1982 Legislative Session: 4th 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)

WEDNESDAY, MAY 19, 1982

Afternoon Sitting

[ Page

7669 ]

CONTENTS

Routine Proceedings

Tabling Documents

British Columbia Hydro and Power Authority financial statements, 1981-82.

Hon. Mr. McClelland –– 7669

Oral Questions

Legal aid in family cases. Ms. Brown –– 7669

Borrowing by school boards. Mr. Hanson –– 7670

Bankruptcies of small businesses. Mr. Lea –– 7670

Tax notices. Mr. Stupich –– 7671

Northeast coal. Mr. Leggatt –– 7671

Court of Appeal Act (Bill 2). Second reading. (Hon. Mr. Williams)

Hon. Mr. Williams –– 7672

Mr. Macdonald –– 7672

Mr. Lorimer –– 7672

Mr. Lauk –– 7673

Ms. Brown –– 7673

Mr. Levi –– 7674

Mr. Leggatt –– 7679

Hon. Mr. Williams –– 7681

Municipal Expenditure Restraint Act (Bill 32). Committee stage.

(Hon. Mr. Vander Zalm)

section 2 –– 7682

Mr. Barber

Mr. Mussallem

Mr. Lorimer

Ms. Brown

Mrs. Dailly

Hon. Mr. Phillips

Mr. Howard

Mrs. Wallace

WEDNESDAY, MAY 19, 1982

The House met at 2 p.m.

Prayers.

HON. MR. WOLFE: We have a special

group of students visiting us today. Seated in the gallery are 50 grade

10 students from York House School in Vancouver. Attending later this

afternoon will be another 50 grade 8 students from York House School.

I'm sure they've been told to expect exemplary behaviour from members

of this House, who will be their usual quiet, diplomatic selves. I'd

ask the members to make these students welcome.

HON. MR. HEWITT:

I've two introductions today. First of all, Mr. Ken Davis from CKOK

Radio, Penticton, and a former Fraser Valley resident whom I'm sure you

know quite well, Mr. Speaker. We also have 28 grade 6 students in the

precincts from Okanagan Falls Elementary School, accompanied by their

chaperones and their teacher, Mr. A. Forsey. I'd ask the House to make

them welcome.

HON. MRS. JORDAN: I am pleased to say

that we have in the precincts now — and will later in the gallery –– 48

of the brightest grade 7 students. Naturally, they come from Vernon and

district — Silver Star Elementary School, to be precise — and I would

like all MLAs to join with me in welcoming them and their four

teachers: Mr. Phil Mickelson, Miss Pam Metcalfe, Mr. Jim Inglis and Mr.

Al Hooper. They're on tour now and I'd ask you to extend them a very

warm welcome.

MR. KEMPF: In the gallery this

afternoon, visiting from Fraser Lake and Endako, representing the

Mining Association of British Columbia, and meeting here in Victoria

are Mrs. Irene Dodge and Mrs. Joan Macdonald. I would ask the House to

make them very welcome.

MS. BROWN: Mr. Speaker, there

are two visitors in the gallery today, Mrs. Helen Porret from New

Westminster and Mrs. Agnes Orr from Burnaby. I would ask the House to

make them welcome.

MR. RICHMOND: Mr. Speaker, in your

gallery told and also from your home city of Chilliwack is well-known

British Columbia broadcaster Mr. Dennis Barkman. I would ask everyone

to make him welcome.

HON. MRS. McCARTHY: Mr. Speaker, I'm so pleased today to ask our

members to welcome an outstanding citizen from Vancouver Centre. She is a life

member of our Social Credit Party and an outstanding citizen of British Columbia,

Mrs. Annie Hughes.

HON. MR. McGEER:

Mr. Speaker, this afternoon we've got Mr. John Patterson,

vice-president of the engineering technologists society, and Mr. John

Leech, the executive director of that organization. Accompanying them

is a figure familiar to this House, Mr. Jim Bennett, my former

executive assistant.

MR. DAVIDSON: Mr. Speaker, visiting us today are three of the Dispensing

Opticians Association of British Columbia: Mr. Peter Card, Mr. Robert Hunkin

and Mr. Robert Dodds. I would ask the House to make them welcome.

HON. MR. McCLELLAND:

I'd like to file the financial statements of the British Columbia Hydro

and Power Authority for the year 1981-82. This is required, of course,

but it is a bit unusual because I'd like to file them today without the

annual report, which won't be ready until sometime in June. The British

Columbia Utilities Commission has requested information regarding B.C.

Hydro's financial statements, and it's not possible for Hydro to make

those available until they've been filed with the House, and rather

than wait until June, so that the commission can have the information

as quickly as possible we would file at this time. I don't know whether

or not I need leave; I would doubt it, Mr. Speaker. I'd like to file

those separately at this time.

Oral Questions

LEGAL AID IN FAMILY CASES

MS. BROWN:

Mr. Speaker, my question is to the Attorney-General. It has to do with

yet another of those memos he sent out on April 23. This particular

memo was addressed to all counsel who act for the family law and social

services section, and spells out policy changes for 1982-83. Why has

the Attorney-General decided to limit the provision of legal assistance

under the Family Relations Act to only those persons with children who

have suffered physical abuse or who are fearful of physical abuse?

HON. MR. WILLIAMS:

The provision of legal aid — and that's what it is — to people involved

in family-law matters has for some years been an open-ended program. As

a consequence of examinations made into the steadily and rapidly rising

cost of that program, it was deemed appropriate that some rules be

established, based upon which we may assess the effectiveness of the

program and the likely future cost of providing the services required.

Therefore guidelines were established for the very first time with

respect to this aspect of legal aid. As we gain experience, those

guidelines may be subject to adjustment.

MS. BROWN:

If in fact it's the cost of the legal aid that the minister is

concerned about, why was the decision made to cut off services, for

example, to those battered women who have no children or to those poor

women with children who are not battered, rather than simply remove

those lawyers from the roster who were abusing the system? Does it make

sense to penalize the victims rather than the lawyers themselves?

HON. MR. WILLIAMS:

The victims are not to be penalized under this particular matter. It is

a matter of the discretion which is available to people who function

within the family-law system. The cases to which the member refers will

be dealt with by the ministry on a case-by-case basis.

MS. BROWN:

The other guideline has to do with the decision to deny legal counsel

to children over the age of 12. An experienced family advocate has

indicated that most of the children over the age of 12 who have used

the legal advocacy system were involved in sexual abuse cases. Can

[ Page 7670 ]

the

Attorney-General advise the House why the decision was made to cut off

legal services to this particular group of people in our society —

children over the age of 12?

HON. MR. WILLIAMS: For

the precise reason that I gave in answer to the first question: so that

we can begin assessing the nature of the requests for legal assistance.

In cases such as those to which the member refers, the system will

accommodate those who are in need.

BORROWING BY SCHOOL BOARDS

MR. HANSON:

Mr. Speaker, I have a question for the Minister of Education. As a

result of Bill 27, the Education (Interim) Finance Act, many school

districts in British Columbia are facing a serious cash flow problem

and are being forced to borrow millions of dollars to meet operating

expenses. The Victoria School Board is now paying $4,500 a day in

interest charges on a $10 million loan, just to meet operating

expenses. What action has the minister decided to take to ensure that

his ministry makes payments to the school boards on time?

HON. MR. SMITH:

The problem of borrowing for this year is one we're aware of, and we

have been dealing directly with the school boards, municipalities and

Minister of Finance. Now that the bill has passed and the tax notices

are out, I do not expect the problem to be a continuing one. As to

adjustments during the borrowing period, I've been dealing with my

colleague, the Minister of Finance, on that, and I'll have further

information later.

MR. HANSON: I have a supplementary

question. Is the minister aware that three days' interest on this loan

would hire a teacher's aide for a, year, and a week's interest would be

a teacher's pay for an entire year? Why is this money being spent to

enrich the banks, and not on the education of children in British

Columbia?

Every time the school boards around the province

ask the Ministry of Education where the funding is that is supposed to

be allocated on a certain interim payment basis, they're told it's in

the mail. When will the school districts get this money?

BANKRUPTCIES OF SMALL BUSINESSES

MR. LEA:

I have a question to the Minister of Industry and Small Business

Development. Various organizations, including the Canadian Federation

of Independent Business, have requested provincial legislation similar

in principle to

chapter 11 of the American bankruptcy code to provide a

breathing-space for small businesses facing foreclosure. Has the

government decided to implement such a measure in the province of

British Columbia?

HON. MR. PHILLIPS: Mr. Speaker, I'd

like to say that the question is out of order because it may involve

future legislation and future policy. However, I'd like to assure the

member for Prince Rupert and other members of the House that indeed I

am looking at a way in which this government can be of some assistance

to the small business community — the backbone of the business

community of British Columbia, I might say. When we move forward I want

to assure that member that it will be done properly, that it will be

something of assistance to the small business community, and that will

involve the banking system of British Columbia, the federal government

of Canada and our government. When I do something I want to ensure that

it is done right and proper, the same way this government has moved

forward in all its policies in the past.

MR. LEA: I

didn't ask about future policy, Mr. Speaker, or you would have stopped

me. What I asked was, is it the government's policy now — you've made

up your mind — that you're going to act on a policy of implementing a

program that would give some breathing-space to the small business

community when facing foreclosure by the banks? There has been a poll

of the small business community where 67 percent of the people in the

small business community agreed that we need such legislation and we

need a program. Has this government decided, and is its policy, that

the government is going to do something about it and not blame the

federal government, because it can be done without the federal

government at the provincial level? Is it this government's policy to

do something about this problem facing the small business community now?

MR. SPEAKER:

Order, please. The member's first question, "Has the government

decided?" is in order. The question bringing information to the House

is out of order.

HON. MR. PHILLIPS: I am not aware of

the survey the member is talking about other than a group of socialist

MLAs who went around the province posing as a committee of cabinet to

do a survey on the small business community.

I would also

like to say that this government has given a great deal of assistance

to the small business community in relieving some of the onerous

taxation which was brought on the small business community during the

years 1972-75 when the socialists were in government. We have had to

bring in policies to alleviate that burden. There were a number of

taxes which were practically putting the small business community out

of business. In the past years we have brought about a climate in

British Columbia in which the small business community could indeed

flourish. As I explained to the member for Prince Rupert, the matter is

certainly under active consideration. When we move we will do it

properly.

MR. LEA: I have a final question to the

minister. Is the minister aware that the socialist MLAs and members he

is talking about consist of John Bulloch, the president of the Canadian

Federation of Independent Business, and Barbara Morrison, the

representative here? The survey was done through their magazine called Mandate . It had nothing to do with the committee we started but was done by the Mandate magazine. Are you aware of that?

MR. SPEAKER: Order, please. Was there a question there, hon. member?

HON. MR. PHILLIPS:

I'd like to say, Mr. Speaker, that I didn't think the committee that he

and his socialist friends formed would be of much value to the small

business community.

[ Page

7671 ]

TAX NOTICES

MR. STUPICH:

I have a question to the Minister of Education. He said in response to

a previous question: "...now that the tax notices are out." I am a bit

puzzled. I am not aware of any tax notices that are out, and I will be

very surprised if they are out by May 19.

HON. MR. SMITH:

They go out at different intervals within the next several weeks. I am

informed that some of them are out and others are ready to go out. I am

not the Minister of Municipal Affairs. Maybe you would like to direct

the question to him.

MR. STUPICH: Does the minister know of any municipality where the tax notices are out? Can he name one?

HON. MR. FRASER: I've got mine already.

MR. STUPICH:

I was talking about 1982 taxes. I know some ministers are in the habit

of not paying their taxes currently, but we're talking about 1982.

NORTHEAST COAL

MR. LEGGATT:

My question is directed to the Minister of Industry and Small Business

Development. The chairman of Nippon Kokan, Hisao Makita, said recently

it is unlikely that Canadian mines will get any additional contracts

beyond those already signed with mines in B.C. and Alberta. He is

speaking for the Japanese steel industry, just so the minister is sure

we've got the right person. In view of this, will the minister advise

whether he has any signed contracts with any countries other than Japan

for coal out of the northeast sector?

HON. MR. PHILLIPS: The member, as usual, is wrong.

MR. LEGGATT: John Bulloch's a socialist, right?

HON. MR. PHILLIPS:

I don't sign, nor does this government sign, coal contracts with any

steel industry anywhere. This government promotes policies and says

that British Columbia is in the coal business, then leaves the signing

of contracts to the individual coal companies. That's the individual

enterprise way of doing it.

Further, with regard to Mr.

Makita's recent remarks, he is indeed referring to the forecasts that

were recently done by the Japanese steel industry. I've watched those

forecasts of coke and coal requirements and steel production since

early 1976 and I've seen them fluctuate. I can recall that while we

were endeavouring to put northeast coal together, as well as additional

contracts from the southeast, opposition members — indeed, practically

everybody in British Columbia — said we would never sell any coal to

the Japanese steel industry. They also said that when we opened up

northeast coal there would be no additional contracts for the southeast

producers indeed, that we would be taking their market away.

I would like to explain to the House what has happened since that time. We

did get sufficient quantities to open up the northeast coalfields. During that

time and since the announcement was made, there have been additional millions

of tons of coal sold out of the southeast. I would also like to advise the members

of the House that we have been working in other areas of the world. There have

been additional contracts signed between Korea and British Columbia producers.

We are moving coal into Europe. I was in Europe last fall, and additional inroads

could be made there. As a matter of fact, one of the investors in the northeast

coal project is from France. I have recently met with some other people from

France who are well known in the steel and coal industry, and we do indeed have

an opportunity in that area. What I am trying to explain to the House is....

MR. SPEAKER: Order, please. The hon. minister has now exceeded the scope of the question.

HON. MR. PHILLIPS: I am trying to answer his question, Mr. Speaker.

MR. LEGGATT:

Given the fact that the minister has admitted on numerous occasions

that the public investment in northeast coal cannot be recovered on the

basis of the existing contracts, does the minister now propose to

renegotiate those existing contracts so that the taxpayers of British

Columbia can get some protection for their massive public investment in

northeast coal?

MR. SPEAKER: Order, please. The question is argumentative and it may lead to a very long answer. Shall leave be granted for this answer?

Leave granted.

HON. MR. PHILLIPS: The question is based on inaccurate information.

Interjections.

MR. SPEAKER: Order, please, hon. members.

HON. MR. PHILLIPS: They don't want to know the truth. Is that the idea?

I have pointed out on numerous occasions in this Legislature, and will

probably have to do again, on the first two contracts that are

presently signed with the Japanese steel industry, there will be a

return to the taxpayers of British Columbia of something in the

vicinity of $5.5 billion. All the infrastructure, all the highways, all

the railroad, all the investment by the taxpayers of British Columbia

will be left for future coal orders. I'm not pessimistic like the

members of the socialist party, who have been against everything we've

ever done on this project. That infrastructure will be there for future

generations to use. I want to tell you, Mr. Speaker, there will be

additional coal contracts. If you want to take the short-sighted view,

we would never build anything in this province; we wouldn't build new

pulp mills; we wouldn't build new ports; we wouldn't do anything; we'd

pull down the blinds on British Columbia and let darkness shine.

MR. HOWARD:

I rise on an uncomplicated point of order. I wonder if the government

House Leader would mind calling the estimates of the minister, so we

can get to the bottom of all this.

[ Page 7672 ]

Orders of the Day

HON. MR. GARDOM: I ask leave to proceed to public bills and orders, Mr. Speaker.

Leave granted.

HON. MR. GARDOM: I call second reading of Bill 2.

COURT OF APPEAL ACT

HON. MR. WILLIAMS:

Mr. Speaker, it is with a great deal of pleasure that I rise to move

second reading of Bill 2, and to inform you and members of the House

that this legislation will replace a Court of Appeal Act which has

stood as the law in this province without any major revision since its

enactment more than 70 years ago. Under the direction of the hon. Chief

Justice of British Columbia, with the active support of the members of

the court of appeal, the government has for several years had the

opportunity of considering the inadequacies of the existing legislation

to the requirements of 1982.

The new act will significantly

modernize the practices and procedures in the court of appeal. It will

for the first time separate in a definitive way those matters of a

statutory nature from those which more properly fall within the scope

of the civil rules of the court of appeal.

For the first

time we have provided a shortened period of time for the bringing of

appeals from 45 to 30 days, and we have specified time limits in the

statute for the conduct of other business before the court. But at the

same time, recognizing that the application of a rigid time formula may

not suit every case, we have given the authority to individual justices

of appeal to abridge times by either shortening or extending them as

the case may be. So in no case will any litigant properly coming before

the court of appeal suffer as a result of statutory time limits.

The

act will also standardize the times which are limited for launching

cross-appeals, something which has been absent before. The authority of

individual justices of the court of appeal is being extended to deal

with many of the interlocutory procedural matters. This will provide

for the more efficient administration of the business which comes

before the court of appeal in this province.

Under this new

legislation, the concept of requiring leave to appeal has been

introduced for the purposes of expediting matters which come from lower

courts in proceedings where the lower court has been the appeal from a

board or tribunal. Many statutes in the province provide that certain

matters can be determined by administrative tribunals, and the right of

appeal is extended to the courts. The court of appeal will be used only

in those cases where some significant point of law remains to be

decided following the undertaking of steps in appeal which the statute

already provides. In addition, many matters currently requiring the

attention of the entire court of appeal will now be dealt with by

single justices of appeal.

The thrust of the legislation, together with the new civil rules which are

in their final state of drafting now and should be available for examination

by this House and members of the bar when this legislation is enacted, will

serve to expedite matters coming before the court of appeal. As I indicated,

the initiative for this bill came from the honourable Nathaniel Nemetz, Chief

Justice of British Columbia. We were fortunate in the drafting of the legislation

to have the very able assistance of the honourable A. Bruce Robertson, QC, a

former justice of appeal who spent in excess of two years in the preparation

of this bill.

think the bill will be one of interest to the lawyers in the House. I

look forward to their support and comment. I move second reading.

MR. MACDONALD:

Mr. Speaker, I'm the designated speaker on this bill. Perhaps I

shouldn't be speaking on the bill at all. I may very well be in a

conflict of interest position, as my little brother is a supernumerary

who sits on the court, but I welcome the bill and have one or two

comments to make which I think are of interest not only to lawyers but

to the public and clients generally.

The onrushing increase

in the flow of legal work in the superior courts is a matter of concern

to the provincial and federal treasuries and to the taxpayers. I

welcome the kind of streamlining of the court which permits a single

justice to decide whether there is a meritorious point worth arguing,

rather than the kind of automatic appeal which too often takes place,

sometimes at the cost of the litigants who find themselves in an

expensive situation where perhaps an appeal should not have been taken.

There

is a

section in this bill dealing with legal costs. I've read the

section. I won't give the number, because we're not in committee. While

we're only dealing with the court of appeal in this bill, it's a matter

of wide public interest. Far too often we have situations where a

client cannot have his lawyer's bill reviewed, because he is faced with

a situation where there is considered to be a contract. The normal

situation, of course, is contingency fees.

HON. MR. GARDOM: Not in order.

MR. MACDONALD:

It certainly is. The former Attorney-General has not looked at

section

28, which allows regulations to be made prescribing the matter of

costs. It does not say just party-and-party costs. I am talking about

the costs that can be visited upon the client by his own lawyer. It is

my opinion that they should be reviewable by the registrar in a

taxation way and that the client should not be faced with a situation

where his lawyer says to him: "You have made a contract, you are bound

by it, and the bill is not reviewable." That contract may be very

unjust to the client, or it may be fair. Very often it bears no

relationship to the amount of work involved in the case or the

difficulty of the case. I would hope that under the provisions of this

bill which give the court the right to make regulations prescribing

costs, those regulations would embrace the problem I have referred to.

welcome the bill, with those few comments. I recognize that a great

deal of work has gone into codifying the Court of Appeal Act and

reducing complex and rather archaic language to a simple code. I would

support second reading.

MR. LORIMER: I have just one

matter to bring to the Attorney-General's attention, with reference to

the prohibitive costs involved for an individual to go to the court of

appeal. For financial reasons, most individuals are barred from going

to the court of appeal. It would seem to me that the procedures, the

amount of factum and so on that has to go into the file should be

looked at in order to try to reduce the costs involved for individuals.

It might be all right for corporations and so on to go to the court of

appeal where they have a write-off for income tax purposes, but for an

individual who

[ Page

7673 ]

has not that right I think, by and large, they are

prevented from going before that particular court. I would hope that

the Attorney-General would give some indication that he is looking at

streamlining the system with reference to the material that has to be

presented in order to reduce the costs involved.

MR. LAUK:

One of the things that has been long missing in our court of appeal

jurisdiction here — an — idea that has been tried in other

jurisdictions — is to put into the Court of Appeal Act a provision

whereby the Chief Justice of the province can designate an issue or

case upon petition to be heard at public expense because of the

important nature of the question. I think the Attorney-General, through

the inherent powers of that office, can refer any question at public

expense. That is not the point. I think that the Chief Justice of the

province should be allowed to recognize, upon petition of a would-be

appellant, that (1) an issue may be of such farreaching concern to the

administration of justice or to the state of the law that counsel

should be paid for by the public; or (2) where it would work such a

major hardship if the appeal were not proceeded with, the Chief

Justice, upon petition, can designate that case as one coming under the

provisions of the

section I am suggesting.

Something like

those recommendations have been kicking around the bench and bar for

some years. I wonder why it has not been considered in this bill this

time around.

MS. BROWN: I have some problems with

this bill because I think that the kinds of issues that actually reach

the court of appeal have something to do with the quality of delivery

of justice at the lower courts. I think that has a lot to do with what

actually happens and what issues actually get to the court of appeal.

think that we live in a society, Mr. Speaker, in which there has always

been a determination that the quality of justice that's meted out to

people really should not be dependent on their income; it should have

nothing whatsoever to do with whether they can afford to hire good

legal counsel. That's one of the reasons, I think, why legal aid was

introduced in all of its various shapes and forms and ramifications. My

concern is that that is now under attack, that somehow or other, as the

result of some of the decisions being made by the Attorney-General, and

being explained in the memos which were issued to various counsel dated

April 23, the quality of justice which people of limited income are

going to receive is going to be threatened. Some of the issues which

probably should reach the court of appeal will never get to the court

of appeal, because there just won't be the legal counsel provided by

the Attorney-General's ministry or through legal aid or because the

people involved themselves will not have the money to hire the lawyers

to see that they get the kind of justice that they need in the lower

courts before they can get to the court of appeal.

Now I raised an issue during question period that I want to go into in more

detail. Specifically, I want to talk about the decision of the lower courts

to withhold from applicants legal counsel, which used to be supplied through

the Attorney-General's ministry to those people who couldn't afford

to hire legal counsel themselves in matters dealing with custody, access, maintenance

and related matters such as injunctive relief in the supreme court, and that

means the injunctions against one spouse visiting against the wishes of another

spouse and those kinds of things. Until April 23 there used to be, without limitations,

legal counsel extended to people who needed it. After the memo went out on April

23, the counsel were told that they could not represent any applicants in these

matters unless the applicants had de facto custody of their children and proof

that there had been physical violence involved, or proof that there was imminent

physical violence involved — in other words, that there was a clear threat of

violence against them.

MR. SPEAKER: Order, please. Is this debate relevant under this particular bill?

MS. BROWN: Well, just a minute, Mr. Speaker.

Interjections.

MR. SPEAKER: Order, please. I'm asking the question, because if it is relevant, then it was out of order to ask the question.

MS. BROWN:

Okay. Then I will explain why it's relevant, and I was very careful to

check with people on this side of the House who understand the act

better than some of the people over there....

HON. MR. WILLIAMS: Name one!

MS. BROWN:

Stu Leggatt. I was told, Mr. Speaker, through you, that in debating

what issues get before the court of appeal one, in fact, has to look at

what happens in the lower courts because that's what decides what goes

before the courts of appeal. This piece of legislation has to do with

streamlining the courts of appeal, making it more accessible to people,

and I'm saying it's not going to be possible for the courts to be

accessible to you if you cannot get justice at the lower courts. Now

that should not be too difficult for fine legal minds like that of the

Attorney-General and others over there to comprehend.

MR. SPEAKER:

Thank you, hon. member. If that is the fact, then I must apologize to

the House for having allowed the question. Please proceed.

MS. BROWN: I knew that your fine legal mind would grasp this immediately, Mr. Speaker.

a result of decisions being made by the Attorney-General's ministry to

curtail the level of legal assistance available to people of limited or

fixed incomes in the lower courts, it is not going to be possible for

these people to have access to the court of appeal. I'm suggesting to

you that in those instances where there is, in fact, violence in the

family but there are no children, the spouse involved in that instance

is not going to have the kind of legal counsel available to her or to

him, as the case may be, which would ensure that the kind of justice

they get at the lower courts is of such high quality that if need be

they can have access to the court of appeal.

I want to

suggest to you, Mr. Speaker, and through you to the minister that to

withhold legal representation to a parent whose child has just been

apprehended, for example, by the Minister of Human Resources (Hon. Mrs.

McCarthy), and to say that because you now do not have de facto custody

of your child you're not eligible for legal counsel under this

jurisdiction, is to withhold from that person the quality of legal

representation that she or he should have if they're going to

[ Page 7674 ]

have

the quality of justice which they must have to decide whether they

should have access to the court of appeal. It's not good enough just to

streamline the procedures in the court of appeal, when by memo and by

decision the minister is deciding that there are people who are not

going to have access even to the streamlined court of appeal because of

the decision of the Attorney-General's ministry to withhold the

delivery of good legal representation to them.

Mr. Speaker,

even the decision of the Attorney-General that legal services are not

to be given in the instances of enforcement of maintenance to someone

under these circumstances, when you realize that most people who are

dependent on maintenance get something in the order of $100 or $200 a

month.... When in fact we're dealing with instances of non-payment of

two, three or four months it doesn't make sense to hire a lawyer to

collect $400 or $500 in back maintenance. Now the Attorney-General is

saying that this person is not going to be eligible. In other words,

this person has to deal with all of the complexities of the court

system without legal counsel as a result.

Interjection.

MS. BROWN:

The Minister of Intergovernmental Relations (Hon. Mr. Gardom) is

getting really upset about my discussing this matter. I've tried to

explain a number of times why.

HON. MR. GARDOM: On a

point of order, Mr. Speaker, with all respect to the lady member, the

point that she is raising is a point that she feels very strongly

about, but it's not relevant to this bill. That's the only reason that

I'm suggesting it as a point of order. The hon. lady could be talking

about a thousand different situations — maritime law, motor-vehicle

law, wills, estates, trusts and everything else. If we're going to get

into that kind of a debate in this bill, Mr. Speaker, I would suggest,

with every respect, we'd be here for six months. It's not the place to

discuss it. I'm not saying it should not be discussed, but this is not

the place.

MR. SPEAKER: Thank you. I've already asked

the member about it on one occasion. I know that the member will now

keep her remarks strictly relevant to the bill.

MS. BROWN:

Mr. Speaker, with all respect to the gentleman minister, it is

relevant. As I explained earlier to the gentleman minister, if the

gentleman minister were listening, the gentleman minister would have

heard that it is not possible to even get to the court of appeal if the

quality of representation which one has at the lower courts is in

question. Surely even the gentleman minister can understand that —

gentleman minister as he is.

HON. MR. GARDOM: Was that a Valentine?

MS. BROWN: Well, I'm just indicating that I recognize you as you recognize me.

Mr. Speaker, in another memo the Attorney-General has indicated that the legal

counsel available to children over the age of 12 is also going to be curtailed.

As I pointed out earlier, in most instances what we are dealing with here are

cases of sexual abuse against these children. What happens, Mr. Speaker, when

you have a case of sexual abuse, especially when the person involved with the

child happens to be a family member, is that prior to April 23 that child was

entitled to a legal advocate — a third party, someone to speak on her behalf,

to counsel her, to advise her, to guide her in terms of her hearings and certainly

in dealing with the complexities of the court system. As a result of the memo

issued by the Attorney-General's ministry on April 23, these children are

now going to be deprived of that legal advocate. They're going to be deprived

of that protection before the courts — that person to speak on their behalf and

represent them, that counsellor.

is not good enough just to streamline the court of appeal, as glamorous

as that may be, or even as important as that may be. As I said to you

earlier, Mr. Speaker, and I'm saying again, before you even get to the

court of appeal, we have to ensure that the kind of legal counsel which

people in lower courts have is not tied to their incomes. That has

never been the case. Now this is about to happen as a direct result of

these memos — three or four of them — which were issued by the minister

on April 23.

MR. SPEAKER: Order, please, hon. member.

If the member wishes to use as an example matters which may happen

before they arrive at court of appeal, perhaps that could be permitted.

To embark on a full-fledged debate on what happens before we get to

court of appeal is surely not in order in this particular bill. In

viewing sections 32 through to the end of the bill, there is reference

to any number of bills that are amended by this statute. However, a

full-fledged debate on any of those other bills is not in order; it is

only as the appeals process is affected. I would ask the hon. member to

please remember that as she continues.

MS. BROWN: Mr.

Speaker, I certainly appreciate your very kind guidance. I will use

only as examples the fact that unless straightforward, honest,

accessible, good quality legal counsel is available to people at the

lower courts, it's not going to be possible for them to benefit from

the amendments in the legislation that we are dealing with, or even

from the streamlining of the courts of appeal.

My only

reason for raising this issue is that I want to bring to the

Attorney-General's attention my concern that his decision to curtail

the availability of legal counsel in the lower courts is going to

impact on the opportunities of some people — certainly people with

limited incomes — to use the courts of appeal. That is why I raised the

issue of children over the age of 12, and the issue of women, whether

victims of physical, emotional or psychological abuse. They are not

covered if it's simply emotional or psychological abuse. They're also

not covered if it's fear of kidnapping, or that kind of thing.

want to suggest to the minister that he should be taking a second look

at the quality of delivery of justice in the lower courts, at the same

time as he deals with streamlining the courts of appeal as outlined in

this act.

MR. LEVI: Frankly, I was quite surprised,

when the Attorney-General introduced the bill, that he didn't take the

opportunity to make some remarks about the justice system as it is

today, its development from what it was even 70 years ago, and

certainly over the last 10 years. We don't often get a chance in this

House to debate some of the concepts of justice. In the 17 years that I

have spent in the criminal justice system, mostly as a parole

officer....

[ Page

7675 ]

Interjection.

MR. LEVI: No, no, no. If you've got

anything to say, get up. Otherwise, please keep quiet. If you don't

understand the subject, keep quiet and learn.

It didn't

happen. Sometimes under a bill like this, with something as fundamental

as a change in the rules of the appeal court.... Not that the rules are

all that numerous in terms of the change. Although there's an attempt

to effect some language changes, this piece of legislation is extremely

remote from the average citizen of this province. This is what's really

happened to our court system. We're dealing here with the top court in

the province. This is the top of the pecking order. My colleague made

reference to the family courts, which are at the bottom of the order.

One wonders about the ordering of the whole court system anyway.

I've

always had some serious problems understanding the real function of the

kinds of decisions that come out of the appeal court. After all, if

that court makes a ruling and there's a change in the application of a

particular section, it goes all the way down to the bottom. It impacts

very much in the criminal sector, on the sentencing process, which is

one that is looked for all the time. The major problem I've always had

with our supreme court is that there is an incredible remoteness from

what is going on in terms of the day-to-day courts, where the majority

of our criminal cases are heard. I'm primarily dealing with criminal

cases. The family law area is relatively new in terms of our court

structure — 10 years that we've been attempting to do something about

that. Nevertheless, the decisions made by the appeal court impact on

what goes on down there.

We're dealing here with a piece of

legislation that includes an oath — I'm not going to cite the oath —

with two principles in there which interest me. One relates to the

judge who swears that he will do, to the best of his skill and

knowledge.... That's one of the important things about how the court

operates: skill and knowledge. It's always been a very serious bone of

contention with many people in this country as to how judges are in

fact appointed. However, there is now some system, an attempt at a

screening system. "At last," the former Attorney-General says. My God,

yes, at last, albeit by a young lawyer who was able to go around and

measure their size, girth.

I was much more interested in some observations made by Mr. Justice

Martin Taylor in an interview in 1980 by Larry Still, who wrote a

series of excellent articles on the court system. I'm going to quote

Mr. Justice Taylor. We're dealing here with the whole question of how a

judge becomes a judge in terms of experience and training. Before I go

to the quote, Mr. Speaker, I might say that in other jurisdictions,

particularly in Scandinavia, you take the option of whether to be on

the judicial side or on the lawyer side, and you train in one or the

other; that is, you train to be a lawyer or you train to be a judge. It

doesn't work that way in our system. Many years ago there was a young,

scholarly lawyer in the University of Calgary who decided to take a

look at how judges become judges as his master's thesis, He found out

that if you had the right political connections you were halfway in the

door anyway. It's not that it isn't still the case today. However, that

is a major question in terms of judges.

In the last two or three years we've had some public debate about judges;

I'm not now going into any of those cases, and I wouldn't like to hear

anybody else from the judiciary say that somehow judges are separate, special

people. They're not; they're human beings. I think it was Mr. Justice

McEachern, Chief Justice of the B.C. supreme court, who said, "Judges

should face constructive scrutiny," in attempting to reply to the invidious

inquiries by lawyers about the behaviour of certain judges. The point is that

I agree with that. We need to have a much freer discussion, not about judges

in terms of their private lives, but rather about what they do and how they

come to do it.

my knowledge no judge appointed in this country has any training

whatsoever in being a judge. I quote from the

article where Mr. Justice

Taylor pointed out: "Very little has been written on the practice of

the courts. A new judge must rely on what he learned as a practising

lawyer, as well as from the example of other judges, As for judging,

the judge must assume an anonymous role in the sense that it is the

standard of the community as a whole, and not necessarily his own,

which he must apply in dealing with the issues before him."

Those

attainments are highly meritorious. Those younger members of this House

who went through the period when a former member of this House.... He

was once a Speaker, an Attorney-General and a judge later on: Mr.

Justice Manson. He sat in this place for 19 years; I think he was

Attorney-General for eight years; he was on the bench for 26 years. He

was probably the most crusty, interesting, choleric individual to sit

on the bench. However, he was a judge....

Interjection.

MR. LEVI: My colleague, who has already spoken, is trying to pinch half my speech.

Once

when he was active as a judge he had an incredible argument in court

with a man whom he was trying for murder. He got into a terrible

argument. He got into all sorts of arguments. He was a great

finger-waver. He did some other good things too. Perhaps the most

interesting thing he did was when he finally had

an act drawn up and

passed by the Parliament of Canada in order to get rid of him. As a

matter of fact, I think he's responsible for the retirement age of 75

for judges.

Interjection.

MR. LEVI: Is that guy still squeaking?

I think judges can retire at 70 or stay on until 75.

would have thought that the Attorney-General might have stopped for a

minute and thought: "Well, I'm just going to shove this bill through;

there will be three or four lawyers get up, and it'll all be over. And

all the lawyers will run around outside and say: 'Allan did it again.

We got it through — bang!'"

This is a good time — I hope

it's a good time — for other members on that side to get into the

debate on the application of justice in this province and what needs to

be looked at. One major criticism I have in terms of the operation of

the appeal court — and one could also level the same criticism against

the supreme court — is that the judges on our supreme courts have no

idea about many of the decisions they have to make, particularly with

respect to sentencing. This, to me, is very serious. In its own way the

appeal court is just as inefficient and insufficient in its knowledge

as to what to do. I find no connection

between decisions made in the supreme court and the appeal court and

policy decisions that are being made in the criminal justice system as

it applies to corrections and

[ Page 7676 ]

what happens to offenders afterwards. There is no integrated policy whatsoever.

can recall many years ago, when I worked for John Howard, going along

with a man to the Appeal Court of British Columbia, where there was an

appeal of sentence. He had a definite-indefinite sentence. His lawyer,

who knew even less than some of the judges, got up and said: "We'd like

this young man to go to Haney. Then he can get some training." At the

same time he was trying to get the sentence cut. He said, "Two years

less a day," and two years less a day is very hard. The sentence ought

to have been cut to 9 and 18. Fortunately I was able to get up and say:

"If you want this young man to go to Haney, you'd better give him a

year, because they don't take anybody in there to train unless they

have a sentence of a year. It's not enough time."

From that

little contretemps that we had, we said that if the judges had the

opportunity to be well-briefed on what goes on in institutions, in

parole and in probation, then they would be in a position to make much

better decisions about sentencing. They don't. I am afraid it still

goes on, so you do not have an integrated criminal justice system. From

the courts all the way down to the people who work on the line, to the

policemen who feel the great frustrations....

HON. MR. VANDER ZALM: On a point of order, Mr. Speaker, isn't this

more relevant to the estimates than to this particular bill?

MR. SPEAKER: We will encourage the hon. member who has the floor to make his remarks relevant to the bill.

MR. LEVI: How about if we have a little recess and I take the minister outside?

MR. LEGGATT:

On a point of order, this bill is an entirely new bill on the court of

appeal. It is not an amendment to the old bill. It is a brand-new piece

of legislation setting up, in effect, a court of appeal for the

province of British Columbia. With the greatest respect, I would

suggest that a fair amount of scope must be allowed when this kind of

legislation comes before the House. We are not merely looking at the

technical part of the bill. The whole principle of appeals and the

appeal system must be a part of the principle of a new bill on the

court of appeal.

MR. SPEAKER: Thank you, hon. member. As long as it has to deal with the court of appeal it will be acceptable, I am sure.

HON. MR. WILLIAMS:

On the same point of order, I agree with the member for Coquitlam-Moody

that this is a court of appeal act. It deals with the constitution and

composition of the court. Therefore any remarks which are addressed to

that subject are most welcome to me. However, I might point out that to

deal with individual cases or the reminiscences of members with respect

to their experiences, whatever they may have been, is inappropriate in

the circumstances. Likewise, I would point out to the members that the

qualifications of judges and the appointment thereof fall within the

scope of responsibility of the Lieutenant-Governor-in-Council and the

recommendation of the Minister of Justice in accordance with federal

legislation, something over which I have no control.

Interjections.

MR. SPEAKER:

Order, please, hon. members. With great respect, it is an originating

bill, but it does have several amending sections to it. To suggest that

any of those amendments would open the scope of debate to an entirely

new debate on each of those areas amended would be folly, I suggest.

The hon. member will keep his remarks relevant to the bill, I am sure.

MR. LEVI:

Well, I'm not going to let him get away with what he just said about

the skill aspect. That is in the bill. That is part of the principle.

We're talking about appointments. You don't just put Johnny Two Shoes

on the board, or Woody Wooden Shoes. You've got to have a lawyer.

Interjection.

MR. LEVI:

You just said so. You don't have anything to do with that because

you're the Attorney-General? He doesn't have anything to do with

putting them on the bench. We're not talking about who puts them on the

bench. I'm talking about the issue of qualifications, the kind of

things they can learn. That is the kind of thing I was talking about.

That was the reason for the example, which I will stay away from. I

won't do any more reminiscing.

Interjection.

MR. LEVI:

That's not the point. I'm not talking about who selects them. I know we

don't select them. I think it is very unfortunate we don't.

Interjections.

MR. SPEAKER: Order, please. Let's let the member make his speech.

MR. LEVI:

I don't mind debating with the former Attorney-General. He loves this

subject. Now that he's Minister of Intergovernmental Relations he has

all the time in the world to think about the things he couldn't think

about when he was Attorney-General. But I love you anyway, Garde. You

know that.

I can go back to my original remark that it was

unfortunate that the Attorney-General didn't take us into this kind of

debate. It would have been worthwhile. We could get into some

discussion about where the justice system is going. This is the very

top of the justice system. In fact, this court is the most influential

court in the justice system, until you get into the House of Commons,

where they amend the Criminal Code.

They have all of this.

They make the decisions. They do influence future decision-making in

lower courts. That goes on. I was pointing out before that in the

system that we all have a major concern about — the total criminal

justice system involving all the aspects of crime.... This is part

of the criminal system.

Justice Patrick Hartt, who was the former and first chairman of the federal Law Reform Commission, said:

"I suspect that the criminal justice system is one of the

least important deterrents to crime." — this is from a man who was a justice of the Ontario court —

[ Page

7677 ]

"Also, it is now acknowledged that detention

frequently fails to rehabilitate the offender, and punishment per se,

on the evidence, tends to debase rather than reform. While judges,

police, probation officers, prosecutors and police wardens all operate

on the assumption that custodian institutions are necessary simply to

spare society from predatory abuses of certain convicted criminals,

they also understand that correctional institutions seldom correct and

achieve little beyond the warehousing function."

This is

coming from a judge who is, in fact, making some reference to the kind

of sentencing process that takes place, some of the sentences coming

down from the appeal courts.

First the appeal courts say: "Yes, we'll

give him five years for the possession of narcotics." Then later on

somebody will say: "Well, perhaps because they're not trafficking we'll

give them a fine." So there were changes as the result of some judges

looking at the reality of the situation. In the marijuana question they

made some reductions in application of the sentence. That's what judges

do. A major part of that invariably comes in the appeal courts, because

sometimes when a judge gives a wrong sentence that's exactly what

happens: it goes to the appeal court. Either the members of the appeal

court will agree with it, or they'll come out with something else.

The

main thing is that this discussion that I hope other people will

participate in is really to do with the fundamentals of the system we

have in the province. Unfortunately we've had so much of the negative

aspect of what's gone on because of a couple of notorious cases which

really had nothing to do with the application of justice. This time,

because you're rewriting the rules, which I've been given to understand

are not all that changed.... I don't find that the language is all

that changed either. Part of what concerns me very much is the real

remoteness that the average citizen feels from a piece of legislation

like this. After all, they're the taxpayers. We now have an extremely

expensive criminal justice system in this country.

HON. MR. WILLIAMS: What are you recommending?

MR. LEVI: Let me say this. He's the Attorney-General. I'm just the guy who talks.

For

the minister's benefit, let me give you an example. In Canada last year

we spent $4 billion on defence. In the same year we spent $3.9 billion

on police, courts, prisons and all processes connected with the

criminal justice system. That is an enormous amount of money. It's a

system in which we are getting deeper and deeper into the problems, one

of which was illustrated by what Mr. Justice Hartt talked about in the

quote I read you. We're getting into areas of cost which are so remote

from the kinds of consequences of decisions that come out, for

instance, even in the appeal court. I said earlier that for me the

issues of competence and training of the judges have always been a

major concern in terms of the appeal court, other senior courts or

even, for that matter, the lower courts. In this particular case, the

supreme court, no training is required. People have, in fact, gone

directly to the supreme court without having training in judging at

all. That was the case with Mr. Justice Farris, who went right from the

courtroom to become chief justice. He's a man of long experience.

Perhaps that's the kind of thing you can do.

HON. MR. WILLIAMS: Which Farris?

MR. LEVI: John L. Farris, the former chief justice when....

HON. MR. WILLIAMS: That's Wendell.

MR. LEVI: No, Wendell was the Chief Justice of the Supreme Court.

HON. MR. WILLIAMS: Come on, Norman. Are you going to deal with the bill?

MR. LEVI:

I think we're really boring the Attorney-General. He came in, did his

little trip — one, two, three. Now he's bored because he doesn't want

to hear these things. Why not?

HON. MR. WILLIAMS: Because you're talking beside the principle of the bill.

MR. LEVI: You didn't even talk on the principle. That's the trouble with this bill: there's no principle; you changed the language.

HON. MR. WILLIAMS:

On a point of order, if the hon. member believes that the bill has no

principle, why is he arguing? He can deal with these matters in the

course of estimates when we can have a full debate on the question of

the judicial system and the way in which it is administered in this

province, but not on the Court of Appeal Act.

MR. LEVI: Oh, we've got him up on his feet anyway.

MR. SPEAKER:

Before the hon. member continues, I would like to remind him that on

page 485 of Sir Erskine May's eighteenth edition it states that debate

on the stages of the bill should be confined to the bill. It should not

be extended, particularly in second reading, to criticism of

administration of that bill, but be strictly relevant to the principle.

The member will keep that in mind as he continues.

MR. LEVI:

As long as the minister keeps it in mind. I'm not criticizing the

administration, I'm talking about the operation in terms of the court,

not the way the Attorney-General operates. We know the way he operates:

he comes in, bangs the bill on the table, then expects everybody to sit

down and keep quiet.

Unfortunately, it's not always the case

that in the estimates we can debate these things. This is a good

opportunity and a good forum in which to talk about the superior court

of this province and the kind of work done there, its relevance to what

goes on in society today. We can talk about the future of the judicial

system in respect to the appeal court. What's wrong with doing that?

Out there we have a multitude of problems — family problems, criminal

problems. You even hear complaints frequently in terms of civil suits.

Something is wrong, so we're examining that.

One of the

points I'm making is that in the criminal area, which is the one that I

know most about, there is a remoteness in terms of understanding what

the problems are. So what does one do? One talks about the people who

make the decisions, and their frame of reference in terms of what goes

on in society. That is a fair enough observation in terms of this bill,

because right in the beginning there is a requirement to take an oath —

skill and knowledge. One can question that.

[ Page 7678 ]

One

can urge that there be a process by which we can be assured that we

have skilled, well-trained people. What's wrong with that? That's not a

critique; that's a suggestion. It has been offered before but we have

no movement towards it. All we have is a piece of legislation that

simply changes a few i's, crosses a few t's and simplifies a little bit

of language — and at the back is the most incredible

schedule of

amendments to other bills.

It's the fundamental part of the

justice system, but that's not the case in terms of the appeal court.

All too often we don't discuss our court system in this House. There

was a time when nobody dared talk about the court system or the judges.

We've got out of that; we're away from that now; we can do it. That's

what's being attempted here. Nobody is attacking anybody; nobody has to

get nervous about it. Let's have a discussion about the kinds of things

that concern people, such as those that concern my colleague from

Burnaby-Edmonds (Ms. Brown), or the concerns that I have. That's fair

enough.

MR. SPEAKER: But only insofar as it touches on the court of appeal.

MR. LEVI: Yes, I appreciate that.

terms of the court of appeal, a very interesting analysis was done by a

very bright, capable writer in April 1980, in which they talked about

the justice pyramid — that's power and prestige at the top. They were

talking about the nature of the appeal court, even the architecture.

When you go into the appeal court, it's like going into the great

temple of Solomon. You have a sense of awe when you go in there, and it

becomes very difficult,

The Attorney-General might want to

go down to some of the courts and watch and listen quietly to the

reaction of people when they go into courts. Most of them have a

feeling, even when they go to look, that they don't have a right to be

there. That kind of aura, that kind of edifice complex which we've

built into some of our courts, is really a very discouraging process

for a lot of people. They're attracted, for instance, to the new

building down there, and people more and more go into the courts. But

my gosh, they've got a sense of awe about these things; they don't

understand what's going on and they're not quite sure what this has to

do with their daily lives, until they wind up in there. The appeal

court is like that completely.

AN HON. MEMBER: It's a hothouse.

MR. LEVI:

Yes, it's a hothouse; it has sealed windows. Frankly, the only time I

was there to listen to a trial, I had a heck of a time staying awake.

The

thing is, because of the aura around the supreme court, there is an

aura around the way the whole thing is conducted and where it's

conducted, and it's very unfortunate. It doesn't give people the

feeling that it is part of the daily life of citizens in this province.

Even as taxpayers they have a right to go in it. It's very difficult to

see that.

Interjection.

MR. LEVI: It's too late to speak to him. All those big desks down there....

I think the austere view that is held by many people is what Judge Doug

Campbell, who is a very fine family court lawyer here in Victoria.... He

made an observation. He said: "The pecking order starts with the court

of appeal and goes on down to the lowest form of life, which has to be the family

court." It's very unfortunate. It's obviously a remark that comes

from experience and feeling when we talk about the state of the pecking order,

in terms of the appeal court. It's austere and it's remote, yet it has

more impact on the administration of the justice system in this province than

any other court. In terms of some of the cases they deal with, they sometimes

change the direction of decisions which have social policy implications. In

this country, all too few such decisions are made, but they emanate out of the

court of appeal. That's the important thing.

terms of the change — and the minister has indicated this is the first

time in 70 years that there's been a change in the application of the

court of appeal — I don't know that it's going to do anything to

overcome some of the feelings of people out there about the appeal

court system. That's the difficulty that I have with the legislation.

Obviously

one supports the change because it has to be, in terms of the

operational side of it. However, could we have built into the idea of

the legislation some of the things which directly affect and take into

account the kind of things that people are concerned about? That's what

I think the administration of justice is all about, and that is what is

exemplified by the superior court which we have, which is the Court of

Appeal of British Columbia. If we're going to make changes to that part

of it, we could look also to making changes to the whole effect that it

has. The effect is more than what's written in a book afterwards as a

judgment which lawyers can refer to. It has to be more than that;

otherwise it's too remote and doesn't mean too much to people. The

indifference that some people feel has been one of the causes, in terms

of our very costly justice system — and, in some cases, a sense of

desperation about whether in fact they can get the kind of justice that

they want.

It was a justice of the appeal court — and I was

there when he said it — who said that the only people entitled to legal

aid in this country are those who can afford to pay for it. That was a

principle that was enunciated 35 years ago. I know we would not hear

that today, but I heard it very vividly when a person was asking for

some assistance in the court at that time.

There have been

some changes. But the difficulty is that the size and the cost of the

criminal justice system are so out of proportion to the kind of real

effectiveness that could take place if there was an integrated approach

to our justice system by the courts, the people in the police system,

the people who work in the rehabilitation system and the prison system

— all of that has to be integrated. It is not integrated, and

consequently decisions are made on the judicial level which can impact

on people in the rest of the system. It doesn't seem to make sense in

terms of the kinds of sentences that are handed down, the kind of

approach that's used, and the lack of knowledge — where they think

they're sending offenders. All of that is still missing after all of

these years. Sure, we've gone into all sorts of other processes, but in

terms of the courts — particularly in terms of our top court — we're

still very far away from that integrated approach. With all due respect

to the people who work there, the appeal court is still not part of the

real world of the criminal justice system.

We've had some

debate in the press recently on the position of judges, their state of

independence and what they can and cannot do. We're living in an

entirely different era

[ Page 7679 ]

than

we did when the concepts were brought in 70 years ago — when this first

legislation, which is now being replaced, was brought in — about just

what the role is and what the proper function of a judge is. It might

have been all right 70 years ago for a judge to keep his mouth closed,

to make no observations, not to be.... But in those days there were

not many people from the press who ever went and shoved a microphone in

the face of the chief of the supreme court or chief of the appeal court

of British Columbia.

Now, of course, everybody in this

country is as close as a telephone. People want to know — who better to

talk about the appeal court than the chief justice? Who better to talk

about the supreme court...? That's why it's different. We need some

kind of change in outlook on that. That's not possible, presumably, in

this bill.

But the minister, who goes down to Ottawa for

regular meetings with his colleagues.... Presumably this is what

they talk about — at least I hope they spend some time talking about

this. Or maybe they don't; maybe they prefer the same stuffy little

system that has been going on for a long time. Frankly, it is quite

inappropriate for the kind of times that we're living in.

terms of what the minister is doing here, I can only conclude from what

he's done with these rules — he's changed the rules; he didn't really

say anything about the system — that he likes things the way they are,

Well, I don't like them the way they are. That's why I got up to speak

on this. I find them extremely difficult to accept after all the years

that I was in the system and all the years I've been here witnessing.

The changes are much more fundamental than the kind of changes that are

envisaged in this bill. This is the nature of the debate that we want

to have, and the minister has given us some notice that we can discuss

it in his estimates. Okay, good. We'll get into that and then we'll get

into the particulars. By then, maybe he'll be ready to debate this

thing so that we can really find more modern-day relevance than I find,

frankly, in some aspects of the important work of the court.

MR. LEGGATT:

Before I say very much about Bill 2, I'd like to congratulate my

colleague for Maillardville-Coquitlam (Mr. Levi), who gives a consumer

point of view about legal services that's sorely needed in this

chamber. I find it very hard to listen to my colleagues in the law

criticize a lay member's approach to the legal system and its defects

with some sort of assumption that in our own trade union are the only

people who have the wit or the wisdom to criticize the way we deliver

legal services. Frankly, I very much welcome an opportunity to listen

to my colleague any time he rises on a subject of which he knows a

great deal and to which he contributes a great deal in terms of change

in the law.

I must say, Mr. Speaker, I am somewhat

disappointed with the Attorney-General's introductory remarks to the

bill. I'm not sure why we have a new bill here. I glanced briefly at

the old bill, and the changes are not all that significant between the

new bill and the old bill. Perhaps in concluding the Attorney-General

would deal in a little more detail with the changes that have been

effected as a result of our new Court of Appeal Act.

The

key provision that I noted in his initial remarks — for example the

abridgement of time — has always been in the old act under

section 27.

I don't see any significant change there. I think we always have the

right to appeal. Even after the appeal period has gone by, we have

always had the right to make an application to enlarge the time in

special circumstances. That does not seem to have changed, and I'm

glad, of course, that it's still in the legislation. The cross-appeal

question, I think, is an improvement. I don't know quite why we have to

have a whole new bill for that purpose.

Another issue arises

as a result of introducing us again to the question of the court of

appeal itself and the question of court of appeal legislation. Do we

need a court of appeal in the province of British Columbia? We have a

Supreme Court of Canada. One of the complaints that people make about

the judicial system from time to time is that there's an endless route

for appeals to go on. Something that starts in lower court — for

example, let's take provincial court, where most people are exposed —

can go up to county court in most criminal matters or by stated case to

supreme court, thereafter to the court of appeal, and thereafter to the

Supreme Court of Canada. That's a lot of steps in the appeal process,

and a lot of legal fees that have to be paid to support the people in

our profession to do that work. By the way, I'm not one of those who

believe that people in our profession are overpaid.

There is

perhaps an opportunity from time to time, because it's so easy to

assume that all the institutions that are there are always necessary,

to perhaps question the need for the court of appeal system throughout

the country. In fact, an expanded Supreme Court of Canada might be able

to do that kind of work just as effectively. A Supreme Court of Canada

that travelled, or was perhaps regionalized, might be just as effective

as the court of last resort, rather than having the additional appeal

steps. I think it's worth a look or a study into whether we really need

a court of appeal at all.

The second thing I question is the

kind of people that you appoint. Mr. Speaker, I'm going to be relevant

to the bill and relevant to the principle of the bill. Provided in this

bill there is a standard oath that's prepared by the Attorney-General

setting forth that any person accepting responsibilities on the court

of appeal must swear an oath to "...truly and faithfully, according

to his skill and knowledge, execute the duties, powers and trust placed

in him as a justice of the court of appeal...."

There

is a debate raging in the community — outside as well as inside the

legal community, I think — as to what a judge can say in public. What

are the rules that our judges must abide by in terms of public comment

on matters of the day? There is an area of some vagueness around this.

Of course, I'm particularly concerned at the present time with the case

of Mr. Justice Thomas Berger. Apparently the appropriateness of his

remarks on the constitution are now being investigated or studied by

the federal Judicial Council.

There is, as I say, an area of

vagueness around this particular subject which should be clarified. I

think the place to clarify it should be the Legislature, or perhaps the

federal House. We should clarify the question of what is and what is

not appropriate comment from the courts. Tradition has been that,

because judges are placed in a position of having to make decisions

about these matters, they are somewhat circumscribed in getting into

debate on matters of strict partisanship. The facts as they seem to be

in the case of Mr. Justice Thomas Berger are that he addressed the

Canadian Bar Association....

HON. MR. WILLIAMS:

Mr. Speaker, I'm afraid I must raise as a point of order the fact that

the member is not dealing with the principle of this bill, but is

dealing with another matter touching upon judicial conduct which falls

entirely

[ Page 7680 ]

within

federal legislation, something over which I and this court of appeal

have no control. If there is any vagueness in the issues to which the

member refers, I would be happy to provide him with a lengthy list of

material that he can address on the subject.

MR. SPEAKER:

Would the member for Coquitlam-Moody please, as we've mentioned to

other members who have spoken, make his remarks relevant to the bill.

MR. LEGGATT:

I shall certainly do that, Mr. Speaker. I'd like the Attorney-General

to read

section 4(1) of the legislation he's proposing to us, which

deals with the question of judicial rank. It sets out that the chief

justice has rank and precedence over all other judges of the courts of

British Columbia, which of course gives the chief justice of the court

of appeal rank over a judge of the supreme court. Those comments made

by a judge of the supreme court clearly come into question by his

superior court judge. Therefore, with the greatest respect, I think I

am still making relevant remarks in terms of this brand-new bill

dealing with the Court of Appeal Act and the jurisdiction of superior

court judges, one to the other.

HON. MR. WILLIAMS: On

the same point of order, Mr. Speaker, I appreciate what the member has

to say, but there's no suggestion that the chief justice of British

Columbia is dealing with the subject of the member's remarks. It's

being dealt with by the Judicial Council of Canada, which is

established under a federal bill.

MR. SPEAKER: The member for Coquitlam-Moody continues without offending the rules of the House.

MR. LEGGATT:

Mr. Speaker, I certainly will continue to not offend the rules of this

House. The Attorney-General can argue as long as he likes about the

question of whether judicial rank is relevant to the question of

judicial comment. If he can make that one stick in any court in the

land, including this Legislature, I'd be very surprised. This is very

relevant to what we have to say about the capacity of supreme court

judges to make public comments. Also, the bill in question sets out

very clearly judicial rank in the province of British Columbia.

get back to the question of what is or is not appropriate in terms of

public comment, it should be appropriate, if it's not now, particularly

for our superior court judges.... I don't see why any

judge should be inhibited from commenting on something as fundamental

as the constitution of this country. It boggles the mind — in fact,

beggars reason — and offends common sense that we would have a judicial

inquiry into a judge who saw fit to make a public comment about

something as completely fundamental to our nation and province as the

rules under which we live, our constitution. Surely we look to our

people most skilled in that area to make those comments. Frankly, I

welcome those kinds of comments from a superior court judge. Surely we

are not going to be in the hands of law professors all our lives for

comments on something as important and fundamental as the constitution.

In the case of Mr. Justice Berger, he not only commented on it once; he commented

on it several times. It's quite significant that in making his first comment,

he spoke favourably on the constitution as it then was. He addressed the Canadian

Bar Association and had his remarks widely covered by newspapers, including

the Globe and Mail , which was apparently the problem with the Prime Minister

of this country. Nothing was said until such time as sections were removed from

the constitution and again comment was made in the Globe and Mail by the same

supreme court judge; thereafter a complaint was made.

is inappropriate for the judicial council and inappropriate for judges

of our courts to engage in this kind of activity. We surely have some

kind of sense of responsibility or justice or just plain common,

old-fashioned good sense to see that this kind of thing will bring the

judiciary into disrepute.

A good deal is said, and we in

parliament and the general public are constantly warned, that we should

not bring the judiciary into disrepute. They are limited in their

ability to respond. They're limited in their capacity to defend

themselves publicly, and I agree with that fundamental concept.

What

is happening now, in terms of that particular activity by the judicial

council, is bringing the judiciary into more disrepute than ever could

occur as a result of comments from lay people or lawyers.

HON. MR. WILLIAMS: How can you make that decision before they've dealt with the matter? Are you prejudging what they're going to do?

MR. LEGGATT:

I'd be happy to deal with that. I'm not prejudging it. I'm suggesting

that a body which refused or discontinued an investigation into the

chief justice of this province, but then continued an investigation

into one of the most prestigious judges I know in this province, is

acting in an injudicious manner, Mr. Speaker. That's what I'm saying.

The Attorney-General, who has seen fit to take it upon himself today to

defend the Judicial Council, should have looked at their previous

decisions over previous judges to come to a better and more even-handed

decision.

MR. SPEAKER: But not under this bill.

MR. LEGGATT:

Mr. Speaker, as I say, it is a time when we should re-examine this

whole question of what is, or what is not, appropriate judicial

comment. If there's any doubt about it, it should be made clear by the

Legislature, the Attorney-General and the federal Parliament that

comment on something as fundamental as the constitution, native rights,

women's rights or the place of Quebec in Confederation is appropriate

for someone as knowledgeable in those fields as Mr. Justice Thomas

Berger or any other judge who happens to be very knowledgeable in those

fields.

Dealing with this question of who judges the judges, it seems to me that if you're going to hold these kinds of....

MR. SPEAKER: Order, please. A point of order.

HON. MR. WILLIAMS:

Mr. Speaker, at no place in this legislation is there anything to do

with who judges judges. If .he's talking about the Judicial Council,

again, I must say, that's federal legislation, and if he wishes to

address those matters with the Minister of Justice, I suggest he do so

in the appropriate fashion.

MR. SPEAKER: The member continues, strictly relevant to the principle of this bill.

[ Page

7681 ]

MR. LEGGATT:

I might say, Mr. Speaker, that the Chief Justice of the Court of Appeal

and the Chief Justice of the Supreme Court judge the judges every day

by assigning them various cases. So that is the bill, and the

Attorney-General really must be more careful when reading his own

legislation.

In any event, we are looking at a question of

when you're going to pass a court of appeal bill. Maybe it's time we

examined the need for a court of appeal itself. Maybe it's time we

examined the streamlining of the appeal process in Canada. Maybe it's

time we examined the idea of having a single ultimate court of appeal,

the supreme court of Canada. I'm on the bill now, Mr. Speaker; you

can't argue with that. If we had an Attorney- General's department that

was innovative, they would perhaps have a look at that. We haven't had

much from the Attorney-General in terms of new departures in the law,

new approaches to the law, or new studies of the law. All we've had

today is a complaint; the member for Maillardville-Coquitlam (Mr. Levi)

got up and had the temerity, as a lay person, to criticize lawyers and

judges. I think we need more than that from the Attorney-General. We

need some innovative thinking on the question of the law. It hasn't

come from that quarter, Mr. Speaker.

It's a question of

"let's not rock any boats." That's why the Attorney-General thought he

was going to get this bill through in about ten minutes. He looked at

it and said: "Well, it's the usual thing. We'll get five lawyers up and

it will be through in a minute." I don't think he should expect that

from a piece of legislation like this. There is deep concern in the

population about the administration of justice and about the law — and

that includes every level of justice. Unless this government and the

Attorney-General start to look at changes within the law that will

satisfy those public demands, I might say that he and his government

are going to be in very serious trouble, as they are already.

[Mr. Davidson in the chair.]

HON. MR. WILLIAMS:

Mr. Speaker, let me assure you and members of this House that

innovation in the administration of justice in this province is no

stranger to the Attorney-General or to his ministry. As for debate in

this chamber with respect to the administration of justice in all of

its elements, I most sincerely welcome it at the appropriate time, when

it is in accordance with the rules — not to abuse the rules, when

dealing with the Court of Appeal Act. I would like to respond to some

of the matters raised by the member for Coquitlam-Moody (Mr. Leggatt),

but I don't propose to do so in dealing with the Court of Appeal Act or

to use it as a vehicle for such debate, important as it may be. I took

forward anxiously to having the opportunity of joining in debate, not

necessarily disagreeing with many of the matters raised by the member

for Coquitlam-Moody and his colleague who spoke as a layman in respect

to these matters.

So far as the organization of courts in this province is concerned, I wish

the member to know that very careful consideration is being taken of the way

in which the Supreme Court of British Columbia, the county courts and the court

of appeal function one with the other. Studies are underway which I hope will

soon produce innovative concepts with regard to the way in which all those superior

courts function. There has been — for too long, in my view — a clinging to history,

with respect to the way courts were established. Whether we need to have one

superior court which sits in a trial division and in an appeal division, and

how it will meet the geographical and regional needs of a province as large

as this one, I'm not at liberty to say at the moment; but I want to assure

the members that this is not being ignored.

The

concept of having no court of appeal in this province, but rather

giving all the appellate jurisdiction to the Supreme Court of Canada,

is fraught with very serious constitutional difficulty, as I know the

member will appreciate. The Supreme Court of Canada is established

under federal legislation, to which the provinces make very little

contribution, although during 1980 we tried to have discussed

constitutional change which would permit the provinces to play a

greater role in the selection of judges and in the determination of

jurisdictions and the manner of operation of the Supreme Court of

Canada. We would not wish to see the appellate authority for this

province fall under the control of a court which might not sit

regularly within B.C. to serve the people of this province.

are also concerned, as I'm sure the member is, that over recent years

the Supreme Court of Canada has adopted the policy of dealing with

cases which are of national significance. Therefore leave to appeal to

the Supreme Court of Canada is not easily obtained; in criminal

matters, yes, but with regard to others, you have to establish to the

satisfaction of the Supreme Court of Canada or to the court of appeal

of the province that there is some issue of national significance

requiring it to be dealt with by that court. We in this province must

therefore continue to have an appellate court which can deal with

issues that come from the courts below. Until we in this nation can

look at changes in the Supreme Court of Canada and the appellate

jurisdiction which it exercises, I would think we in this province

would have to look to adjusting our own system in a way which will

better serve the administration of justice in British Columbia.

think we are at least as good as, if not better than, any of the other

provinces in this regard. We have made greater strides in some respects

than other provinces. In some cases they have merged their district and

superior courts; we have not. But that's not because it's not being

examined. I can assure the member that two specific proposals are

currently under examination; I would hope that they would be before

this House next year.

With respect to the remarks of the

member for Maillardville-Coquitlam (Mr. Levi), while he's not here, I

hope he will note that when we come to the estimates I would like to

discuss some of the matters that he wanted to raise, because they are

valid matters for discussion in this chamber, and many of the points

which he raised are ones with which I agree. I only hope that when we

come to debate this again he would consider that the independence of

the judiciary is not necessarily indicative of remoteness of individual

judges from what is going on in society. I would ask him to also

consider what the consequences might be if, in making sure that judges

were not remote, we created a situation where questions could be asked

about their independence in any particular case. It is within that area

that I think one has to very carefully examine the relationship between

the judiciary, the bar. the police and society generally.

Perhaps

I'm guilty of saying things to which I have already objected. but I

would just like to say one more thing to the member for

Maillardville-Coquitlam. It is passing strange to me that in Britain,

from which most of our concepts come. When one is at the bar one tends

to be very narrow in scope with regard to one's associates. If one is

[ Page 7682 ]

elevated

to the bench in Britain, then one's scope widens. As judges travel

about Britain on circuit, they regularly meet with community leaders in

the towns they visit, and that gives them an opportunity to broaden

their perspective as they go into the regions of their country. Just

the opposite occurs in Canada. In Canada, as a member of the bar, one

generally has a wide range of acquaintances and many involvements in

community affairs. Yet when one is appointed to the bench, there is a

narrowing of one's associations — and I think that in the matter we

were debating with the member for Coquitlam-Moody (Mr. Leggatt), this

is an element which must not be ignored. I think that in many cases our

society imposes upon judges limitations which are not sought by judges

and are certainly not in the best interest of the discharge of their

responsibilities. So I look forward, Mr. Speaker, to an interesting

debate during estimates, in which, I think, we will find many points of

agreement and maybe a few disagreements.

With respect to the

bill itself, the cost to the citizen is something of very serious

concern to us. It was raised by the second member for Vancouver East

(Mr. Macdonald), who, by the way, mentioned that he perhaps had a

conflict of interest because his brother is a supernumerary judge of

the court of appeal. I would recall to you, Mr. Speaker, that his

father was a judge of the court of appeal in this province.

Interjections.

HON. MR. WILLIAMS:

Well, Mr. Speaker, there is no other way he'd ever get to the court of

appeal, I can assure you, than becoming a member of that court, because

the cases he loses he loses so wholeheartedly that there is no appeal

left, so he is not likely to be before the court of appeal as a

practitioner of the bar.

MR. MACDONALD: I wouldn't lose if I was on the court.

HON. MR. WILLIAMS: That's right. I'm not sure about the court.

Anyway,

costs. The member was really directing his remarks to the matter of

contingency fees, which I know is of great concern to him. That's

another bill, and, hopefully, we will be looking at that matter a

little later. But there is one aspect with regard to costs that I would

like to address. Under this new legislation, and with new technology

and communication, the court of appeal is considering means by which

many of the applications to this court of appeal can be dealt with

without actually appearing in the court itself. We hope to establish a

system whereby a practitioner in Prince George who has a matter which

is coming before the court of appeal, with leave to appeal or an

interlocutory application of some kind, will be able to do so, in

effect, by television. He will appear in Prince George and speak to the

court in Vancouver — they will see him on television and he will see

them. As a result, I think, some significant savings can be made. We

hope to see techniques of that kind introduced soon.

There has been, as the member pointed out, a tremendous increase in the workload

of the total judicial system. This bill is directed to ensuring that at the

court-of-appeal level there can be expeditious treatment of cases which need

the attention of the court of appeal. I'm pleased to say that under the

chief justice and the members of his court the ability to obtain an early hearing

in the court of appeal in this province is much improved over what one would

find in other jurisdictions.

This

bill will contribute to the ability of the court to maintain this

record. With that, Mr. Speaker, I move second reading of this bill.

Motion. approved.

Bill

2, Court of Appeal Act, read a second time and referred to a Committee

of the Whole House for consideration at the next sitting of the House

after today.

HON. MR. WILLIAMS: Committee on Bill 32, Mr. Speaker.

MUNICIPAL EXPENDITURE RESTRAINT ACT

The House in committee on Bill 32; Mr. Davidson in the chair.

Section 1 approved.

section 2.

MR. BARBER:

This is the bill that puts municipalities into political receivership.

Section 2 is the way the government proposes to do so. This is the bill

which has been described by a former Minister of Municipal Affairs as a

fascist document. This is a bill which gives the Minister of Municipal

Affairs, in this

section specifically, the authority to impose his will

and arbitrary political judgment on the course and conduct of municipal

government in British Columbia.

Section 2 allows the

Minister of Municipal Affairs to limit the operating expenditures of a

municipality for the calendar years 1982 and 1983. What authority he

has he may only obtain by demanding it from this Legislature. He was

not elected to exercise it.

MR. RICHMOND: On a point

of order, if my memory serves me correctly, Mr. Chairman, I think we

determined in this House one day last week that the term "fascist" was

unacceptable. I believe, if we look back in Hansard , it will report that it was withdrawn by the member who used it, and was termed unacceptable in this chamber.

MR. CHAIRMAN:

Order, please. Hon. member, to attribute that word in any manner to a

member would certainly be unacceptable. I'm sure, if the member was

making any allusion to a member in the use of that word, he would

withdraw.

MR. BARBER: I withdraw nothing, because I

charged nothing. I described the bill, in the words of a former

Minister of Municipal Affairs, as being a fascist document. I'm

referring to Bill 32; not Bill Vander Zalm. Perhaps the member for

Kamloops didn't understand that. I'm referring to the bill before us,

and the

section which is the operating and governing

section of that

bill, as having been described by a former Minister of Municipal

Affairs as a fascist document. That does not mean its author is a

fascist. I didn't say so.

What's awesome, frightening,

sweeping and tyrannical about this bill is that it gives the Minister

of Municipal Affairs authority that he was not elected to exercise. No

municipality voted that this Minister of Municipal Affairs should be

empowered to set their budgets. No electors actually voted for

[ Page

7683 ]

that anywhere — here in this provincial House or at any municipal

level either. What is frightening about this bill is the incredibly

dangerous opportunity for political tyranny. What is frightening about

this bill is the awesome authority given to one man — in this case, one

Socred, for heaven's sake — to control the future and govern the

opportunities that local government may wish to exercise for itself

This is unacceptable.

The

section which we're now debating

gives the minister the authority to limit the budget of any

municipality for this and the next calendar year. What competence does

he have to do so? What advice will he receive that allows him to deter

mine — more knowledgeably than any mayor, more thoroughly than any

alderman, more ably than any regional director — what they should or

should not spend? When this guy was the mayor of Surrey, he would have

yelled bloody murder if any administration at the provincial level had

at tempted to circumscribe and abrogate his responsibilities as the

duly elected mayor of that municipality. He would have yelled from

bottom to — top of this province. He would have done so as a Liberal,

and he would have done so as a Socred.

But today, as a

minister, he thinks that he is somehow entitled and enabled to

administer the awesome authority this

section gives him.

a socialist government chose to ask for such authority, these

right-wingers opposite would have yelled and screamed and hooted and

hollered, and in my opinion they would have been entitled to do so. No

government, socialist or reactionary, is entitled to ask for this

power, because they're not fit to exercise it. They're not fit because

they're not knowledgeable, they're not competent, and they weren't

elected to do so. On all three grounds they are not fit to exercise

this power. They were not elected to do so and are therefore not

entitled to do so. It is a simple rule of democratic law and democratic

principle. The Minister of Municipal Affairs was not elected to "limit

the operating expenditures of a municipality." He is not personally fit

to do that. He doesn't know enough. He sits here in Victoria in his

great house on Rockland or in his vast office in the buildings and he

presumes, does he, to know what the people of Prince George should be

spending on the improvements their municipality may require? Rubbish!

He is not fit, knowledgeable or competent to exercise the vast

arbitrary and tyrannical powers contained in this section. He doesn't

know enough and can't know enough.

The man who wishes to make himself czar of all the municipalities is not fit

to exercise these powers, and neither is any other member of this Legislature.

Only on home turf could they possibly know enough about what their problems

are to determine what their budget should be. Only in local government are they

knowledgeable enough about the real issues and concerns of those constituents

at the home level to make decisions about what they should and should not spend

money on. Social Credit has a difficult enough time getting its own house in

order without proposing to local government that they now assume responsibility

for that also. Social Credit had an overrun of $225 million last year. They

now propose to turn around and tell local government to restrain their budgets?

If they're not competent to control their own spending, how do they propose

to become competent enough to control the spending of municipalities? The czar

of all the municipalities, the first member for Surrey, may be arrogant enough

to think he is SO competent but no one else believes he is. We certainly don't,

and we know him pretty well.

ask the government once again to apply the Gaglardi test. If you don't

think one of our members would be fit to exercise these vast and

awesome authorities over local government, why should we think any of

you is fit? If you don't think someone of the character of Phil

Gaglardi would be fit to exercise the power you wish to be granted

under

section 2, why should any of us think any individual is so fit?

This

section proposes to replace 2,000 elected persons in British Columbia

with one elected person in Victoria. This bill proposes and this

section allows that 2,000 aldermen, mayors and regional directors be

put out of business as far as assigning budget priorities for the

improvements that they may wish to enjoy in their own local

communities, and instead sees that power given to one man — the first

member for Surrey. In a democratic society that would be considered

laughable, and no government in its right mind would even dare to put

it forward. But in British Columbia, where we have a coalition of

misfit opportunists who are prepared to do anything in order to get

their way, apparently it is not laughable, at least on their parts.

a New Democrat administration had asked for this power, Social Credit

would have yelled and screamed for days, but because the right-wingers

opposite have asked for it, it is now apparently acceptable. The

difference is that we never did ask for that authority. We never used

it, we never wanted it, because we don't believe it should be used by a

central government. We believe local authority belongs in a local place

and should not be trespassed upon by a central government in Victoria.

We believe local authority is more knowledgeable, competent and

accountable than is any centralist authority in Victoria. How on earth

can a Minister of Municipal Affairs in Victoria know what the budget

priorities should be of the people of Fort St. John? He can't. He is

not fit to make that judgment because there is no conceivable way he

could know enough to do so competently. He is not fit because he was

not elected to exercise that power, and there is therefore no

democratic way he could exercise that authority. He is not fit because

no individual representing any government could possibly be aware

enough of local pressures and interests to make those decisions.

This

bill puts out of business 2,000 other elected persons in British

Columbia, representing the many hundreds of municipalities, districts,

towns, villages, cities and regional districts that exist in British

Columbia. This bill has been aptly described by a former Minister of

Municipal Affairs as a fascist document. It is such, and reveals a

dangerous policy and tendency. The tendency of Social Credit toward

centralizing power in Victoria is well known, and it is dangerous. It

is added to by

section 2 of this bill, which is not yet so well known

but it is most certainly equally dangerous. This

section says that no

alderman and no mayor is as able as the Minister of Municipal Affairs

to write a budget, because this

section says that this government may

arbitrarily, capriciously and tyrannically impose its view of budget

priorities on any local administration in the province. It may do so

without appeal. It may do so without further recourse to this

Legislature. It most certainly does so without debate at the local

level. The czar of all the municipalities has an authority under

section 2 that no previous Minister of Municipal Affairs has ever

exercised or even asked for. Fortunately they've never asked for it;

regrettably it is now being asked for in this debate.

[ Page 7684 ]

Has

any local government in the province asked this Social Credit

administration to take away its budget authority? Has any local mayor

or alderman come to this House or to that minister's office and asked

to surrender their jurisdiction? Has a single local elected person in

this province requested of Social Credit that they assume

responsibility for budgeting? The answer to all three questions, I

think, is no. This minister hasn't made any case, even once, that local

government has asked him to assume this awesome authority. He can't

make that case, because it would be a total fabrication if he tried.

The UBCM doesn't go along with this. No local mayor or alderman I've

ever heard of goes along with this. In fact they consistently oppose

it. They are opposing other things this government has been doing even

more strenuously, but no elected person, to the best of my knowledge —

and we've canvassed a great many of them — has asked that

section 2 be

imposed on them. Most of them have said, in fact, that as locally and

democratically elected persons they should be made to be held

accountable for the budgets they write. If the local electors don't

like those budgets, they will be turfed out of office, and that's how

it should be.

That's how we do things in the Canadian

democracy. Maybe the minister doesn't have much faith in our system. In

our system we are regularly held accountable for what we do or for what

we fail to do. In the Canadian system that has achieved some great

success over the last century. Maybe the minister believes in some

other system. Maybe he believes in a system where the central

government regularly and rightfully takes control from local

government, but we don't believe in that in Canada, and we don't

believe in it in British Columbia. We believe that local government has

as authentic, distinguishable and as real an authority as does a

central government in Victoria or a central government in Ottawa. It is

certainly the case under the Canadian constitution: municipalities are

fundamentally the children of the provinces in that they do not exist

as separate entities. That's always been the case in the Canadian

system, and we've always had the authority under the Municipal Act to

determine what further authorities local government may exercise.

The

difference between our side and the Socred side is this, Mr. Chairman.

We believe fundamentally that locally elected persons are entitled to

make decisions and to be held accountable for them. We do not believe

that Victoria is entitled to intervene and tell them what budget

priorities they may set or what local improvements they may choose to

pay for. On this side of the House we believe in local government, and

New Democrats always have. We believe that the central government in

Victoria is not as able, as well informed or as entitled as a local

alderman or a local mayor to make those choices. Since when did the

member for Surrey become competent to tell the people of Kimberley

whether or not they may build a swimming pool at their own expense?

Since when did the member for Surrey become competent to tell the

people of Pouce Coupe that they may or may not build a sidewalk at

their own expense? The consequence of this section, Mr. Chairman, is

that he may now do this. He may now say: "Sorry, your proposed public

improvements in your community are beyond what we have decided is a

proper level of restraint. Therefore you are not entitled to spend that

money."

Mr. Chairman, the danger in that is provable and clear. The tyranny in that

is obvious and explicit. The tragedy of it is that Social Credit thinks that

they can get away with this kind of trash. They actually have so contemptuous

an attitude toward local government that they really seem to believe that they

can get away with this kind of centralist intervention in the affairs of local

government. The minister, in his usual inept way, will get up and say: "No,

we're not trying to take away power; all we're trying to do is restrain

budgets and protect the interests of the taxpayers of British Columbia."

If that were true in the first place, they wouldn't have had an overrun

of $225 million last year, but they did. That's what the Socreds did. If

that were true in the first place, they wouldn't have wine-guzzling ministers

running around...

MR. CHAIRMAN: Order, please.

MR. BARBER: ...spending $37.50 on bottles of wine.

MR. CHAIRMAN:

Order, please, hon. member. When I call the member to order, he'll

cease talking. I'm telling the member at this time that personal

allusions to any other minister are not in order at any time. I would

ask the member to continue with

section 2 on this bill. I'm sure the

hon. member knows exactly what I'm speaking about.

MR. BARBER: What are the allusions? I'm talking about the public expenditure of $37.50. That's public money, Mr. Chairman.

MR. CHAIRMAN: Well, I'm talking about the necessity for the member to remain on the strictly relevant part of

section 2.

MR. BARBER:

Which allows the minister to exercise, as he puts it, "restraint on the

operating expenditures of a municipality." As we put it, Mr. Chairman,

this is sheer hypocrisy. That is, I think, a legitimate comment. The

Chairman, whoever he may be, may not like to hear it, but from our

point of view it is nonetheless true. It is hypocrisy on the part of

government.

MR. CHAIRMAN: Hon. member, the

section we

are dealing with in this particular bill is

section 2, dealing strictly

with the expenditures of a municipality and limitations thereon. Under

the regulations and rules that govern the discussions that can take

place in this committee, the member must be strictly relevant. Personal

allusions or other references are not in order at this point in debate.

MR. BARBER:

The minister's defence of this

section will no doubt be allowed to be

in order. I have no hesitation in predicting that. That is always the

way with ministers' statements.

The minister will say — I

also predict — that this is part of the government's general program of

restraint and is therefore justifiable in a time of recession. That is

not hard to predict either. Because we know he is going to say that, I

would like to say in advance that we don't accept that rationale,

because it's phony and hypocritical. The rationale is inconsistent and

insincere, coming from that government with its record of waste and

extravagance. If local government misspent the public funds as badly as

has Social Credit, then maybe there would be some justification for

this section. The point is, local government has been far more prudent,

cautious and responsible than Social Credit has ever been in

[ Page

7685 ]

the expenditure of public funds. If you add up the operating

expenditures of all the municipalities last year and look at their

overruns, you would not find a $225 million overrun as the result. The

operating expenditures last year were reasonable, prudent, cautious,

accountable and democratically arrived at.

What the minister

wishes to do now is to take the power away from local government to

assess and assign those expenditure priorities, and to give it to

himself instead, as if somehow he is more fit. He is not, and neither

is his government. Local government did not have an overrun totalling

$225 million last year. Social Credit did. If local government behaved

as badly as Social Credit government does, there might be some

justification for this section; but they do not, and there is not. The

minister himself had an overrun on his office budget last year, but do

we see him proposing in this

section to restrain the office budgets of

cabinet ministers? No, he wants to restrain someone else but not

himself. No wonder local government rejects it and no wonder they think

you do not have the fit and competent authority, as you wish to have it

granted under

section 2. The minister overran his own office budget by

$25,000 last year, and now he wants to tell a local mayor not to

overrun his? That is absolute hypocrisy.

MR. CHAIRMAN:

Hon. member, we will have ample opportunity at another time in

committee to discuss the ministerial estimates but this is not that

time.

MR. BARBER: I quite agree, Mr. Chairman. It

goes without saying that I asked the minister to explain that overrun

in question period four weeks ago and he has yet to provide an answer.

He is asking municipalities to exercise restraint, which he himself has

never exercised. He is asking a mayor to be more prudent than he has

been. He is asking local government to be more cautious than his

government has been. He is asking every mayor and alderman in British

Columbia to relinquish their authority to set budgets and he has

instead asked that he personally, and he alone, be given that

authority. This is unacceptable in a democratic community.

The Minister of Municipal Affairs is not a mayor, he is not an alderman

and he is not a regional director. He has held those positions in the

past but he does not hold them currently. He was not elected to be

anything other than a member of this Legislature. He was not elected to

administer the budget of the city of Victoria; he is not fit to

administer the budget of the city of Victoria; he should not be allowed

to administer the budget of the city of Victoria, but he wishes to do,

and thinks he can do, all of these things.

Section 2, regrettably and

tragically, will allow him to get away with it, at least until the next

general election, when the next New Democrat administration repeals

this offensive and undemocratic attack on the rights and privileges of

local government. We will repeal it. We do oppose it, and we do so in

the name of local autonomy, local control, local choice, local

responsibility and local freedom.

New Democrats believe in

local government. We believe its practitioners must be held accountable

for the decisions they make. We believe local government must be held

accountable for the budgets they write, If the budgets are too lean or

too fat the electors will tell them so. Local government gives us an

opportunity to exercise that choice. The tyrannical Minister of

Municipal Affairs may not believe local government should be so

entitled. I wish he would be prepared to say so in public the next time

he goes to Surrey. I wish he would be prepared to tell the mayor of

Surrey, the next time he sees him — if he ever sees him these days —

that he no Ionizer believes that mayor is competent to administer a

municipal budget. I wish he would tell him, plainly and truthfully,

that he no longer believes council and the mayor of Surrey are jointly

fit to administer a municipal budget and to be held accountable for the

consequences if the local electors don't like it.

AN HON. MEMBER: The heavy hand of state centralism.

MR. BARBER:

The heavy hand of Social Credit is the heavy hand we see in this

section today. It is undemocratic, it is authoritative, it is

centralist, and it is a step backward in time. Maybe in some other

countries, they believe in this way of doing business. Maybe in East

Germany or Chile, they believe that the central government has the

right to take such power from local government without appeal, without

debate, without consultation and without request. In some other

countries, maybe they do it that way. And maybe the Minister of

Municipal Affairs thinks we should do it that way here. He did, after

all, campaign with Pierre Elliott Trudeau as a Liberal candidate, and

we know Mr. Trudeau's view of the democratic process. It's not too

strong.

MS. BROWN: We ve got pictures.

MR. BARBER:

We've got pictures of them, campaigning arm in arm together in a

certain federal campaign. Maybe we now see the Trudeau view....

HON. MR. VANDER ZALM: Table them.

MR. BARBER: What do you mean? We have tabled them. We'll do it again. We'll be tabling them in Surrey in the next election.

MR. CHAIRMAN: Order, please, hon. member.

MR. BARBER: That's not in order, I quite agree.

section 2, though, we see the same philosophy of Pierre Elliott Trudeau

that the first member for Surrey espoused when he was a federal Liberal

candidate that we object to in Ottawa and we object to again here in

Victoria. Pierre Elliott Trudeau has the same contempt.

MR. CHAIRMAN: Order, please, hon. member. On

section 2.

MR. BARBER:

I'm discussing briefly the philosophical origins of

section 2. They may

be found in the philosophical attitudes of Pierre Elliott Trudeau, who,

provably, has contempt for the democratic process in this country.

This

section, provably, shows contempt for the democratic process in local

government across British Columbia. The philosophical similarities and

the parallels are precise. Why does the government want this power?

Don't they trust mayors to make decisions? Don't they trust aldermen to

make decisions? Don't they trust regional directors to make decisions?

Don't they trust the local electors to make the decision

[ Page 7686 ]

about whether or not those representatives should continue to handle their affairs?

When

you were the mayor of Surrey, I ask through the Chair, did you not

think you were a fit mayor to sign your budget and to be held

accountable for, it by the electors of your own community? Did you not

think you were fit to do that? What would you have done, I ask through

the Chair, if Dan Campbell or Jim Lorimer, former Ministers of

Municipal Affairs, had said: "Hey, Mr. Mayor of Surrey, Bill, you're

really not fit. We're going to take that power away from you and we're

going to make that decision in Victoria instead"? What would you have

done? Answer honestly when you wind up — if you do — in this debate.

Answer honestly and tell us if, when you were mayor of Surrey, you

would have permitted a government in Victoria to take this power from

you. Would you really? Can you answer absolutely honestly that you

would have agreed to that? I don't think you can. I think if you told

the truth about your feelings when you were mayor of Surrey — a

position to which you were elected clearly and for which you were held

accountable by the people of Surrey.... They expected you to be as

responsible as the mayor, and they elected you. It wasn't an Eckardt

thing; it wasn't a Gracie's Finger thing. They elected you freely. It

was an honest election, not like Gracie's Finger; it was honest.

MR. CHAIRMAN:

Order, please, hon. member. Again I must ask the hon. member to confine

himself to the relevant parts of

section 2. I must also advise the

member that he does try the patience of the Chair on numerous

occasions. There was a time, hon. member, when during committee we

would engage in short questions across the floor, one to another. It

seems that having adopted the 30-minute rule of speaking does offer a

member an opportunity to stray from the relevance of the particular

debate. I have now advised the member on several occasions that he must

confine his remarks to the strictly relevant aspects of

section 2 which

are before us. I advise the member for the last time.

MR. BARBER:

It may be that a lack of patience results in a lack of hearing. What

I've been saying, Mr. Chairman, is that the power the minister wants to

limit the operating expenditures of a municipality is a power that no

mayor in British Columbia would ask the minister to exercise. I'm also

observing that, as it happens, the author of the bill used to be a

mayor. I think it's a reasonable question, to return to the traditional

format, to ask whether or not, when he was the mayor of Surrey, he

would have allowed any minister to take that power from him. I don't

think he would have. I think if he were to give an honest reply — not a

political one — he would agree.

If local government decides

to pay for certain improvements, in our view, they're entitled to

budget for them. If the electors don't like it, they're entitled to say

so by referendum or at the next general election in that municipality.

That's the democratic system. That's how it works — at least that's how

it works in this country. That being the case, why does this government

want the power that, formerly and exclusively, locally elected persons

had access to themselves? Do they really think they are more fit and

more knowledgeable? Do they really think they know better than the

government of Prince George, the government of Kimberley, Kamloops or

Vancouver? Do they really believe they know more? If so, that is an

astonishing level of arrogance. It's not acceptable, it's not

defensible, it's not necessary, it's not right, and it shouldn't be

here.

When you were the mayor of Surrey, you would never

have permitted this sort of thing to come through. Think back to the

days when you were the mayor, and think again about this section. If

you do, you'll withdraw it.

HON. MR. VANDER ZALM: I

feel I must answer some of the points raised by the member. Certainly I

won't stray as he did, but I need to answer some of the points. The

member repeatedly said there was arrogance on this side of the House

and on the part of the minister and the ministry in proposing the

legislation, particularly this section. I must say to the member that

perhaps the height of arrogance, when talking about the democratic

system, is to ignore and abuse the most important part of that

democratic system, the legislature.

I noted the reference to

a so-called $225 million overrun. The only deficit I can recall which

remains a legacy was in 1975, when the NDP was government.

certainly believe in local government. This bill, more particularly

this section, does not take away from that at all. As a matter of fact,

I think the evidence is there that we work with local governments. For

example, we have not forced communities to amalgamate.

Certainly

this is the most important

section of this bill. This bill is a large

part of the thrust of the government of British Columbia to bring about

economic stabilization for the province, and to bring about restraint

in all governments: local government, provincial government, school

boards, hospital boards — you name it. That is a program of the

government. Contrary to what the member said, this section, as would

the bill and the whole restraint program, would receive my support if I

'were still mayor of Surrey. It is supported by every mayor and

alderman I've spoke to across the province.

MR. BARBER: Name one.

HON. MR. VANDER ZALM:

Yesterday we had a good visit with a long-term mayor from the Fraser

Valley, Mayor Ferguson of Abbotsford. He comes to mind immediately

because I'm sitting next to the member for Central Fraser Valley (Mr.

Ritchie).

Interjections.

HON. MR. VANDER ZALM:

The mayor of Fort St. James, the mayor of Surrey, the mayor of Langley,

the mayor of White Rock, the mayor of Prince George, the mayor of

Langley District, the mayor of Burnaby: they all support the

stabilization program; they all support the restraint program. They

realize as much as we do that government must at this time bring about

the necessary restraints to assure economic recovery, which will

perhaps come to British Columbia before it comes to any other area in

North America because we are doing something about it. I'm not the only

one who would be a supporter of the restraint program were I still

mayor of Surrey; all the mayors I mentioned — and I could go on with

the list — support the restraint program, those mayors and aldermen who

make up the councils.

Mr. Chairman, people in every part of

my community support it; regardless of their political stripe, they are

supportive of the initiatives taken by, this government, as evidenced

[ Page 7687 ]

this bill and this

section of the bill. People in my community and in

every community throughout British Columbia support it. The only people

continually fighting it are the NDP opposition in the Legislature. They

are fighting restraint; they are fighting the attempts of this

government to bring government under control through this

section and

this bill, and to prevent huge tax increases at whatever level of

government in British Columbia. It's not the people who are fighting

it; it's not the municipal councils; it's not the mayors and aldermen.

No, it's the municipal affairs critic on the other side of the House

and the members of the ND