand by and let

17-year-olds lure 9- and 10-year-olds into the use of drugs, booze and

what else right under our noses? Is there not some recourse for the

public? I suggest there should be.

Mr. Member for Prince

Rupert (Mr. Lea), you can sit here, through you, Mr. Chairman, and make

all the smart-alecky comments you want, but I would like to advise you

that the public don't think you're funny. The public don't think the

former Attorney-General is funny. And they don't think that laughing at

the concerns of the people of this province is funny. They are

concerned, and when the public become concerned and lose faith in the

justice system, then we will have anarchy. Many a person has said, and

you have heard it, Mr. Chairman, and I have, and I'll venture to say

every member of this Legislature has heard people say: "To heck with

the law. If somebody trespasses on my property and breaks into my

house, I'll shoot first and ask questions later." That is the concern,

and that is what people are thinking. We are honour-bound to address

ourselves to an avenue of expression for the public so that they can

develop better understanding of the system and so that, perhaps, the

system, as good as it is — and I believe it is a good system — can

become more responsive and be more in keeping with what, in fact, it

was designed to do.

We have a bill in this House, which I

won't touch on, in which the medical profession has asked to have a lay

person on a board which includes a government member, who will have

some input into patterns and practices of physicians. Might this not be

something that the legal profession itself would wish to entertain in

the interest of fairness, in the interest of having understanding on

the part of the public?

I don't intend to take more time of

the House and cite case after case, but I leave with you the thought

that if we, as legislators and the representatives of the people in

this province, ignore these concerns and continue to have lawyers

battle each other, disagree with each other and disagree with judicial

decisions, and have evidence of judicial decisions which vary from

region to region in one province, when our total focus is on lawyers'

fees and the fact that the first minister of justice in this province

is to have his hands tied in terms of questioning any action, then we

will be denying our responsibilities to the public. We will be guilty

when they decide they can no longer go without having their questions

answered. I would leave with you this question, Mr. Attorney-General:

would you consider, if you don't wish a royal commission, a form of a

committee in which there is broad, responsible representation? If you

wish to use a House committee, then I feel that its terms of reference

should be expanded well beyond any motion that exists before this House

at this time.

HON. MR. GARDOM: In order to avoid

disputes across the floor, maybe I can make a quick response and they

can flip a coin and decide which course they wish to take.

think all hon. members will truly appreciate that in an area as diverse

as this, we appreciate general statements, but I would much prefer —

and I think it would be much more helpful for everybody within the

system — that if you have some specific cases, and they are of great

concern to you, we would like to know exactly what they are. You don't

have to treasure them for a whole year to suddenly have them developed

chapter and verse in here, without any specific facts of the steps that

were taken and the reasons for those steps. In the majority of the

cases, the steps were appropriate. This is why we do have the kind of

legal system that we have, and it's the most appropriate of its kind in

the world. Everybody in this province, and indeed in this country, has

great reason to be proud of it.

The hon. member suggested

holding commissions to do this and that and said that there's not any

place for the public to express their points of view. With every

respect, that is not correct. This is one forum in which one can

express one's point of view. As to what is being done in it, I draw to

the attention of the hon. members that we have a national task force

which was established in 1976 at the Calgary meeting of the

Attorneys-General. That national task force is dealing with the

administration of justice throughout the province. This initiative was

developed by British Columbia and it is concerning itself with and

examining in detail the areas of police, Crown counsel, legal aid,

pre-trial services, courts and adult corrections. It's also collecting

information on juvenile services.

The purpose of the work is

to reduce the disparity in justice services throughout Canada, and

there's quite a difference between the level of justice service

throughout the country. British Columbia, I can tell you, is very close

to the top if not at the top of the pile.

The purpose of the

task force is also to develop a means to evaluate the impact of changes

in legislation on the specific services. I have just recently developed

a new initiative myself which I'm not going to refer to in detail

tonight. It deals with the Criminal Code, and I've already been in

communication with the new attorney for Canada.

additional consideration of the task force is to establish a rational

basis for sharing costs. Cost-sharing in justice services throughout

Canada has been handled in a very catch-as-can basis and is certainly

not rationalized. We wish to reduce the duplication of services and

improve the balance of services.

[ Page 493 ]

Some precise reports are on their way.

More are on their way within the next few months and with

recommendations to the deputy ministers to eventually be considered by

the various ministers in the country.

Another initiative

that was developed by British Columbia is the motor vehicle task force

committee. I know the first member for Victoria appeared on this

committee. I established that because of the complaints that have been

made by the public that they have not had an opportunity to present

their own specific positions concerning whatever the case might be or

whatever the legal involvement might be. This task force has received

the better part of 400 briefs now in submissions. It has held hearings

throughout the province. We have received an interim report. Already

it's starting to formulate some policy suggestions to government, and

I'm looking forward to the next report, which the deputy informs me

will be coming in October.

There's another area that I think

is very, very germane because there have been a number of statements

made here. I'm certainly not questioning the sincerity of them, but I

am questioning the lack of knowledge of the basic concepts before they

are made. We're attempting to do what we can to see if we can have the

justice system better explained throughout the educational process.

I'm

happy to see that I'm receiving a nod of the head from my learned

friend across the floor, because up until now in British Columbia we've

really had a paucity of legal education in the primary schools and in

the secondary schools. I have always felt it a little preposterous that

people who live in a democratic society don't receive any specific

teaching as to how the thing works according to law, according to order

and the administration of justice until they leave high school and find

out on their own or don't find out, as often is the situation, or until

they go to university and receive specialized courses or night school

or the means that is offered by a variety of agencies today.

already have some legal education in the high schools in grade 11 and

grade 12. At the present time we have a submission in front of the

Ministry of Education, which I think is a first-class submission, that

this be expanded greatly and be expanded to other grades.

think there's a great need for people to know a great deal more about

this topic, and I think that's a good way to try to bring it about.

MRS. JORDAN:

Mr. Chairman, I appreciate the Attorney-General's comments, and I have

great respect for him as an individual, as a lawyer and as an

Attorney-General. But I would suggest to you that the very attitude

that he displayed in this House is part of the problem. Don't clap so

loudly, hon. member; your Attorney-General was worse. Your

Attorney-General was one of the most unsympathetic and insensitive

Attorney-Generals we've ever had in British Columbia.

Mr.

Chairman, the law, the lawyers and the professionals are nearly always

right but perhaps not always right. I appreciate the national task

force; it's a great idea. We have all the lawyers talking to the

lawyers, and we have the judges talking to the judges, and we have the

judges talking to the lawyers, and the lawyers talking to the judges

and professionals talking to professionals. This is all of great value,

no doubt.

But I submit to you and would ask the

Attorney-General to concede that the public themselves would like to

have some input. They might be wrong, humble folks that they are, but

it's possible they might be right.

I think we have to

recognize that in questioning the responsiveness of the system, in

suggesting that perhaps it could be made more effective, we're not

tearing down the alcohol and drug program, the drinking-driving program

or the family court program. That's the problem. Every time Joe Blow

on the street, for whom this system is supposed to function and who

pays for it, tries to ask a question, he is put down. He's not very

bright. He's not very sensitive and he really needs a lot more

education. Granted he does need more education. but not everybody is

going to have the time to do this. Even with education people are going

to have questions, and they will have suggestions.

The

Attorney-General says we're going to have royal commissions rolling

around; I suggest he's got quite a few commissions rolling around now,

if he wants to put it that way. I leave with him the question again:

will he not lead in Canada? I can't give you the legal terminology for

how it should be set up and described — I'm but a humble citizen of

this province. But I'm asking you, Mr. Attorney-General, to show some

sensitivity to public concern, not to ask us to attack already good

policies or accuse the public of attacking already good policies and

programs — nobody is doing that. There is room for more. There is an

opportunity with this government now, with the new federal government,

with the position that British Columbia has taken through our Premier

at the First Ministers' Conferences, to lead the way. The

Attorney-General could go down in history as a very good man, as a man

who was not only defensive of the law and the portions of it, but who

was sensitive to the public. He could be regarded as a man who believed

so much in the strength of that system that he recognized that it could

stand scrutiny and it could stand public input. I ask you again, Mr.

Chairman: call it what the he will, but will the Attorney-General

consider the opportunity for the public?

MR. HANSON:

You see how keen we are, Mr. Chairman, to speak on this vote. I can

understand the previous speaker's comments regarding feeling somewhat

intimidated speaking on the Attorney-General's vote, because the law is

shrouded in mystique and it should be demystified. One of the things

that I would like to say at the outset is that I would like to pay

tribute to the former Attorney-General who attempted through the

establishment of the community law commission to demystify the legal

services and bring them to the people. I have some background in

representing employees in the justice system: the Legal Aid Society and

the employees at Oakalla and Wilkinson Road jail. From the observer’s

point of view I’ve seen what it's like for the employees to work in

those situations, and also for the people who are incarcerated in those

institutions. I think everyone in this House would agree that it is

outmoded to put people in boxes.

The point I want to make is

that here we have a total budget of $196 million of which $10 million

is allocated for the access of legal aid, legal services, to ordinary

people. The increase over 1978 looks to be roughly the magic 5 percent.

Here we have another situation — much like the hospitals — where we

have an arbitrary 5 percent increase over the distribution of legal

services to ordinary British

[ Page 494 ]

Columbians.

I think there are about 14 legal aid offices in the province and

roughly the same number of Legal Services Commission offices. Now I

have a question of the minister....

MR. CHAIRMAN:

Excuse me, hon. member, I just think I should bring to your attention

the fact that we are on vote 19 of the minister's office and not on

vote 25.

MR. HANSON: Well, my understanding of the

minister's vote is that it can be a broad discussion. Is that not

correct? Can I not raise general questions and make general

observations of the Attorney-General's ministry under the estimate of

the minister's office?

MR. CHAIRMAN: That would be in

order, but I think the points you are making specific to vote 25 should

be brought up when we're discussing vote 25. The general comments will

be allowed.

MR. HANSON: The observation I'm trying to

make is the general priority of legal services to ordinary British

Columbians that is reflected in this total budget. We have $186 million

for the correction system, for police, for the court services and for

the fire marshal's office. But the allocation for the community law

offices, the Legal Services Commission and the native court workers in

Elizabeth Fry to provide legal counselling and legal assistance to

women and native people is only $10 million — 5 percent of the total

vote. The point I'm trying to make is that the priorities are

upside-down. I don't know how many of the members in this House have

visited the Legal Aid Society office on Alexander Street in Vancouver,

but it is full from the time it opens in the morning till the time it

closes at night. It is full of poor people who need help. The Legal

Services Commission here in Victoria, I think on Yates Street, is the

same. The funding is not there; the funding is not expanding.

I took note of the fact that the minister made a comment that legal education is being introduced in grade 11 and grade 12.

HON. MR. GARDOM: Some of it is there now.

MR. HANSON:

However, the actual access to legal help that is so needed in the

province is not being funded. The growth of the funding is not there. I

don't have the figures right off the top of my head, but my

understanding is that the percentage of women incarcerated in British

Columbia who are Indian women is overwhelmingly the majority; the

majority of the female population in prison in British Columbia is

Indian women. Now that is a self-evident problem; that is something to

which your ministry should be addressing itself. I'm sure that the

requests of the Elizabeth Fry Society to the ministry were far in

excess of what they were granted for direct legal counselling to women

in this province.

My understanding is that the Legal Aid society and the Legal Services Commission

are going to undergo a meld. I would like the minister to advise the House of

the status of that meld, and I understand there are some questions regarding

the organization that that will eventually take. In other words, there will

be regional boards. Will those regional boards be independent of the overall

Legal Services Commission? Will they be accountable to the local citizens, or

will there be an overall guarantee of the delivery of legal assistance province

wide? I would appreciate it if the minister could answer that question for me.

would also like the minister to answer why the Legal Services

Commission vote was not expanded. Surely the minister recognizes that

is an area that has to be expanded for the delivery of legal aid to

ordinary people who cannot afford going through individual lawyers.

Surely the 5 percent arbitrary ceiling on that vote doesn't make any

sense whatsoever.

Would the minister also answer the

question regarding the future of Oakalla? Are there plans for either

the upgrading or the phasing-out of Oakalla? It has been kicked around

a lot, and I would like some kind of an update on the status of that

question.

I've just been advised I'm giving Jim Lorimer's speech.

HON. MR. GARDOM: No, you're doing it better.

HON. MR. HEWITT: Jim's asleep. Wake him up!

MR. HANSON: Jim just has his head down for a minute. [Laughter.]

MR. CHAIRMAN: The second member for Victoria continues on vote 19, please.

MR. HANSON:

The whole area of student programs, which is covered in the Legal

Services Commission, again is an area where I don't have the 1977-78

annual report. I have the 1976-77 report I'm just looking at at the

moment. I appreciate the expansion of legal education in the high

schools. However, I think that it's got to be expanded at the

university level as well, and I'm sure that out of $10 million.... I

don't have the breakdown of what student programs get, but I imagine it

is very, very small.

I would just like to underline that the

Legal Aid Society, in my judgment, does a fine job. They are

under-funded. The community law offices are under-funded; Elizabeth Fry

Society is under-funded; and native legal services are certainly

under-funded.

When you look at the proportion of Indian

people who are in prison for generally.... They are not crimes against

people, by and large; they are crimes that result from a number of

circumstances. When you look at the number of poor people who are in

jail as a result of inability to pay fines — they're not crimes against

people; they may be minor crimes against property — that is the

area.... If we're going to save money — and your government, Mr.

Minister, through you, Mr. Chairman, always espouses fiscal

responsibility, fiscal restraint — saving money — then surely there has

to be money put at the preventive end of the justice system, not at the

punitive end. We're front-end loaded with the punitive end, heavy on

the court services, heavy on the police spending and the criminal

justice division. We need more money training young people. We need to

talk to them about the justice system and give them access to proper

representation so they don't end up in jail by the mere fact that they

cannot afford legal counsel. Just $10 million out of $196 million is

not much money on the preventive end.

[ Page 495 ]

MS. BROWN: Mr. Chairman, I would like to associate, myself with the comments made by the member for North Okanagan...

MRS. JORDAN: Rosemary!

MS. BROWN:

Home at last! ...and to certainly agree with her that there is a

problem, certainly in the way in which lawyers not only speak to each

other, but in the way in which they speak to the community at large. I

suspect that what's happening is that she's suffering from having seven

lawyers in her caucus, and I think it's enough to drive her to the

nearest psychiatrist, if we could only find one for her, because it

must be quite an experience.

AN HON. MEMBER: Name names!

MS. BROWN: I know a good one, but we're not allowed to advertise.

MR. CHAIRMAN: Order, please.

MS. BROWN:

Mr. Chairman, I would be willing to settle for the Attorney-General's

thing one has to do is simply to read a piece of legislation to

understand that part of the problem why they don't understand each

other, and why no one understands them, is because they're all speaking

a foreign language which is not even understood by them.

want to speak specifically about the Testator's Family Maintenance Act.

lawyers, it says in

section 2: "For the purposes of this Act an

illegitimate child shall be treated as if she or he were a legitimate

child of his mother." Now if ever there was not a question of

legitimacy it is the relationship between a mother and her child. One

may question the legitimacy as far as a father is concerned, but only a

lawyer would seek to put in the law a statement that a relationship

between a mother and her child is a legitimate one. I thought that fact

had been biologically established many, many years ago.

But

the thing I really want to talk about in terms of this legislation, Mr.

Chairman, through you to the minister, is the fact that it does not

have very much protection in it for the second spouse in a marriage. I

want to tell the story of a woman, right here in Victoria, who was

married for 26 years to a gentleman whose first wife had died ten years

previously. He had married her and they were married to each other for

26 years, but there were no children. He had had children by his

previous marriage, but no children by the second marriage. Ten of those

26 years he was ill. He had a stroke, he lost his sight, he lost his

hearing and she had to nurse him for ten of those 26 years.

was not a very wealthy man but when he died he left the family home and

one additional piece of property, which was a fourplex, from which rent

they were living at that point because he was quite old. In his will he

left her as the sole inheritor of his estate — the family home and a

small piece of property which was worth about $80,000. His three

children by the previous marriage — one aged 54, who is married to a

mining engineer; one aged 53, who was a doctor; and one aged 48, who

was himself a mining engineer — contested the will on the grounds, Mr.

Chairman, through you to the Premier, that he had failed in his moral

obligation to provide for his children. I want to remind you that when

he died his children were aged 54, 53 and 48 respectively. There were

two males, who were both professional people, and a female who was

married to a professional person. So it was not a matter of the

children being in need. However. the children contested the will, these

three adults, on the grounds that their father had failed in his moral

duty to provide for them. I want to add. Mr. Chairman, that the father

had paid for both boys to go through university to ensure that they had

a profession. He had also seen to the education of his daughter.

The

case went through the courts for nine and a half years. For nine and a

half years it dragged through the courts. It was agreed that she could

continue to live in the family home that was hers. but the battle was

over this small piece of property, worth $80,000 at the time. which by

the time the case was over was worth more than $200,000.

The

children's argument was that she had unduly influenced their father to

cause him to leave his entire estate to her. She's been through this

piece of legislation, Bill 378, which was recently amended, and I have

been through it too and discussed it with lawyer, and also have had

several legal opinions from the one or two lawyers to whom I spoke. But

the consensus is that there is really no provision in the Act for the

contribution of the spouse to the marriage. That is the main failure in

the piece of legislation. Nowhere did the judge take into account the

26 years she had been married to this man, 10 years of which she had

nursed him because he had had a stroke and he had lost his sight and

his hearing. Also, the consensus was that a caveat is issued accusing a

person of undue pressure: the Act does not say the onus is on the

person who is challenging the will to prove there was undue pressure.

The

third question she put, and suggested that I ask the minister, was: how

long and to what age should a parent be held legally and morally

responsible for his children, or for her children as the case may be?

In fact, when the decision was finally handed down after nine and a

half years, she lost. The estate was awarded to the children. She was

allowed the family home and the decision was that she could continue to

draw the rent from this fourplex, or whatever it was. That's what she

would have as her income, but upon her death, this would revert to

these three children who, as I said, were age 54, 53 and 48. There is

absolutely no protection in this legislation. It does not take into

account the contribution the spouse makes in the marriage. And there is

no protection against the will ever being challenged, even after 26

years of marriage. I think anyone who remains married for 26 years

deserves a medal, to say nothing of an inheritance. But the fact of the

matter is that in this particular case — and it's no longer before the

courts so I can discuss it — the estate was awarded to the children

with the understanding that she would benefit from it while she was

alive, but on her death it would have to revert to them.

That

is just one of four specific issues I would like to raise. Maybe the

Attorney-General would like to respond to that before I go on to the

others.

HON. MR. GARDOM: First of all, is this in front of the court now?

[ Page 496 ]

MS. BROWN: No, no, it's settled. The kids have won.

HON. MR. GARDOM:

But they entered into a settlement. Hon. member, you're referring to a

factual situation that is unduly complicated by virtue of the

allegation of undue influence, an added ingredient comes into play

here. But under the Testator's Family Maintenance Act, the court can

make — and I'm now quoting

section 3 of the Act — such provision as it

thinks "adequate, just and equitable in the circumstances." In order

for the court to make that determination, it would have the

responsibility to hear all the circumstances, including the financial

circumstances, the contribution, the health, the welfare, the interests

of the parties involved. Those are matters open to the court to

consider.

You've mentioned there was a settlement. As I say,

it's difficult for me to comment on something I don't have the specific

facts on.

MS. BROWN: That is precisely the

section

which it was suggested should be amended to take into account — after

all of the notwithstanding, et cetera, in that

section — the

contribution of the spouse to the marriage. It's not included in this.

Her argument is that after 26 years of marriage, if the judge had taken

into account the contribution involved 10 years of nursing this man —

which, if he had to be placed in a nursing home, or whatever, would

have wiped out the estate before he died — the case would have gone

differently.

The other two recommendations had to do with

the accusation of undue pressure, where the onus should be on the

accuser to prove undue pressure.

The final question had to

do with the law in terms of the legal and moral responsibility of a

parent for children. Does it ever end? Or is it on to infinity?

HON. MR. GARDOM: Were some of the points you were making recommended by the court in its decision?

MS. BROWN:

No, no. These were the recommendations that resulted from discussing

this case with a number of lawyers, getting various legal suggestions

as to how the Act could be amended. It was suggested that those things

could be included.

HON. MR. GARDOM: It would be very

helpful for my purposes if the hon. member would furnish me with a copy

of the pleadings and a copy of the judgment in the matter. It is

certainly something we can look into, but the test within

section 3 of

the Testator's Family Maintenance Act is very broad. I find it somewhat

difficult to comprehend that the matters you have informed the House of

were not taken into consideration by the court, but I would like to

look at it.

MS. BROWN: I would be very happy to pass

this information on to the Attorney-General afterwards. I agree with

him that it takes into account the needs of the spouse; but it doesn't

take into account the contribution the spouse made to the union. It

takes into account the need. If the spouse needs it, it's fine. The

judge did that. But it wasn't based on the contribution which the

spouse made to union, and that's the amendment we're suggesting.

HON. MR. GARDOM: Did it go to appeal?

MS. BROWN: It went to the supreme court.

HON. MR. GARDOM: Of Canada?

MS. BROWN: No, of British Columbia. It went to the supreme court. Is that the right thing?

HON. MR. GARDOM: No, that's the first step.

MS. BROWN: Oh, that's the first step. It's over anyway. But on behalf of future second spouses....

HON. MR. GARDOM: I'm very happy to give you a complete answer to that one.

MS. BROWN:

I just wanted to raise a couple of other things. The member for

Coquitlam-Moody (Mr. Leggatt) touched on the Family Relations Act, and

I wanted to ask the minister for one statement, for the record, and

that is: are decisions now being handed down under that piece of

legislation safe, are they protected, or is it possible that any future

amendments or changes as a result of his asking for a constitutional

question might in any way damage any of the decisions presently being

handed down? That is really the basis of concern about the Family

Relations Act.

HON. MR. GARDOM: My advice, Madam Member, is that the answer is no.

MS. BROWN: Okay. I have two very brief and quick comments.

The

Lynda Williams Home, Mr. Chairman: it seems every year I make the same

speech over and over, and so I thought I would read last year's Hansard

into the record, because nothing has changed since then.

Once

again the Lynda Williams Home is threatened with closure. It is the

only halfway house for women. It is the only one. Why is it that every

single year we have to go through this exercise to stop the

Attorney-General from threatening to close down that home? There is no

other halfway house. There are two halfway houses for men that I am

aware of — there may be more. But the Lynda Williams house is the only

one for women.

The rules governing it, as far as the

municipality is concerned, have recently been changed. They have been

relaxed so that women with drug-related offences can use the Lynda

Williams Home. They can stay there during their process of

rehabilitation, while they are gradually entering the workforce again.

Yet once again we find the Lynda Williams Home is being threatened with

closure.

There is a pile of mail — these are all carbon

copies, and I know you have received them all, Mr. Attorney-General —

from various and sundry people asking once again to save the Lynda

Williams Home.

This is a Hansard of 1978. I can go back to

the Hansard of 1977, and read you your estimates, Mr. Attorney-General,

where I stood on my feet and begged, please, for the Lynda Williams

Home. I am doing it again in 1979: will you save the Lynda Williams

Home?

HON. MR. GARDOM: The hon. member was a little

more impassioned when she spoke about this before; but I informed her

then, and she agreed thoroughly with me, that it would have to be

looked at from the viewpoint of

[ Page 497 ]

cost-benefit.

It was looked at from the viewpoint of cost-benefit. I'm happy to say

that the use has gone up. The board of variance in Vancouver has

altered the qualifications for occupancy. The use is up about 20

percent, with the net result that the per item cost is down about an

equivalent amount. It is open and it is going to continue to be open on

that kind of a basis.

But should it prove to be the case

that it would not be effective and it would be a waste of taxpayers'

dollars, I think everybody would agree that it or any other

organization would have to have another look taken at it. But that's

not the situation today. This was a recommendation of the Proudfoot

commission, and I remember you speaking to me early on about that, and

I said: "No, we're going to do what we can with it." And it's still

open.

MS. BROWN: It's not the kind of resource that

can be tied to cost-effectiveness. It is not the kind of resource that

can be measured in terms of dollars and cents. It is a resource which

has to be supported because it is needed. It meets a need in the

community. It should not be operated in terms of how many people use

it. We're not going to go out and encourage crime among women to keep

up the occupancy of the Lynda Williams Home so that it can remain open;

that doesn't make any sense.

This is what I am saying to the

Attorney-General. It's the thinking that is at fault, and that's the

reason why every year the Lynda Williams Home is jeopardized. When the

crime rate among women goes down, there's a threat to close the Lynda

Williams Home. It is the only halfway house for women. As long as it

remains the only house, it has to remain open and we should thank God

that it's not being used a lot — it means that the crime rate is going

down.

We shouldn't be going out trying to increase the

business of the Lynda Williams Home, trying to keep women in crime in

order to keep the Lynda Williams Home open.

I'm hoping

that, under the estimates of the Attorney-General in 1980.... Mr.

Chairman, I wonder whether the minister has read the report done by

the United Way for TRACY, the community group, about the sexual abuse

of children in the Vancouver area. Has the Attorney-General received a

copy of that particular report?

HON. MR. GARDOM: Yes.

MS. BROWN:

Mr. Chairman, I would be interested in the Attorney-General's response

to the comments in the report about the ineffectiveness of the child

protection laws of the province and the failure of those laws to

protect the children of this province against sexual abuse. The report

quotes statistics that speak about children being used as prostitutes

from the age of 7, about children being owned by pimps and about the

failure of the laws of the province to protect these children. The

report talks about the fact that when the issue is raised we are told

that prostitution is covered by the Criminal Code, and that only

Criminal Code amendment can deal with this.

But I am

speaking to the Attorney-General, Mr. Chairman, as the chief law

enforcement officer of this province, who is responsible for the

protection of the children of this province, and ask him whether he

agrees with the report that there is absolutely nothing he can do to

protect the children of this province from being abused sexually by

people. Would the Attorney-General respond to this, please?

Mr.

Chairman, I am going to deal at greater length with this, unless I can

get a response from the Attorney-General. Are you saying, Mr.

Attorney-General...?

MR. CHAIRMAN: Order, please.

The member for Burnaby-Edmonds resigned the floor and took her chair.

The Chair now recognizes the member for Burnaby-Willingdon.

MR. LORIMER: I'll release my spot, Mr. Chairman.

MR. CHAIRMAN: The member for Burnaby-Willingdon defers to the member for Burnaby-Edmonds. Please carry on.

MS. BROWN: Thank you, Mr. Chairman, and when I sit it should never be taken as a sign of resignation.

Mr.

Attorney-General, the child protection laws of the province are the

ones which are being discussed by us at this time. Would you respond to

the accusation in the report that these laws are inadequate and in fact

cannot protect the children of this province against sexual abuse?

HON. MR. GARDOM: I am waiting for some material.

MS. BROWN:

You are waiting for some material? Okay, I appreciate that, thank you.

I will release my spot to my colleague for Burnaby-Willingdon. Thank

you.

MR. LORIMER: Mr. Chairman, I want to assure the

Attorney-General that I don't intend to ask him any legal questions or

anything of that sort that might tax him. I'll leave those sorts of

questions to the lawyers in the assembly.

I want to deal

basically with the real old chestnut of Oakalla. This is the first

opportunity I've had to speak to a different Attorney-General on the

problems of Oakalla, the problems of an institution lying in the centre

of a metropolitan area. built somewhere around 1910. It was built to

confine prisoners and for basically, in those days, no other purpose.

Although there have been additions made to Oakalla, the buildings

themselves have changed very little, and the programs at Oakalla are

still confined by the buildings themselves. We have what you might say

is not a very model prison in the 1970s. It may have been a reasonable

one 70 years ago, but today it has to be replaced.

I want to

review the recent history of Oakalla and the Attorneys-General

involved. You will probably all remember Mr. Bonner, who in the early

1960s announced to the newspaper and everyone else that the Oakalla

prison would be phased out within ten years. The ten years passed and

nothing much happened as far as the removal of Oakalla from the centre

of the metropolitan area.

MR. MACDONALD: What about Peterson?

MR. LORIMER:

Well, then he came along next, and he was going to carry out the

promises of his predecessor. To give Peterson his due, he did do some

phasing out. You remember there used to be 12 Clydesdales that used to

go in the PNE show. They were housed in the farmlands in

[ Page 498 ]

Oakalla.

Do you know what the Attorney-General of the day, Mr. Peterson, did? He

moved the Clydesdales to Fort Steele. The member here for Kootenay (Mr.

Segarty) has the pleasure of seeing the Burnaby Clydesdales. They're

very fine horses. The Clydesdales were in Fort Steele and the phasing

out program was well on its way.

However, during the term of that Attorney-General they spent about half a million

dollars on the construction of a new piggery, so that we could see then that

the phasing out of the Clydesdales was merely a sham. We told the people of

Burnaby that the phasing out wasn't taking place, it was merely a removal

of the Clydesdales to Fort Steele. After the loss of Mr. Peterson to this House,

we had a new Attorney-General. He's still here, the second member for

Vancouver East (Mr. Macdonald), I believe.

AN HON. MEMBER: The one who fired the Green Hornet. [Laughter.]

MR. CHAIRMAN: Order, please.

MR. LORIMER: The one who should have fired the Green Hornet. That's the one.

But you know, I was sure that everything would be all right, that things would progress in an orderly manner.

You know, I did get his attention after two years. [Laughter.]

MR. HALL: You went to a tennis court one evening.

MR. LORIMER: No, that's not correct. I didn't catch him on the tennis courts.

But

in any event, we did have good progress. We did obtain a guaranteed

agreement to lease, signed under the seal of the province of British

Columbia for the transfer by lease to the municipality of Burnaby for

100 years.

The lease itself was to be signed within one

year. You may remember under your term of office, Mr. Attorney-General,

that that lease was not signed within the year. I don't know if you

remember that but one year went by and the lease was not signed. A

second year went by and the lease was still not signed. A third year

went by and a committee was set up to look into what should be done

with Oakalla lands after it had all been decided and after it had all

been resolved.

However, this committee met for some reason

or other, and I'm sure that you wouldn't guess when the lease was

finally signed. It was signed on May 10. Do you know what that was?

Election day.

All I can say is that the people of Burnaby

were not fools. They realized that they had been deprived of the use

and the value of this park. They knew they had been deprived by the

Social Credit government for three years by you, Mr. Attorney-General.

You deprived the citizens of Burnaby, the citizens of the lower

mainland, of the use and enjoyment of this 160-odd acres — even lakeside acres.

You, Mr. Attorney-General, could have had that

deeded over to Burnaby three years ago but there was delay, delay,

delay. You were trying to get a little bit of political advantage by

the delays, and the obvious result was that the advantages that you

received were somewhat limited.

I must say there was

something the four Attorneys-General that I mentioned had in common

with the municipality of Burnaby: they had their QCs and Burnaby has

their Oakalla.

When, Mr. Attorney-General, are we going to

get rid of that thing? When are we going to get it moved? It's getting

pretty late in the history of prisons in this province, and I want to

know when it's going to be removed.

Now I'll sit down and

wait for your promise and commitment. The other Attorneys-General

such as Mr. Bonner and Mr. Peterson didn't mind promising.

Interjections.

MR. LORIMER:

Well, he did something. The last Attorney-General did something; he got

rid of three quarters of it at least, but you haven't got rid of any of

it. Now it's your turn and I would suggest that you tell the House that

after some 60 years, this prison will be removed from Burnaby.

HON. MR. GARDOM:

My colleague, the Minister of Health (

I'm hoping that, under the estimates of the Attorney-General in 1980, phaplMr.

Chairman, I wonder whether the minister has read the report done by the United

Way for TRACY, the community group, about the sexual abuse of children in the

Vancouver area. Has the Attorney-General received a copy of that particular

report?

Hon. Mr. McClelland), wants the

Clydesdales back. I guess you can't produce that, but I would like to

say to the hon. member that there have been a multitude of commitments

for the phasing out, the removal and the disposition of Oakalla. There

has been just about every kind of suggestion one can think of, even to

suggesting that it should be moved into the tundra, and we should send

all of the incarcerated people up there via 747s, which we all know is

a complete impossibility.

We have committed ourselves as a

government, and I'm very happy to say that we have produced. We've

committed ourselves as a government to the phase-out of Oakalla, and

I'm not going to be stupid enough to stand up tonight and tell you that

Oakalla is going to vanish tomorrow or the day after tomorrow, because

it's not going to happen that way and you know that as well as I do.

We've committed ourselves to reducing the problems in Oakalla.

We've

committed ourselves to a 150-bed remand centre at a cost of some $18

million, to be established in Vancouver. We're able to say that great

progress has been made there. This is not a promise; this is a reality.

Treasury Board funds have been committed, drawings are underway, and

once we're in the position to start construction, construction will

start. So that is, without question, going to be the initial step in a

phase-out of Oakalla.

It would not be possible, sir, or

prudent or responsible for me to say to you this evening: "Yes, within

a year there's going to be another 150-bed remand centre developed in

the lower mainland." But I can assure you we are looking very carefully

at the development of additional remand centres in the lower mainland.

Once again, that will be a step toward the phase-out of Oakalla.

I can say that we have made some progress. The date of May 10 was news

to me; but I agree with you that it certainly does not seem the most

appropriate kind of timing, and if it was timing that was supposed to

produce results....

Interjection.

HON. MR. GARDOM: Are they questionable results? How would you describe them? I suppose....

Interjections.

[ Page 499 ]

HON. MR. GARDOM:

There is something now in the NDP tank that has been lacking for three

years. That's what your colleague is saying over there, hon. member.

But

that's where we are with Oakalla, and steps have been taken. Yes, I

agree, it is an outmoded facility, particularly in the men's area. A

number of recommendations were made by Madam Justice Proudfoot in her

inquiry into the ladies' section, and the bulk of those items have been

attended to and are still in the process of being attended to at this

point in time.

MR. LORIMER: I am gratified by the

remarks of the Attorney-General. He says he's not sure that he can

stand in his place a year from now and say: "It's been done." But I can

assure him that I'll stand in my place and repeat my speech a year from

now, as I have in a number of years in the past; but I'm hopeful that

it will not be necessary to do so.

MR. STUPICH: Mr.

Chairman, we're facing a very specific problem in Nanaimo, and that is

the provision of detention facilities, or the need to expand those

facilities. The need is created in part by people who are not

necessarily charged in the community of Nanaimo but are charged in

other communities and are incarcerated in Nanaimo, at least

temporarily. I understand the community is reimbursed for the time that

they are there. But it's falling on the city of Nanaimo to provide

additional facilities, and the capital cost of providing these

additional facilities that are used in part for people who are

temporary prisoners from other communities, who are charged in Nanaimo

and who are incarcerated in Nanaimo.... Nanaimo has to provide the

capital facilities to house these people and is running short of space

and is facing heavy expenditures to increase the jail facilities.

That's the problem as I understand it.

MR. MACDONALD:

Mr. Chairman, while the Attorney-General is preparing a reply to the

member for Nanaimo, there are two things I want to ask him.

There

was a reference by the federal government some time ago on a very

important constitutional point in Canada, which I brought up, I think,

in question period about six months ago. That was on the right of the

federal government to change the constitution of the Senate of Canada —

you know, whether it would be elected, appointed by the provinces,

appointed this way, appointed that way, abolished, or whatever it might

be. I'd like the Attorney-General to say why he wouldn't intervene in

that case.

[Mr. Rogers in the chair.]

HON. MR. GARDOM: I'll read you Hansard . It's in there for four pages.

MR. MACDONALD:

Oh, I read the whole answer. But I think it was very regrettable. I

don't say that the government should intervene in all of those cases. I

know it costs money and so forth. But here, surely, is something that

touches.... If ever there was a bedrock situation of the Canadian

constitution, this was it. I think British Columbia should have been

there with a position. I read the Attorney-General's answer. I don't

know whether he believes the federal government should have the power

to change the setup.

HON. MR. GARDOM: It does today.

MR. MACDONALD:

Well, that was the question that was before the court. I don't think

for one minute that the federal government should have the power to

change the basic constitution of Canada without any say from the

provinces. Now that was the reference, and there's been no decision

from the Supreme Court. The hearing's been over.

HON. MR. GARDOM: Then you shouldn't be speaking about it.

MR. MACDONALD:

I'm not speaking about the merits of the case. I'm speaking about why

British Columbia was silent on a major constitutional point.

HON. MR. GARDOM: We went through that before.

MR. MACDONALD:

All right. I think you could give your explanation again and I think

we'I all go home without understanding a word of it. because I did read

the four pages of Hansard when you gave your previous answer, and I

couldn't understand whether you were in favour of the federal

government having that unilateral power. Was that the position of the

government of British Columbia, or did they think that the provinces

had a say in the composition of the Senate? I would certainly think

they ought to have.

Now the other point I want to bring up

that the Attorney-General might be able to answer before 11 o'clock

relates to childnapping. I'm not going through the old case in any

great detail, but the classic case was the McFayden case, as the

Attorney-General knows. There the mother up in Cawston had a custody

order for her three children. There was a divorce pending, but there

was a court order which gave her custody but allowed the father to

visit and bring the children back at 5:30 in the evening on certain

days.

The father came alone, and after a scuffle he pushed

two of the children into the car. The older boy escaped and the other

two children have not been seen or heard from since. The following day,

which was July 10, 1978, the RCMP charged the father under

section 248

of the Criminal Code, as it then was, with unlawful abduction of the

children contrary to a custody order. That section, incidentally, has

been strengthened in the meantime by the federal Parliament, but it was

there and it was a criminal charge laid by the RCMP against the father.

Then

the RCMP located the children in the skid row area of San Francisco.

They appealed to the Attorney General’s office to authorize extradition

— that is to say. a crime had been committed and they should be allowed

to pick up that father and to recover the children through the FBI. The

Attorney-General's office sent a Telex to the RCMP up in Osoyoos,

saying that the policy of the Ministry of the Attorney-General was that

it was a family matter and that the family could speak to the U.S.

Immigration authorities, who don't really look for children who have

been abducted from their lawful, in this case their mother's, custody;

or they could take civil action, which is a ridiculous suggestion to

make in the circumstances, because they would bounce around from one

state to another. What

[ Page 500 ]

mother

suffering the abduction of her children could possibly take civil

action, first in California, then somewhere else, as the father moves

around with the children and evades one civil order after another? It

would cost thousands and thousands of dollars and be non-productive.

the two things that the Attorney-General said in that Telex — that it

was his departmental policy not to authorize extradition in those

cases, but that they should rely on a civil remedy and the U.S.

Immigration authorities — were of no comfort whatsoever to the mother.

The children had disappeared and they're gone to this day.

say first to the Attorney-General — through you, Mr. Chairman — that in

these very serious cases where children have been kidnapped, which is

the case here — it's true it was the natural father; but it was

contrary to a custody order, and that natural father had a record of

weapons offences and violence, and they were living in the skid row

area when they were found in San Francisco.

I say that to

lay down a general policy is a terrible mistake and dereliction within

the Attorney-General's office. When one of these cases comes to the

Attorney-General’s office he should, with his deputy, work out the best

strategy for that particular case. At that time we had a letter from

Marc Lalonde, the Minister of Justice in the federal government, saying

have forwarded it to the State Department in Washington.

There's

a new development in the case. The U.S. government, through the State

Department, has taken the position, according to the information the

mother has received — the children are still gone — that they will not

Attorney-General's department did change its policy, and did ask for

extradition, so the FBI could get on the case and not just Immigration.

I'm

thankful that this policy has been changed, but now we have the

situation that the state department in Washington, D.C., advises that

they would not get involved in this case since it involved family

members saying the matter should be pursued in a civil court. They

would not act on B.C.'s request for extradition. What that means is

that if the criminal offence isn't carried over with the person being

sought as a wanted criminal in the United States, that person is not

likely to be found. Immigration doesn't go looking for him, and a civil

remedy is ridiculous.

I think that in these circumstances

the Attorney-General should follow this matter up because child

kidnapping across international boundaries is a fairly common thing.

When it happens there is untold anguish for the parents and untold

destruction in terms of the personality of the children. I think the

government of the United States has taken a very wrong position in this

matter. Had the husband, who is Mr. McFayden, robbed a bank of $500 in

British Columbia, and had the RCMP then laid a criminal charge — as

they did in the child case — then extradition would follow naturally in

the ordinary course. The FBI would have put that husband on the wanted

list, and he would have been actively sought and the children would be

recovered. But when it is the theft of children from a mother in lawful

custody, children tossed around from one state and one skid row in the

United States to the other, then the State Department in Washington

says to the government of British Columbia: "Oh, it's just a family

matter. Take civil proceedings...." I say that's totally wrong where

children people are involved. There is nothing, no cooperation, even

though both were provided for under the Criminal Code in

section 248.

If it was theft of property, extradition would follow in the normal

course, and the full forces of the law enforcement agencies in the

United States would be brought to bear to find those children and to

return them to the mother.

What I would like the

Attorney-General to do tonight is to stand up and say that he disagrees

with the kind of attitude that the State Department in Washington has

taken and that he intends through the federal-provincial conferences of

the Ministers of Justice and the Attorneys-General of Canada to make a

this kind of action on the part of the State Department. If we put into

our Criminal Code the theft of property as an indictable and

extraditable offence, why should not the theft of children be also in

there as an indictable and extraditable offence? And why should not our

great neighbour to the south respect that decision of the government of

Canada?

I ask the Attorney-General to comment about the

attitude of the State Department of the United States. I say no more

about what has happened in the past because the children are lost.

While I have criticism, I'm now asking about the future. I say that

that kind of kidnapping of children across international boundaries

should be a matter of concern to this government, to the Ottawa

government and to the State Department of the United States.

HON. MR. GARDOM:

Dealing with this specific issue and its impact, not only, of course,

in the United States and Canada but throughout the world, this was a

matter that was under consideration by the International Law Advisory

Committee in its meetings in The Hague earlier this spring. The

province of Ontario was represented at that and indicated the views of

the various provinces in Canada, and the view to having the American

authorities change their policy.

It's a matter that we

consider to be serious. It's one that we're giving a great deal of

study and concentration to, and it has been placed upon the agenda to

be considered at the next provincial-federal attorneys meeting which

will be held in Quebec City early in September.

The hon.

member for Nanaimo (Mr. Stupich) asked me a question concerning the

non-existence of remand facilities in the upper Island. Their need is

being examined by the ministry at this time.

We are fully

aware of the potential growth of need in the upper Island, and we hope

to be able to act in an effective and proper manner to respond to that

need. I think one can quite readily say we're better in having in the

long run a facility there than transporting from the northern Island

down to Wilkinson. So that's the general direction we're going. I

cannot give you a specific tonight. No, I really couldn't give you a

date as to the point of final submission. We've not yet gone through

the specific committees of cabinet on the final submission nor to

Treasury Board, but we're on the way.

I have to answer the second question. I'm sorry I don't have that right now.

Interjection.

HON. MR. GARDOM: You're talking about the capital cost of that remand.... Well, the capital cost of the remand

[ Page 501 ]

facility in Vancouver is paid out of consolidated revenue by the general taxpayer; so conceivably it will be a similar route.

MS. SANFORD:

I have a very brief question to the minister, but I do hope that he in

his last answer to the member for Nanaimo (Mr. Stupich) was not trying

to give the impression that Nanaimo is upper Island.

HON. MR. GARDOM: No, no.

MS. SANFORD:

All right. Thank you, Mr. Chairman. It is not the centre of the Island.

I wanted to inform the House that the centre of the Island is Campbell

River: that's the central point.

MR. CHAIRMAN: Order, please. Perhaps the argument could be dealt with in another forum.

MS. SANFORD:

I did want to ask the Attorney-General, though, about a letter I wrote

to him a couple or three weeks ago regarding the tragic death of two

four-year-olds in the Comox area, who became trapped in an abandoned

refrigerator. A number of recommendations came from the coroner's jury

with respect to actions the provincial government might take to avoid

future deaths of this type. In any case, I did write to the

Attorney-General about this and I know he has now received a report

from the coroner's jury. I'm wondering whether or not the

Attorney-General plans to take any action on the recommendations. The

recommendations, Mr. Chairman, included a general education program

throughout the province on the dangers of fridges and freezers left

where children can get in and just simply cannot get out again.

The

parents of one of the children, Mr. Chairman, moved into a new home

within a couple of weeks following the death of their four-year-old,

and found to their horror that on the neighbouring property was another

abandoned fridge. I think the fact that this does happen from time to

time in this province indicates that some action should be taken

through the Attorney-General's office. I'm not sure that legislation is

the answer, but certainly an educational program of some type, I think,

is warranted.

HON. MR. GARDOM: I thank the hon.

member for her comments, and also for bringing the case to my

attention. I have not yet personally had the benefit of reading the

recommendations of the coroner. I understand, though, that it was an

excellent inquest and he did a very good job. The recommendations are

certainly matters that we will give very fulsome consideration to.

am just now grasping in my mind here. but I do believe that legislation

that would fit those particular facts is existent in some states in the

United States. I can't put a finger on it tonight, but it is a matter

that we're looking into, and certainly it is fully deserving of fulsome

study and consideration.

The House resumed; Mr. Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

Presenting Reports

Hon. Mr. Nielsen presented the 1978 report of the superintendent of insurance, the 67th.

Hon. Mr. Williams moved adjournment of the House.

Motion approved.

The House adjourned at 10:57 p.m.

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