2014 Legislative Session: Second Session, 40th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of

Debates of the Legislative Assembly

(hansard)

Tuesday, March 11, 2014

Afternoon Sitting

Volume 8, Number

ISSN 0709-1281 (Print)

ISSN 1499-2175 (Online)

CONTENTS

Page

Orders of the Day

Committee of the Whole House

Bill 3 — Missing Persons Act (continued)

K. Corrigan

Hon. S. Anton

N. Simons

G. Heyman

D. Routley

D. Eby

A. Weaver

Reporting of Bills

Bill 3 — Missing Persons Act

Third Reading of Bills

Bill 3 — Missing Persons Act

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Forests, Lands and Natural Resource Operations (continued)

A. Weaver

Hon. S. Thomson

V. Huntington

B. Routley

N. Macdonald

G. Holman

C. Trevena

N. Simons

D. Donaldson

J. Rice

[ Page 2085 ]

TUESDAY, MARCH 11, 2014

The House met at 1:33 p.m.

[Madame Speaker in the chair.]

Orders of the Day

Hon. T. Lake: In Committee A, Douglas Fir Committee Room, we continue with the estimates of the Ministry of Forests, Lands and Natural Resource Operations, followed by the Ministry of Children and Family Development.

In this chamber we have committee on Bill 3, the Missing Persons Act, followed by the Park Amendment Act and, if time, the Natural Gas Development Statutes Amendment Act.

[1335]

Committee of the Whole House

BILL 3 — MISSING PERSONS ACT

(continued)

The House in Committee of the Whole (Section

B) on Bill 3; D. Horne in the chair.

The committee met at 1:36 p.m.

M. Farnworth: Hon. Chair, I ask leave to make an introduction.

Leave granted.

Introductions by Members

M. Farnworth: In the precincts today we have someone of considerable importance not only in my community but in Metro Vancouver. That is Greg Moore, who is the mayor of Port Coquitlam and the chair of Metro Vancouver. He's over here today for a number of meetings.

I just wanted to say that he has done a terrific job of representing our city. I'm quite sure that he will have no trouble getting re-elected in November. Anyway, would the House please make him most welcome.

Debate Continued

section 7 (continued).

K. Corrigan: I'm going to, one more time, just ask a question about

section 7(3)(a).

Maybe before I do that — just for the vast viewing audience, and we have a few people up in the gallery today — this bill is the Missing Persons Act, which gives police officers the ability to seek an order for access to records when somebody is missing — records like cell phone text messaging records, browsing history, and so on. It's an important expansion of police powers.

We're supporting the bill. It's a bill that will help police get information through civil channels rather than criminal channels if somebody is missing. On the other hand, it involves a significant expansion of police powers and potential invasions of people's privacy. I think everybody in this House agrees that we want to find the right balance, when you're saying that you will have access to missing persons or third-party records in the case of when somebody has gone missing.

We're on

section 7. With regard to 7(3)(a), which says that a justice can make an order under this section. This is when we're dealing with people who are minor or vulnerable and who are either with a third party or were last seen in the company of a third party. "A justice may make an order under this

section if the justice is satisfied that (

a) the member made reasonable efforts to obtain the third party's consent,

if applicable."

My question to the minister: whether a third party had or had not been found, would not the member have to make reasonable efforts to obtain the third party's consent?

[1340]

L. Reimer: I'd like to request leave to make an introduction.

Leave granted.

Introductions by Members

L. Reimer: It's my pleasure today to introduce a man who has spent many volunteer hours in the community of Coquitlam, a man who is currently president of the Coquitlam Sharks swimming club: Mr. Carl Trepanier. Would the House please make him welcome.

Debate Continued

Hon. S. Anton: If the person is present and available, the officer makes reasonable efforts to obtain their consent. That is when it's applicable.

If the person is not present, can't be found, it's not applicable. The police officer may make reasonable efforts to find the person, but if they actually cannot find them, can't get their consent, then that's the end of it in terms of finding their consent, and they go to the justice and make their application accordingly.

K. Corrigan: If the person was not to be found, is it not true that the member would have to have satisfied the justice, in the application for the order, that they had made reasonable efforts to obtain the third party's consent?

[ Page 2086 ]

Hon. S. Anton: The answer is yes.

K. Corrigan: Then, what the minister is saying is that the member would have to demonstrate to the justice that the member had made reasonable efforts to obtain the third party's consent. So that

section would be applicable. To me, it is redundant. It is redundant. I guess I'll just say that for the last time.

I do not understand. In that example, the minister has just said that the member would have to demonstrate that reasonable efforts had been made to obtain the third party's consent. Therefore, it would be applicable in that case where the person wasn't found. Therefore, the one situation where the minister has talked about as why you would need those two words…. It wouldn't apply in that case. I don't see any reason to have those two words in there.

One situation where maybe the words "if applicable" could be there would be if the third party had died. Would the minister agree?

Hon. S. Anton: If the third party is deceased, we're in the second part of 7(1)(a), which was that the missing person may have been "last seen in the company of the third party." The third party is now somehow found deceased. Obviously, the police officer is not going to get their consent at that point, and they will go to the justice and make their application accordingly.

[1345]

I'm wondering if the minister could just give me an example of what is contemplated in terms of types of restrictions that might be imposed.

Hon. S. Anton: The kind of order that a justice would make, I would anticipate, would be, for example, to determine that the scope of the access requested by the police officer was consistent with the need of the police officer in the course of the investigation.

K. Corrigan: That certainly makes sense, but it's not explicit. Would the minister assume that the judge or justice that is making the order would understand to limit that in order to not unduly invade privacy? Is that what the minister is saying?

Hon. S. Anton: The justices who would be taking the applications under the Missing Persons Act are the same as the justices who give out search warrants, for example. This is their area of expertise. They will limit the scope of the order as appropriate — for example, in terms of time, in terms of which records and those kinds of things.

I don't want to put a limit on it here, because there may be other things that they conclude are needed. But it's their job to balance the different interests and to make sure that the order is appropriate for the request which is made.

K. Corrigan: In framing this bill, did the minister contemplate or receive advice about the possibility, for example, that a justice would order that the information be destroyed at some point?

[1350]

K. Corrigan: I'm asking this question now, and I will ask more questions related to this topic when we get to

section 20. We know that

section 20(2) says: "For certainty, this

section does not prevent information in a record accessed under this Act from being used for the purpose of a related criminal investigation."

We'll get into discussion later about what "related" means, but I think it's important to understand, to get a sense of, what justices may be looking at in terms of the things that they are considering, the orders that they're making, the limits that they're placing in those orders on access to or use of information. The implications for individuals whose records are being accessed could be fairly serious, particularly if it does turn into, at some point, a criminal investigation.

I know that these are two separate processes, but we have talked about — the minister has talked about, as well — the possibility, with regard to a couple of different sections, of it turning into a criminal investigation.

Does the minister anticipate or expect that the issue of whether the investigation, the search for the missing person, could turn into a criminal investigation…? Would it be expected that the justice would be taking that into account?

Hon. S. Anton: I cannot presuppose all the different sorts of circumstances that a police officer might present to a justice, but it is the justice's job to consider all the information that is given to them and all the information, indeed, that they seek before they make their order.

I will once again emphasize that if it's a criminal inves-

[ Page 2087 ]

tigation, it's not under this act. This act is for a civil investigation. The justice will have that in mind, presumably. Because justices are trained, they know how to apply the different kinds of considerations that they need to think about in terms of the orders that they grant.

K. Corrigan: Well, I'll ask the minister this. In terms of preparing this bill, doing the analysis and research on it, did the minister or staff think about whether or not there would be, quite often, times when an investigation that started out as a missing-person investigation involving a request for access to records would then change into a criminal investigation? Did the minister contemplate that?

[1355]

We've talked about it, but I don't know whether there's any analysis that says, you know, we think in 20 percent of missing-person cases that it's going to turn out that there's been an abduction — I think that number is probably very high — and then it's going to turn into a criminal investigation. Was that kind of analysis done?

Hon. S. Anton: It has always been recognized that some of the missing-persons investigations may well turn into criminal investigations, but there is no estimate as to how many of them might be of that nature.

K. Corrigan: Well, I find that a little disturbing when one considers the impact that could be felt by an individual and the powers that the police have. I think we've covered this ground in different ways several times. Police powers are being significantly expanded here, and to me, it seems that there would be a significant number of cases that would start off under the civil act and then turn into a criminal investigation.

The act contemplates that. The act, in

section 20, says that nothing prevents information in a record accessed under this act from being used for the purpose of a related criminal investigation. Surely, it was contemplated — the impact that that could have on individuals if that information is used in a subsequent criminal investigation, whether it's of a third party that was with the person, an abductor…. Or possibly — we'll get to exactly what "related criminal investigation" means later — it's the victim themselves, although my understanding is that's not the intent in this bill.

The powers are great, and the impact of accessing that information is important. We're not clear whether the powers are greater than the powers under the Criminal Code. But I just want to make sure that this won't end up being used — or find out whether it can be used; maybe it's perfectly appropriate — as a vehicle for police to access information that they otherwise wouldn't be able to in a subsequent criminal investigation. That's why I raise it. I don't know if the minister has any more comments on that.

Hon. S. Anton: I have spoken several times on the difference between the civil remedy and a criminal investigation, and I have nothing further to add to those comments.

Section 7 approved.

section 8.

K. Corrigan:

Section 8 gives an obligation to comply with a missing-person record access order and third-party record access order. It imposes an obligation. It says: "A person against whom an order is made under

section 6 or 7 must, within the time specified in the order, (

a) give access to the records specified in the order, and (

b) if the person is unable to locate a record specified in the order, provide members of the police force with a description of the efforts made by the person to locate that record."

I'm wondering if the minister could let me know: what are the penalties or enforcement mechanisms if somebody does not provide access to the records?

[1400]

Hon. S. Anton: The offence

section is in

section 24, and it is an offence to fail without reasonable excuse to comply with

section 8.

K. Corrigan: I had read that previously. Frankly, I hadn't read it for a while, so thank you for that.

I wonder as well, on

section 8, what the minister would contemplate in terms of what would be necessary in terms of "a description of the efforts made by the person to locate that record."

Hon. S. Anton: The second part of

section 8(

b) is the description of a person's efforts to find a record. It's really a matter of evidence, in terms of the offence, whether or not the efforts are reasonable. It would be impossible to define them at this point. In fact, if an offence was charged, it would obviously be a matter for the court to decide whether or not the efforts were reasonable.

K. Corrigan: I was trying to get more of a practical sense of what that description would have to entail. I guess it could just be a letter back saying: "We couldn't find it." I'm just trying to understand the practicality of the application of

section 8(b).

Hon. S. Anton: This would be very fact-specific, depending on the nature of the order, the terms in the order, what the person was able to do, what the person was able to communicate to the police officer. It would be a question of fact on the occasion.

K. Corrigan: I'm wondering if the minister has con-

[ Page 2088 ]

templated, in terms of being required to provide access, whether there are circumstances that the recordkeeper — a cell phone provider or GPS records, and I have no idea where GPS records are kept, or any number of things….

[1405]

Has the minister either consulted with some of those industry organizations or thought about whether or not there are situations that the person who has the record would not want to provide it and might kind of balk at being required to do that?

Hon. S. Anton: Staff consulted both with police and also with other jurisdictions as to their experience with this act, and generally, there don't seem to be any issues around this section.

People know what records they have and know whether or not they'll give them up. I expect there are some organizations that give them up fairly willingly, and there may be others who are less willing, but that's how life unfolds.

K. Corrigan: I could probably ask this question in either this

section or

section 9. I'm concerned about extraterritorial records. Would this act compel, for example, an American houser of information and records to provide that information if there was a B.C. order that ordered that?

[1410]

Hon. S. Anton: The order is not generally enforceable in other provinces or in the United States. If any company in one of those other jurisdictions had a branch office here, the order would be enforceable against the branch office. Where other provinces have similar legislation, it may be that an order from this province would allow them to obtain a similar order in their province, in the other province — Alberta, for example.

K. Corrigan: So the minister is saying that if there is similar legislation, say, in Alberta, then the police from here could go — or by telephone — and get an order for the production of records under

section 6 or 7 because the act is similar, but not other provinces that don't have similar legislation. Is that what the minister is saying?

Hon. S. Anton: The police here would need to seek the assistance of the police in another province — say Alberta — and use the legislation of that province to obtain an order. We're not in a position here to define what that legislation might be across Canada, but what provisions the other provinces may have are the provisions that would be able to be used.

K. Corrigan: The minister said that if there were records — I'll use the United States as an example — that were kept housed in the United States…. The minister said that with respect to records from elsewhere, including the United States, if there was a branch office, they could be accessed.

What are the obligations, then, of a company like that to provide that information, particularly if it's very personal information where there might be privacy concerns about it? Would that company not possibly say, "Look, we have this information. It is not subject to your order. But also, our branch plant is not a place that we are willing to provide this very private information," even though there is a presence in British Columbia?

Has the minister thought about those kinds of scenarios and problems? I'm wondering if we could get any more light shed on that.

[1415]

Hon. S. Anton: Companies in British Columbia are subject to British Columbia laws, but that being said, there may be challenges. There may be companies that are unwilling for some reason or another to comply with the order. The police will work with those companies. We expect them to be good corporate citizens. But at the end of the day, if they refuse to disclose it, then we're back in

section 8 territory.

Whether or not it is an offence for them to refuse to give up the information would, again, be an evidentiary issue if it were to go to a prosecution.

K. Corrigan: I am wondering if the minister has considered, in framing this bill, what, if any, impacts there could be from the American Patriot Act.

Hon. S. Anton: I'm not going to purport to be an expert on the American Patriot Act, so I do not have an answer to that question. It's a legal issue, and I will not be answering that question today.

K. Corrigan: I would think that when the minister is framing a bill to bring to this House that has significant implications for the use of and access to information in a missing-person case, that would have been something that was thought about.

Obviously, information is something that is fluid. It can travel all around the world in seconds. There are certainly laws in other jurisdictions, apparently, that could impact access to the information.

What I was asking about was whether the minister had explored this — not whether or not the minister was an expert. So I guess the question, again: were the implications, if any…? Was there a thought given to whether or not the Patriot Act could have any impact on the access to information that could be accessed under this act?

Hon. S. Anton: The extraterritorial application of this act may look different in every country. Again, I am not going to purport to offer advice as to what its application

[ Page 2089 ]

would be in other countries.

What we're worried about is how it is used here. We know, from consulting with other provinces, that an order given here could be used as a basis for an order in a second province. But that's as far as it goes with extraterritorial application.

[1420]

K. Corrigan: Well, I don't purport to be an expert on the Patriot Act either, but I'm just trying to get a sense of what kind of exploration, what kind of thought, what kind of analysis went into this bill and whether or not there were concerns about the fact that information can be stored in various places and now, in an instant, can be accessed.

When the laws being applied are local laws, are B.C. laws, it could create a problem. I was interested, really, in whether or not those concerns had been explored.

I know, certainly, that with regard to B.C. government decisions about storing of information and so on, much of the information that would likely want to be accessed under this act probably would be government information, like drivers' licences and many other pieces of information in records.

I don't think it is unreasonable to ask about it and to find out whether government has contemplated…. Even, eventually, maybe questions about where information is housed may make a difference in terms of the government's decisions about where to house that information. I was just asking the question about whether there had been consideration of that or not.

I understand that the minister isn't an expert on the Patriot Act — nor am I — but the impact that extraterritoriality has, to me, seems like a reasonable thing to consider in framing this act. I think often the records…. We will find that when an application is made for an order…. I don't know what percentage of the time, but I would imagine that a lot of the records are going to be housed in different jurisdictions and may not be easily accessible.

Remember, the minister has said many times that the purpose of this act is to find missing persons. Usually there's a fair amount of urgency, and I'm just trying to get a sense of what kinds of barriers there might be, what has been contemplated and whether the minister has thought out what those barriers are going to be and how they could be dealt with.

Section 8 approved.

section 9.

K. Corrigan:

Section 9 describes the types of records that can be subject to a missing-person record access order and third-party record access order. These would be the records of either the third party who was last seen with the missing person or the missing person themselves, and they include "records containing contact information."

I know we've had a discussion about this before, but I just want to ask the question again. When this talks about contact information, must it be contact information of the missing person?

[1425]

Hon. S. Anton: The first part of the

section says: "The following records in respect of a missing person or a third party…may be specified…." The "records containing contact information" does apply to records in respect of the missing person or the third party.

K. Corrigan: Yes, I didn't mention the third party — the missing person or the third party. But we get back to that, to me, somewhat nebulous term "records in respect of."

With regard to records of either the missing person or a third party — or "in respect of a missing person or a third party" — containing contact information, could it be contact information of somebody else who is not the third party or the missing person, if that contact information could lead you to the missing person?

Hon. S. Anton: The

section 9(

a) is intended to refer to the missing person or the third party, but I would note as well that

section 9(

n) gives the justice power to consider other records as appropriate, which could, hypothetically, be for another party altogether whose contact information might be helpful to the investigation.

[1430]

K. Corrigan: I appreciate the minister's answer. We had a lot of discussion yesterday where the minister, frankly, refused to acknowledge that there could be records that were another party's.

We now have an acknowledgment that under "(

n) any other records that the justice considers appropriate," it could be something other than the records of the missing person or the third party, which is different than what we heard when we went through a long discussion of this yesterday. We didn't really hear anything clearly.

I guess I'll give an example and just get a confirmation from the minister on this. Say Ann goes missing, and Ann is, maybe, a young woman. Ann was last seen with Bob, and Bob has also disappeared. So that would be the third party. But a third person, Joanne….

Through the investigation, the police officer, in trying to find this missing person, learns that the third person, Joanne, has a daybook at her house which contains notes that had to do with her discussions with Ann, who is missing, about where it was that she was going to go and that she was going to go somewhere with Bob — maybe the address of where they are going to go, because she's a very good friend of Ann's.

[ Page 2090 ]

Is that the type of information that it is possible a judge is going to provide access to? It is not the information or the record of either Ann or Bob, but it is the record of Joanne, who is neither the person nor the third party. Could that be the subject of an order under this section?

Hon. S. Anton: Let's not lose sight of the purpose of this act. The purpose of the act is to find missing persons. It can be a person, perhaps, who has been missing for a while or a person who's just been missing for a few hours. The police, under this act, have civil authority to go and look for that person. However, in terms of finding records, they do it under the supervision of a justice or under the order of a justice.

The records that they may look at or may apply for are listed in

section

Section 9 has a general

section at the end: "any other records that the justice considers appropriate." The justice will consider a record appropriate if it is helpful to finding the missing person. I would expect that that would be the test that the justice would apply.

K. Corrigan: Is that a yes?

Interjection.

K. Corrigan: The minister just said she's not going to answer the question.

Hon. S. Anton: I answered the question.

K. Corrigan: I'm just trying to be very clear about the extent of the powers under this act. I still am not convinced that the words "in respect of" in "The following records in respect of" would preclude access without having subsection (

n) in there. But now it's very clear — to me, at least — from what the minister said, although she will not confirm it. I was trying to reframe, in practical terms, what it was that's said — that it could be "any other records."

I'm going to assume that other parties…. Not the person that's missing, not the third party but records of other parties would be accessible under this act. If the minister wants to disagree with what I've just said, I offer the minister the opportunity to stand up and say that's not the right

interpretation.

[1435]

Hon. S. Anton: The answer remains the same, which is that

section 9(

n) says: "any other records that the justice considers appropriate." Those will be records that in the justice's wisdom are needed by the police, presumably on application of the police, to find the person, because the point here is to find the missing person.

N. Simons: Thank you to the minister and staff for answering questions on this.

I just wonder, with the part of this act that relates to third parties and, I guess, in this case now, fourth parties…. Was that part of legislation from Alberta or Manitoba?

Hon. S. Anton: The acts between Alberta, Manitoba, Nova Scotia and British Columbia are similar. They're consistent in their intent, There are differences between the four of them — but generally consistent in what they're attempting to achieve and in the direction by which they get there.

N. Simons: Specifically, do any of the acts in the provinces the minister has just mentioned have provisions for accessing third-party records without notifying those third parties? And do they have access to any other record of any other person? I understand the minister just said the answer was yes. It just seems to me that we're going a few steps further than other legislation. Am I incorrect in that?

[1440]

Hon. S. Anton:

Section 9 is very similar to

section 3 of the Alberta act.

N. Simons: I just need to have some clarification. Forgive me if it's repetitive, but does

section 9(

n) apply to any other records belonging to any other person heretofore unmentioned in the act?

Hon. S. Anton: Yes. As I have answered previously,

section 9 gives a power to the justice — "any other records that the justice considers appropriate." Again, this will be by application of the police officer to the justice and then the justice's decision-making to decide what records would be helpful. Obviously, the records — it's not a fishing expedition — need to have a demonstrated purpose to find the missing person. The goal here is to find the missing person.

N. Simons: Well, I appreciate that it's not a fishing expedition, but then why give out a boat and five fishing rods? What is fundamentally at issue here is not how the law will be applied but whether the law allows certain applications to take place.

Can the minister inform us of any other legislation that allows third- or fourth-party records to be…? We're talking here about not just location or a phone number. We're not talking about googling them and finding their postal code. We're talking about identification information — physical descriptions, distinguishing marks, telephone, cell telephone records, text messaging, Internet browsing history, GPS tracking.

This is potentially people who may not know or…. I'm kind of surprised I'm even asking this question. Video records, school records, health records, employment, ac-

[ Page 2091 ]

commodations, financial, banking records — everything. We're potentially allowing the police to apply to a court for access to a party who, in fact, may have no notice that their records are being requested. I don't see anywhere where that would be addressed.

We have third-party records that that third party may never know were accessed, and now we have what looks to me like yet another subgroup of people who could, potentially, have their entire personal history accessed without ever knowing it. Am I missing something?

Has the minister considered any of the privacy issues involved in this particular part of the legislation? If so, what were the issues that the minister considered, and what were the trade-offs that were arrived at in order to come up with

section 9 — (

n) in particular?

[1445]

Hon. S. Anton: An order made by a justice under this

section is subject to relevance, and it is subject to the goal of finding the missing person. The goal is to find the missing person.

N. Simons: I appreciate the Attorney General would like to remind us that the title of the act left alone would allow for a great deal of discretion among police. I think that would, ultimately, perhaps, provide more leeway and more latitude and more discretion than the minister is allowing under this current act.

If we actually eliminated most of the sections out of the act and just said, "Do whatever you need to do to find a missing person," without any limitations or any sort of oversight or due process…. These are the fundamental values that we're talking about.

First of all, I couldn't find the reference in the Alberta legislation to third-party information. Maybe they had it planned, but I have failed to see it. Maybe I misheard. But I think that what

section 9(

n) does is sort of open up a brand-new door, potentially a fishing expedition. But who's to decide whether it's a fishing expedition, if you catch anything or not?

Obviously, I completely agree with the goal of the legislation. I'm just concerned that the tool being used might be the wrong tool, or in some situations the wrong tool. I wonder. If people subject to

section 9(

n) have their records accessed, is there any requirement that they are informed of this?

Hon. S. Anton: We covered this under sections 6 and 7, the notice requirements.

N. Simons: Maybe I missed it. Maybe I haven't read Hansard thoroughly. Maybe I haven't read the Blues completely. But I don't remember any discussion about records pertaining to

section 9(n): "any other records that the justice considers appropriate." I don't know. We haven't talked about whose records they are or how they are justified in being considered appropriate, whether they are told that their health records will be accessed, whether they'll be told before or after.

[1450]

Is it possible that there's a gap in here, in that? Maybe that needs to be looked at again to ensure that their opportunity….

I understand the importance of discretion. Police operate with discretion, and I completely respect that, but when legislation allows for complete

interpretation, that's different than discretion. Police forces operate within the fairly strict margins of the law. Here it's just that the margins are opened up wide.

I just think, in the interest of protecting privacy or at least the perception that we're protecting privacy, that this seems to contradict that. I worry that the minister's response will be that she answered this already. If she said that, could she point to a specific answer to a question as to whether or not the records or the people involved who are impacted by

section 9(

n) are going to be told that their records are going to be accessed before or after the conclusion of a missing-persons investigation?

Hon. S. Anton:

Section 9 is used by sections 6 and 7. We have gone through in some detail about

section 6. It's about the missing person. They're missing altogether. They don't get noticed, because they're missing. On

section 7…. There are no discussions in

section 7, and we did canvass those earlier in these proceedings.

[1455]

K. Corrigan: When we were discussing

section 6 and

section 7, the minister was very loath to agree that a search or a demand for records could apply to somebody other than the missing person or the third party who may be in the company of or was last seen in the company of the missing person. We got equivocal answers on that.

I believe that it applies to other records, records of other people, but now, under

section 9, I believe we have a very clear answer from the minister. I'll have to look back at Hansard later, but I believe we had a clear answer under that with regard to

section 9(n) — that there was a power given under that

section to the justice to allow access to any records of anybody if they would lead to the missing person.

The minister seems to be making more of a commitment that those kinds of records would be accessed under

section 9(n), where the power of the justice will allow access to records that the justice considers appropriate. If that is the case, if that piece is widening the definition of whose records can be accessed, then I think the questions that my colleague has brought are perfectly legitimate. It opens it way up, and then it certainly raises the question again about notice, because notice is only referred to with regard to

section 7.

It would seem to me that there's nothing that says

[ Page 2092 ]

that if records are going to be accessed under

section 9(n), there has to be any notice to anybody. The only notice talked about is in

section 7, where you have to try to make reasonable efforts to obtain the consent of the third party, and then no notice is required.

Unfortunately, as we've said earlier, our amendment would have required that notice be given to either third parties or individuals whose information had been accessed.

[R. Chouhan in the chair.]

I do think that

section (

n) certainly does seem to widen the scope of what kind of information can be accessed. It may or may not, but certainly, the minister's answer would indicate a widening of the scope. That would be my

interpretation. Am I correct?

Hon. S. Anton: I'll just draw the member's attention to the first part of

section 9, which is that the record is always in respect of the missing person or the third party. The order is given by the justice. The justice puts the appropriate terms on the order.

Certainly, the intent of

section 7 is that reasonable efforts be made to get consent, actually, of the third party, if applicable, but sometimes the third party may not be around. That may be the issue, which is that the missing person was last seen in the company of the third party and the third party cannot be found either.

[1500]

The records must always be in respect to the missing person or the third party.

K. Corrigan: I did see that part of the section. I guess the problem that I'm having is we seem to have a bit of a moving target here from the minister in terms of whose records can be accessed. I'm going to enjoy reading Hansard over the next couple of days to try to pin this down.

It does seem that the minister is now saying that it could be some other party who has their records accessed. I would assume the minister is then saying that other party, not the third party and not the missing person, would have the same requirement for notice. I'm not really clear, but I am going to read the Hansard later to try to get a better idea.

I wanted to ask some more in-depth questions about the types of records that can be accessed under the Missing Persons Act. Just to get an idea, records containing contact information — I assume that would be things like drivers' licences, copies of drivers' licences, maybe bills with addresses. What kinds of things are we talking about there? Just a couple of examples.

Hon. S. Anton: I think those examples are good ones. A driver's licence may have an address on it. B.C. Hydro may have a bill with a person's contact information on it. It'd be that kind of record.

K. Corrigan: I wanted to find out specifically, with regard to video records, including closed-circuit television footage…. The minister has said several times that this is not to be a fishing expedition.

To try to get a sense of what is contemplated — I understand that the justice will be making the decision — would the minister expect, when we're talking about CCTV…? Say somebody believed that the missing person might have gone downtown. That was the last place they were seen — maybe seen on SkyTrain going downtown or getting off at a particular SkyTrain stop in Vancouver. Let's say they're in Vancouver.

Would the minister contemplate that it would be appropriate or expected that the police could apply to a justice to have a look at all the CCTV tape for downtown Vancouver, for example, in order to see if they could find that person?

Hon. S. Anton: I think it would be rather challenging to look up the video records of every camera in downtown Vancouver. I don't suppose even the most diligent police officer would necessarily want to do that.

It's important that these records…. They need to be established to be relevant, and they need to be established to do something to further the investigation towards the missing person. How exactly video records would be sought, including the closed-circuit television footage, would be a question of fact, really, for the officer to give to the justice and for the justice to rule accordingly.

K. Corrigan: Well, I appreciate that, but sometimes judges, in making their decisions, particularly on appeal, go back to the record of this House and the discussions and the debate to get an understanding of what the intention was.

[1505]

While I agree that it would be a judge that would be making that decision, the intent of this House is relevant or could be relevant in terms of determining exactly how wide-ranging the power would be and what could or would be allowed. Part of the problem that we have, using that example of closed-circuit television footage, is that relevance is tough to determine until after the fact. A police officer could say: "Look, we think somewhere on this tape…."

I don't know how many cameras there are downtown. Probably many in downtown Vancouver. I just don't know. But if the police officer could say, "I think that this person might be found on tape; we don't know," that's somewhat of a fishing expedition until you've seen the tape. Once you've seen the tape and they're on it, it's completely relevant. I'm wondering if the minister grappled with those kinds of issues — balancing privacy with

[ Page 2093 ]

wanting to access any relevant information.

Remember, we're talking about people who are missing. A police officer might in fact think that in order to find a loved one who is missing, it is worthwhile to go through all the CCTV tape. I'm wondering if the minister could tell me about how much thought has gone into trying to figure out exactly what that means and what the minister would contemplate would be a reasonable boundary for an order.

Hon. S. Anton: I refer the member back to sections 6 and 7, which of course refer forward to

section 9. In sections 6 and 7, in each case the officer has to establish that he or she has reasonable grounds to believe that the record "may assist the police...in locating the missing person" in each case and that the record is "in the possession or under the control of the person" in each case. That test is obviously a test that has to be established before the justice in applying for the order.

N. Simons: I tried to find any reference to third-party information in the Alberta legislation, in the Nova Scotia legislation and in the Manitoba legislation, and I was unsuccessful. Could the minister please repeat what sections of these acts refer to third-party access to information and disclosure to those third parties about the access to their information?

Hon. S. Anton: In the Alberta act they use the words "another individual" rather than the words "third party."

[1510]

N. Simons: Well, I guess I missed that. There doesn't seem to be any reference to notification that the other person's records are going to be accessed and whether or not they have the right to be told that their personal information has been accessed during a missing-persons investigation.

Hon. S. Anton: I think I have the question right. The question is whether or not there is a notification provision in the Alberta legislation. Perhaps I can get a nod from the member. Yup, that was the question.

The answer is that in subsection 3(4), I believe it is, of the Alberta legislation it says: "…another individual, the justice of the peace may make an order under subsection (1) requiring a person to make available to the applicant, or to provide the applicant with copies of, any records…in respect of that other individual…." But there is no notification or notice requirement in that

section and, I don't believe, in other sections as well.

K. Corrigan: I wanted to ask about subsections (k), (

l) and (m). I suspect I know the answer, but I want to ask the question anyway. Why is the type of employment information, health information and financial information not restricted, like it is under

section 15, where there is an emergency demand for records — in other words, when they're not going before a judge or justice?

I'm wondering whether the minister could explain why there is a difference between the two sections in terms of the limitations on the type of information that can be accessed.

Hon. S. Anton: The question is judicial authorization. In

section 9 there is judicial authorization. A justice decides the relevance of the record and the use of the record.

Section 15 is under the emergency demand. There is no prior judicial authorization, so the scope of the request is narrowed.

K. Corrigan: I suspected that that would be the answer, but I just wanted to check on it.

[1515]

This

section also says that the type of information that has been…. Information is listed — all those different subsections, all the different types of records. Then at the end, after it says, "any other records that the justice considers appropriate," it says: "any prescribed records." That means that there could basically be a regulation and that other records could be included in that long list.

I just want to say that I find it troubling sometimes when legislation does not contain a complete list. This is very wide-ranging already. Of course, the judge has the ability to authorize the access of any other records, so it's already pretty wide open. But I wanted to make that point.

Maybe if the minister could confirm that what we're talking about when we say "any prescribed records" is anything that there might be regulation for in the future. Is that correct?

Hon. S. Anton: The "any prescribed records" does give the Lieutenant-Governor-in-Council the ability to add to the list in

section 9. Obviously, a regulation is public. One of the examples of something that might be added to that list would be emerging technologies.

K. Corrigan: The list of records which can be specified in an order for access under

section 6 or 7 includes "telephone and other electronic communication records including, without limitation, (

i) records related to signals from a wireless device that may indicate the location of the wireless device, (ii) cellular telephone records, and (iii) text messaging records."

I've got a couple of questions about this, because it's a lot of information that is potentially accessed. When there's a reference to text-messaging records, is there a limit to that? Could that include a demand for the actual text copy — I don't even know if it's possible to get that — the text messages back and forth between individuals?

[ Page 2094 ]

Hon. S. Anton: If the question, which I think it is, is asking, "Could this apply to the content of the text messaging records?" the answer is yes.

K. Corrigan: It's interesting that this has been framed…. When you're talking about signals from a wireless device, it seems to be restricted to signals that may indicate the location of the wireless device. The text messaging is pretty wide open, but the wireless device is restricted to just simply the location.

[1520]

Hon. S. Anton:

Section 9(

c) is fairly broad: "telephone and other electronic communication records including, without limitation, (

i) records related to signals from a wireless device that may indicate the location of the wireless device." It's fairly broad as to the information that may possibly be available from a wireless device. If it's helpful to finding the missing person, it could then be used.

K. Corrigan: Is the minister saying that if there are signals from a wireless device, other information that doesn't fit within that definition — i.e., finding the location of the wireless device — that it would be accessible because of the way the first part of the sentence is read?

Hon. S. Anton: I'd like to ask the member opposite to give an example of what she is asking.

K. Corrigan: What I'm asking is…. I don't know whether there's other information, other than location, that would be useful information to access from a wireless device. I'm wondering if…. I don't have an example. I don't know whether there's other information.

In terms of interpreting that section, I'm trying to find out whether the beginning, where it says "telephone and other electronic communication records including…" is wide enough that it means if there's something else that's useful from a wireless device, other than finding the location, that that would be accessible. Or are we limited to just information from a wireless device that would indicate the location of the wireless device?

Hon. S. Anton: No matter what answer we give now, the answer might be different a year from now because these technologies evolve, and the intent in 9(

c) is that it be relatively broad. But again, these are under the order of a justice. If there is additional technology in the records that is helpful, or if the records relate to additional technology and the device — I should put it around that way — then that could be found to be relevant, and the order for disclosure of that information could be made.

K. Corrigan: Subsections (

d) and (

e) allow access to Internet browsing history records and global positioning system tracking records. Similarly to what we talked about earlier in terms of trying to find the limits in terms of a fishing expedition, would it be possible, do you think, for an order to basically be allowed or given that the police simply go through the whole Internet browsing history, whether or not they have any idea whether the individual who is missing has had any kind of communication that would indicate where they are?

[1525]

Similarly, with global positioning system tracking records, would that be something that could be ordered access to whether or not there was any indication that global positioning system tracking records would have any information that would be helpful to find the missing person?

Hon. S. Anton: The Internet browsing and all of the other records in

section 9 are subject to the limitations put upon them by the justice.

K. Corrigan: Well, I know we've gone over this territory before, but not particularly with respect to getting somebody's Internet browsing history or the tracking of their GPS. I'm trying to establish….

Surely the minister and ministry staff would have thought seriously about what the extent could be of these records. I know absolutely that the minister is correct that a justice or a judge will be making the decision about what can be accessed. But it is the enabling legislation that prescribes any limits that there could be, so I think it's quite relevant.

Yes, the justice is going to be making the decision, but this legislation is written by this minister. The minister surely must have contemplated the extent to which information would be accessible.

It doesn't give me much comfort that what we're told is the judge is going to decide it: we're not sure what we meant or how far we wanted this to go, but the judge is going to decide it. If the minister wants to add anything to that, I would appreciate it.

It's is a pretty wide power, particularly when you consider that we're talking about records of the missing person and about records of a third party. We seem to now be talking about records of other parties, as well, if it's believed that they can lead to the missing person.

Looking at the Internet browsing history of all of those people may be perfectly appropriate, but has the minister given consideration to what limits there should be on that information being accessed?

Hon. S. Anton: We have justices in British Columbia

[ Page 2095 ]

who do this job. They apply their judgment to the materials brought before them by the police department. The police have to have…. I'm looking for the exact phrase: "…the member has reasonable grounds to believe that the record (

a) may assist the police force in locating the missing person."

There's a fairly strict regime there. Justices are experts at applying this. They put the limits on the records that they deem to be appropriate. I have confidence in the system that we have. It's been in place for many years now, and it works well.

K. Corrigan: I have confidence in the judiciary as well. I have a lot of respect for the judiciary. I share the same professional background as the minister.

However, this is going to be interpreted. I guarantee that there will be court decisions in the future on exactly what we're talking about right now. I guarantee that there is going to be discussion and argument.

[1530]

So as much as we can get this tied down now — what is contemplated, what is expected — I think is important to do. If there are future cases — and I'm quite sure there will be — it is possible that judges will be taking a look at the conversation we have today in this Legislature to try to interpret what the intention of the minister was in bringing this legislation forward. I'm just trying to help.

With that, I don't have any more questions about

section

Section 9 approved.

section 10.

K. Corrigan:

Section 10 deals with the third-party record access order and a person at risk. It says: "If a missing person is a person at risk, a member of a police force may apply for and a justice may make an order under

section 7." Then it has some more about being required to give the records and about the order as well.

I'm wondering if the minister could explain why it simply wasn't included as a part of

section 7. In other words, "Subject to subsection (2), if a missing person is a minor or a vulnerable person" or a person at risk…. I'm wondering if the minister can explain why we didn't include

section 10 in with

section 7.

Hon. S. Anton: The person at risk has not been defined. That was the discussion we had around

section 1. "An individual assessed, in accordance with the regulations, to be at risk." It is preferable in the legislation to separate out the pieces dealing with the person at risk. They can be brought into force later on when the definition is fully created.

K. Corrigan: But there is reference to persons at risk in other sections. I'm not sure how the definition of "person at risk…." Essentially, exactly the same thing is happening under

section 10. It's just saying getting "an order under

section 7." I'm not really sure why it needs to be in a separate section, because all we're missing is the definition. But I guess I'll leave it at that.

I will ask another question. Can we go back to what type of person is expected to be covered by this section?

Hon. S. Anton: We dealt with this under

section 1. That definition is not yet made, because we're going to do consultation. It will become a regulation before this

section 10 is implemented.

Section 10 approved.

section 11.

Hon. S. Anton: I move the amendment to

section 11(2) standing in my name in the orders of the day. That is, again, to add the words "to believe" after "reasonable grounds."

[SECTION 11 (2), by adding the text shown as underlined:

(2) A justice may make an order under this

section authorizing members of a police force to enter, by force if necessary, a private dwelling or other premises or land and search for a missing person if the justice is satisfied that there are reasonable grounds to believe that the missing person may be located there.]

Amendment approved.

section 11 as amended.

[1535]

K. Corrigan:

Section 11 in division 3 deals with search orders with respect to a minor or vulnerable person. It says: "If a missing person is a minor or a vulnerable person, a member of a police force may apply for an order authorizing members of the police force to enter, by force if necessary, a private dwelling or other premises or land and search for the missing person if the member has reasonable grounds to believe that the missing person may be located there."

Then subsection (2) says: "A justice may make an order under this

section authorizing members of a police force to enter, by force if necessary, a private dwelling or other premises or land and search for a missing person if the justice is satisfied that there are reasonable grounds that the missing person may be located there."

I read that out because, again, these are fairly wide powers — the ability to go into a private dwelling or other premises and search for somebody. We think it's important that that power be there. We support it. But it is a fairly wide power, the ability to search.

I guess my question is: what is the interface with the Criminal Code of Canada? My assumption is that when

[ Page 2096 ]

somebody is going to search, there are many similar powers under the Criminal Code of Canada. Maybe just a little bit of a backgrounder on that from the minister would be helpful.

Hon. S. Anton: This is a search for a person where there is no criminal offence suspected. Of course, under the Criminal Code, the police do have many powers of search, but this is the power under the civil remedy for police officers to look for a missing person.

K. Corrigan: Well, when you're searching somebody's property — and I appreciate that this is a civil remedy — there are protections under the Charter. Would those Charter rights apply in this case, in this civil remedy? I would assume that they would.

Hon. S. Anton: Perhaps the member could clarify whose Charter rights she's asking about in particular.

K. Corrigan: Well, for example, you're saying a private dwelling. So let's say the private dwelling belonged to somebody…. I don't know who it belongs to. It could be a third party as defined under the act, or it could be just another party, or it could be the home of the individual, the missing person — anything. Do Charter rights to the right to have property rights…? Do they apply in this case?

[1540]

Hon. S. Anton: The Charter applies to the laws of Canada, and the Charter applies to the actions of the police.

K. Corrigan: I guess, then, the Charter would apply in this case because, presumably, it is the police that are entering.

I guess the question for the minister is: has the minister, in framing this bill, considered whether there could be invasions of privacy or that there could be Charter rights that are infringed under this

section or Charter challenges under this section? I know the minister has said that each and every

section of this act was looked at by the legal team.

I asked at the very beginning about whether or not there was concern about Charter challenges and so on. I want to ask specifically: was there consideration to the possibility of Charter challenges of this

section when the bill was being framed?

Hon. S. Anton: I think I just have to go back to the purpose of the

section itself, which is that the justice makes an order for the police officer to enter the premise. The justice has to be satisfied that it's appropriate.

The member has to have reasonable grounds to believe that the missing person is located there. The justice has to accept the terms of the officer and put the appropriate conditions on it. This is an order made by a justice. It's not made on the police officer all by himself. It's under the supervision of the justice.

K. Corrigan: Yes, I appreciate that, and I'm pleased. I think it's a necessity that there has to be an order, and I think it's a good safeguard. But the question was, really, whether the minister had considered the possibility of Charter challenges in framing this bill or whether there was any advice or any parsing of the words in order to make sure that it was appropriate in terms of Charter rights.

[1545]

Hon. S. Anton: In development of the bill, we received legal advice, including constitutional advice.

K. Corrigan: I'm wondering if, under

section 11, there are any powers of the police, if an order was given, in terms of what they could do in terms of entering, even by force, a private dwelling to look for the missing person. Are there more powers given to the police under this than under the Criminal Code, when they are seeking evidence or there's a criminal investigation into a missing person? I'm just trying to get a sense of the balance of the two. Does it go as far or farther than the Criminal Code?

K. Corrigan: Well, I'm sure the justice does, but that's not what I was asking. I was asking if the powers that police have under this

section to enter, by force if necessary, a private dwelling or other premises or land — whether or not the powers that are in the authorizing statute are broader or more extensive than the powers that police have, on the face of it, under the Criminal Code of Canada?

Hon. S. Anton: The answer is no. Both have prior judicial authorizations.

K. Corrigan: Both have prior authorizations. I'm just wondering if the wording in the Criminal Code — I haven't taken a look at it — is similar, then, authorizing police to enter private dwellings, search private dwellings. Is the legislation similar in how it's worded?

The Chair: The committee will be recessing for five minutes — seven.

The committee recessed from 3:48 p.m. to 3:59 p.m.

[R. Chouhan in the chair.]

[ Page 2097 ]

K. Corrigan: Actually, I don't have any more questions on

section 11.

Sections 11 as amended and 12 approved.

section 13.

K. Corrigan:

Section 13 deals with an emergency demand for records.

[1600]

This is if a police officer…. Police officers have to go to a judge, as we know, in order to get access to records related to missing persons, unless they believe that the time required to get an order "may result in (

i) serious bodily harm to or the death of a missing person, or (ii) destruction of the record." In that case, they can make an emergency demand for the records but then must file a written report, filed with the officer in charge.

I have some concerns, and the Office of the Information and Privacy Commissioner also had some concerns. But I'm actually going to sit. I think my colleague has some questions.

G. Heyman: I share the concerns that were expressed, with respect to emergency disclosure demands, by the Privacy Commissioner in a letter to the minister dated February 14.

This goes to some of the answers that were provided by the Justice Minister in response to previous questions. In many cases where we expressed concerns, the minister answered to us that the request had to go to a justice. The justice would look at the demand and make sure it was reasonable, would look at the scope of the demand and make sure it didn't go further than it needed to.

But in the case of an emergency disclosure demand, none of these controls are particularly present. The bill does require that when a member makes an emergency demand for records….

We understand the need for emergency demands. I don't want to in any way question that. There are times when time is of the essence, and if somebody's life is potentially at stake, then things need to move forward quickly. But it is also true that the emergency demand is not subject to the same, or any, level of judicial oversight or controls that would be contained in other sections of the act.

"The bill would require that the member file a written report with the officer in charge as soon as practicable and that the police force report annually on the number of emergency demands that are made by its members." The Privacy Commissioner states: "I believe the ability of the state to compel the production of records about its citizens is a significant intrusion on the privacy of those citizens. It is not an action that should be taken lightly, which is the reason why such action is generally associated with some level of oversight by the judiciary."

Now, I think we all share that view, just as we understand that there will be times when oversight by the judiciary simply would interfere with the very important purposes of the act with respect to the safety and security of someone who's missing.

The Privacy Commissioner has suggested an amendment, an amendment that wouldn't in any way interfere with the speed with which an emergency demand for disclosure could take place but that would provide some greater level of oversight than a simple annual reporting of numbers by police forces.

She suggested that her office be notified after an emergency disclosure demand is made, not as an approval mechanism but just simply to monitor the use of emergency demands — presumably in terms of frequency; in terms of situation, perhaps; in terms of scope; and to evaluate over time "whether they are being undertaken in an effective manner that is proportional to the privacy impacts on the individual whose records are disclosed," in her own words.

I believe that if the Privacy Commissioner had concerns, she would likely raise them first with the Justice Minister. In fact, I'm quite certain about that. It would only be if those concerns were not addressed that she might then actually raise them with members of the Legislature and, through the Legislature, of course to the public.

It seems to me to be a reasonable proposed amendment, one that would give the public some sense of security that somebody was looking at the use of these demands when they're not being made through the judiciary. As she has said, the notification could occur when the member files the written report with the officer in charge. That's already required by

section 13(2). It would simply be, I guess, another copy.

[1605]

It would be a fairly simple amendment. She suggests requiring the officer in charge to forward a copy of the written report to her office. She draws a similarity to that contained in

section 25 of the Freedom of Information and Protection of Privacy Act, and in that case her office is simply advised by the police force that it has issued a notice that a dangerous offender has been released from prison and the reason that the notification is in the public interest.

That seems like a reasonable proposal from the Privacy Commissioner. I would hope that the Minister of Justice is seriously considering such an amendment. It would seem, in my view and those of my colleagues on this side of the House, to be respectful of the concerns and the integrity of the protection of privacy for which the commissioner is responsible.

It does not, in any way that we can see, interfere with the administration of the bill or with the ability of police to make an emergency demand for disclosure and subsequently to protect, if it is still possible to protect, some-

[ Page 2098 ]

body who is missing or simply find them before they do some harm to themselves or they come to some harm.

So I would be interested in hearing from the Justice Minister and request from her whether she has given some consideration to this proposal from the Privacy Commissioner — or some other mechanism, although it's hard to imagine a simpler one than this, that would allow some form of oversight of the use of emergency demands that do not require judicial approval.

The Chair: The member for Burnaby–Deer Lake has circulated an amendment. Is this proposed amendment officially tabled?

K. Corrigan: I'm absolutely happy to move that amendment at any point. If the minister wants to answer the question first, that would be fine, and then I'll move the amendment.

Hon. S. Anton:

Section 18 refers to an annual report made by police forces respecting emergency demands for records made by that police force. The police force must provide that to myself, and I must make that annual report public.

That would be a comprehensive reporting of all of these kinds of orders which are made during the course of a year. It is our belief that that is sufficient in terms of monitoring the application of the Missing Persons Act and the emergency demands for records under the Missing Persons Act.

[1610]

K. Corrigan: I would like to propose an amendment to

section 13 of the act. It's an addition. I'm not going to read the whole section, because it's very long, but the proposal is that after

section 13(2) a clause be added that reads:

[ To amend

Section 13 as follows by adding the text shown as underlined:

(1) A member of a police force may make an emergency demand for records requiring a person to give access to a record set out in

section 15 if the member has reasonable grounds to believe that

(

a) the time required for applying for an order under

section 6 may result in

(

i) serious bodily harm to or the death of a missing person, or

(ii) destruction of the record,

(

b) the record may assist the police force in locating the missing person, and

(

c) the record is in the possession or under the control of the person.

(2) If a member of a police force serves a demand under this

section on a person, the member must, as soon as practicable, file a written report in the prescribed form and manner with the officer in charge that sets out the circumstances in which the demand was made.

(

a) The officer in charge must forward a copy of the written report to the Office of the Information and Privacy Commissioner.

(3) In this section, "officer in charge" means as follows:

(

a) in relation to the provincial police force referred to in paragraph (

a) of the definition of "police force" in

section 1 of this Act, the commissioner as defined in the Police Act or an individual designated by the commissioner;

(

b) in relation to a municipal police department referred to in paragraph (

b) of the definition of "police force" in

section 1 of this Act, the chief constable as defined in the Police Act or an individual designated by the chief constable;

(

c) in relation to a prescribed entity referred to in paragraph (

c) of the definition of "police force" in

section 1 of this Act, a prescribed senior official or an individual designated by the senior official.]

I move that amendment. I believe you have copies of that.

On the amendment.

The Chair: Any discussion on the amendment?

G. Heyman: I rise in support of the amendment. I note the answer of the Justice Minister to my previous question, and with respect, I think there is both a quantitative and a qualitative difference in the provisions of

section 18 to what is proposed in an amendment for

section 13.

First of all, a year is a long time. It makes sense when we're dealing with something as fundamental and critically valued by British Columbians as the right to privacy, a value that's enshrined in British Columbia law, in Canadian law, in laws in virtually every democratic country around the globe.

It is a right that is highly, highly prized by individuals to know that there is some oversight that takes place on more than an annual basis about the extent to which that right is being respected in emergency situations — we've already admitted that missing persons are an emergency situation — or whether that right is being infringed upon in an unnecessary or perhaps inappropriate way.

If we accept the argument that a review once a year is sufficient, that doesn't quite square up with the requirement in non-emergency demands for disclosure for judicial oversight and judicial approval.

On a qualitative basis, with the utmost respect to the Justice Minister, it makes more sense that the commissioner, the independent officer of the Legislature who is charged with protecting the privacy of British Columbians and whose office is established to protect and advise on the personal privacy of British Columbians, be in a position to monitor on an ongoing basis, particularly in the early stages of the implementation of a new act like this.

It has the potential…. I mean, it does infringe on the privacy of individuals. The question simply is: when is such an infringement on the privacy of individuals justified, and when is it not?

It would allow the commissioner, on an ongoing basis, to monitor the usage of emergency demands, to communicate to the Justice Minister and, if necessary, to

[ Page 2099 ]

legislators in this House about whether the use is proceeding as envisioned, as appropriate and in a way that is properly balanced with the privacy rights of British Columbians.

With respect to the Justice Minister, I think the amendment proposes what

section 8 does not, and that is that there would be an ongoing monitoring of the use and not simply a cumulative assessment at the end of every year — which allows possible abuses that could be mounting up to be addressed in a, hopefully, collegial way through a discussion with the Justice Minister at an early stage.

It also allows that monitoring to take place by someone who is an independent officer of the Legislature charged with protecting the personal privacy of British Columbians, not by the cabinet minister who was responsible for introducing the bill in the first place.

I understand that the report will be made public. I understand that the Privacy Commissioner would be able to comment on the contents of the report on an annual basis, but frankly, I don't think that is good enough. I don't think that meets the sense of security that British Columbians would like to see applied to disclosure of a whole range of their personal information, particularly with respect to some issues I raised this morning about the scope of a request for disclosure.

[1615]

The answer in the case of an application to a justice is that the justice is empowered to limit the scope of disclosure of, say, texting records or Internet browsing history or cell phone records to the case at hand. In the case of an emergency demand for disclosure, it's not at all apparent to me — or, I suspect, to anyone else — just exactly how that limitation will take place.

To wait a year for assurances that it won't be inappropriate seems to me to be too much. It certainly seems to the Privacy Commissioner to be too much. It does not appear to be sufficient to the Freedom of Information and Privacy Association and the B.C. Civil Liberties Association, all of whom work on a daily basis to protect the human rights, the privacy rights and the rights to information of British Columbians.

I would simply submit, in support of this amendment and in requesting that the Justice Minister take a hard second look at the content of our amendment and how it differs from

section 18 — and to members opposite…. Take the recommendation of the Privacy Commissioner not as a challenge to authority but as a legitimate safeguard of the rights of British Columbians that in no way whatsoever intrudes on the application and implementation of this important power that is given to police to gather private information to further the finding of a missing person who may be at risk.

It does not interfere in any way whatsoever with that primary function of the act and, as such, should be an amendment that the government is willing to entertain.

K. Corrigan: On the amendment, I obviously, having submitted the amendment, will be supporting it.

I wanted to go back to the report of the Missing Women Commission of Inquiry, which the minister has said was the impetus for bringing in the Missing Persons Act. In fact, Commissioner Oppal did recommend that there be

an act, so this is said to be in fulfilment of the act.

One of the statements that the commissioner made in the report was: "I recommend that the provincial government enact missing-persons legislation to grant speedy access to personal information of missing persons without unduly infringing on privacy rights."

"Without unduly infringing on privacy rights." So the commissioner, while supporting the act, was fully aware that there could be a concern about privacy rights and made the specific point that the act should not unduly infringe on privacy rights.

The Privacy Commissioner has recognized the importance of and how sensitive it is that we intrude on the privacy of citizens when she said:

"I believe the ability of the state to compel the production of records about its citizens is a significant intrusion on the privacy of those citizens. It is not an action that should be undertaken lightly, which is the reason why such action is generally associated with some level of oversight by the judiciary. In authorizing police forces to make emergency demand for records, the bill would remove this judicial oversight without providing adequate alternative measures for transparency and accountability."

Then she goes on to say:

"I recommend that my office be notified after emergency disclosure demand is made. This would not be designed as an approval mechanism but would enable my office to monitor the use of emergency demands and evaluate over time whether they are being undertaken in an effective manner that is proportional to the privacy impacts on the individual whose records are disclosed."

Taking the comments of Commissioner Oppal and the Privacy Commissioner together, I think this is a perfectly reasonable addition which would not impose significant workload — simply forwarding a copy of the written report to the Office of the Information and Privacy Commissioner.

[1620]

Just forwarding a copy is all that is required and all that the Privacy Commissioner requested. I'm pleased to have this. Frankly, I don't understand why the minister would not support this, and perhaps the minister is going to support this amendment.

Section 18. I would agree with my colleague.

Section 18 does not provide the same level of oversight as the Information and Privacy Commissioner. It's an annual report. What the commissioner is asking for is individual reports, simply the reports in individual cases as opposed to an after-the-fact annual report, which presumably would not have the level of detail in it as would individual reports forwarded to the Privacy Commissioner.

We've talked repeatedly about the infringement of privacy rights and Charter rights with regard to this act. It is a real increase, a significant increase in the power that police have that can invade the privacy of individuals.

[ Page 2100 ]

We are doing it and supporting it because it is justifiable in the situation where somebody is missing and we want to make sure that lives are saved, people are protected and people are found. We've had some tragedies in this province over the last couple of years. Perhaps if this legislation had been in place we might have had more success in terms of finding some people — maybe, maybe not.

We are certainly supportive of it, but we also want to be very clear and very sure that we're finding the right balance. I think without the suggestion that the Privacy Commissioner made in place, simply to monitor, that we are not finding the right balance. For that reason, I am supporting the amendment.

D. Routley: I'd like to speak briefly to this amendment in support of it. The right to privacy is as essential to a citizen as the right to a fair trial or the right to the presumption of innocence. If this House were to tamper with those essential rights, I think the people of B.C. would expect that there would be considerable and formidable backstops, structure and framework to ensure that that tampering or adjustment to those essential rights would not lead to harm.

This is the issue between the principle that's being pursued and the prescription that's being offered. A priest can promise that sin will be punished; a judge can dictate it. The sinner may believe the priest, but he knows the determination of the judge, and he knows that because of prescribed rules and regulations.

It is important whenever we consider adjustments to such essential rights as the right to a fair trial or the right to the presumption of innocence or the right to free speech or the right to privacy that expediency not be our sole and determining motive. When we make these adjustments in the interests of expediency for the police or for our bureaucracy, we have to ensure that the principles for which those rights stand are protected.

It's important, I think, and it's essential that in supporting a justifiable act that is attempting to answer an extremely serious consideration — the safety of persons of this province — that we feel is justified, a strict framework controlling and backstopping the limits of those intrusions should be established by this government.

I think the least the government could do would be to support an amendment that would merely involve the Privacy Commissioner, should there be such a request made.

[1625]

N. Simons: I just want to add my support to the amendment. I think it's entirely reasonable, and it could safeguard against breaches of privacy. It could also allow for the public to know that their government, our government, takes this issue seriously enough to simply put in a little safeguard that has absolutely no material impact on anything other than perhaps the officer in charge having to forward a form.

If the amendment is denied — a lot of times we see that happen in this House — I'm wondering if the minister will be able to explain why this safeguard is unnecessary. In the meantime, I support the amendment, and I believe all my colleagues do as well.

Hon. S. Anton: I will not be supporting the amendment. The act is appropriately balanced. The earlier sections — on looking for the records of the missing person or the third party looking for the orders to go into a home or into a dwelling or into a premise to look for somebody — all of those, of course, are under the order of a justice.

This is an emergency order, so it is slightly different. That is why the police officer must report to the officer in charge. The officer, the police department, is obliged to maintain that information and provide it through to myself every year, and that becomes a matter of public record. I believe that that is sufficient safeguard in terms of determining the use of this act. I would note, as well, that it is consistent with Alberta and Manitoba. Saskatchewan and Nova Scotia, as a matter of fact, do not have this particular emergency demand.

I would also observe that

section 18, the annual report section, requires that the annual report "must include the following information: (

a) the number of missing-person investigations…; (

b) the total number of persons…served with a demand; (

c) any prescribed information." Again, part (

c) there will be the subject of consultation. In particular, it will be a subject of consultation with the Information and Privacy Commissioner.

It is my position that there is sufficient safeguard in this

section and that the amendment is unnecessary.

N. Simons: What the minister just said is that she disagrees with the Information and Privacy Commissioner?

G. Heyman: I appreciate the minister essentially repeating the same answer that she gave earlier to my question, but I did understand her answer the first time, and I would submit that we're in a fairly significant disagreement here.

The minister believes that the oversight of the officer in charge of an annual report is a proper substitute for the very serious concerns that were raised by the Privacy Commissioner, an independent officer of the Legislature who

[ Page 2101 ]

specializes in protecting one of the most fundamental rights of British Columbians.

Even if there was no resolving that disagreement between myself, my colleagues and the Justice Minister and the Justice Minister's staff, what the Justice Minister has failed to answer in any meaningful way is: what possible harm could come to the administration of the purposes of this bill by accepting a recommendation for amendment by an independent officer of the Legislature who is thoughtful, well regarded nationally and an expert in the protection of privacy? What possible damage to the ability of the police to find and protect missing persons would be done by accepting this amendment? She has not spoken to that at all.

It seems to me that in the interests of British Columbians, in the interests of assuring British Columbians that this government has the highest regard for the sanctity of their personal, private information and will only allow it to be breached in emergent situations, this government and this minister would want to take the extra step. The extra step in this case is heeding the advice of an expert, independent officer of the Legislature.

[1630]

I understand why the minister and the government don't want to accept an amendment put forward by the opposition, although I do consider it a sign of an unreasonably stubborn attitude to what should be collegial discussions in this House about making legislation the best it can possibly be.

But I simply do not understand why that stubbornness would extend to a suggestion from a highly regarded independent officer of the Legislature whose job it is to protect — before the fact, as often as possible and to the greatest extent possible — the sanctity of people's private information. It's a sanctity highly valued by British Columbians, a sanctity that's considered a human right and should only be breached in the most urgent of situations.

[D. Horne in the chair.]

To allow an independent officer some level of after-the-fact oversight of the application of this bill seems to me to be entirely appropriate. What is inappropriate is the inability of this Justice Minister to separate herself from the bill that she has taken responsibility for and allow it to be improved or, at the very least, allow it to be seen by British Columbians to be a bill that includes every possible safeguard of their private information.

For that reason, I will be supporting the amendment, and for that reason, I and my colleagues will be voting for it.

The Chair: Seeing no further speakers to the amendment, I'll put the question. The question is on the amendment proposed by the member for Burnaby–Deer Lake.

[1635]

Amendment negatived on the following division:

YEAS — 35

Corrigan

Simpson

James

Horgan

Dix

Farnworth

Kwan

Ralston

Popham

Fleming

Conroy

Austin

Hammell

Donaldson

Chandra Herbert

Macdonald

Karagianis

Eby

Mungall

Bains

Elmore

Heyman

Darcy

Krog

Robinson

Trevena

B. Routley

D. Routley

Simons

Fraser

Weaver

Chouhan

Rice

Shin

Holman

NAYS — 45

Sturdy

Bing

Hogg

McRae

Stone

Fassbender

Oakes

Thomson

Virk

Rustad

Wilkinson

Yamamoto

Sultan

Hamilton

Reimer

Ashton

Morris

Hunt

Sullivan

Cadieux

Lake

Polak

de Jong

Coleman

Anton

Bond

Bennett

Letnick

Barnett

Yap

Thornthwaite

Dalton

Plecas

Lee

Kyllo

Tegart

Michelle Stilwell

Huntington

Throness

Larson

Foster

Bernier

Martin

Gibson

Moira Stilwell

The Chair: The committee will take a short recess for the return of staff.

The committee recessed from 4:39 p.m. to 4:42 p.m.

[D. Horne in the chair.]

The Chair: We're currently dealing with

section 13.

K. Corrigan: I'm disappointed to see that we did not get support for the amendment to have the officer in charge forward a copy of the written report to the Office of the Information and Privacy Commissioner. However, I do have several other questions on

section 13, which has to do with an emergency demand for records.

I'm wondering if the minister considered other mechanisms in order to get records, other than an emergency demand. One of the suggestions has been telewarrants and so on. Were those types of alternative remedies considered rather than an emergency demand for records?

The Chair: Could the member repeat the question?

K. Corrigan: Yes. The question was: did the minister, in framing this act, consider other mechanisms, alternative mechanisms, to the emergency demand for records, which is a fairly significant widening of police powers

[ Page 2102 ]

and without, of course, judicial oversight? An example would be the alternative of using telewarrants instead of an emergency demand for records.

[1645]

Hon. S. Anton: The point here, of course, is that the demand for records is made in this case, where, if there's time taken, it may result in serious bodily harm or destruction of the record. The time taken to obtain an order might be too long.

As to a telewarrant, most of the orders under this act could be obtained by telephone. That's simply one of the ways that police officers, at the moment, can obtain an order, particularly in more urgent circumstances. The fact that it's a telewarrant doesn't really take us anywhere. We just have to remember the purpose of this section, which is when there is urgency.

D. Eby: I don't understand what this

section adds to the abilities of police officers. Surely, a police officer can approach anybody and ask for records, and the person can hand them over to the police officer. What this does seem to do, though, is it adds an additional obligation on a police officer. If they ask for records in connection with a missing-person investigation — or not even an investigation; they just want to see what is going on — now they've got to file an additional written report.

Can the minister clarify that this isn't simply adding an additional bureaucratic obligation on police officers with respect to a power that they already have and would be recording in their notebooks as part of their regular duties?

Hon. S. Anton: This does add additional authority to police officers in emergency situations, which is the authority to make a demand for records. For example, let's take a telephone record. If you go to Telus right now and say, "I want so-and-so's record," they're not going to give it to you. What this does is give the police the authority to create a demand and take it to Telus and say, "Look, I need so-and-so's records," in which case Telus is probably going to comply. But the demand itself gives them the additional emergency authority that they would not otherwise have.

D. Eby: Is there any indication that the minister has had from Telus, Shaw or any other of the major Internet service providers that they don't already voluntarily provide this information to police officers? It's my understanding the practice of many major Internet service providers is that, on written request from a police officer, they will provide these records, and if they have privacy concerns, they'll ask them to go get a warrant.

But that

section already exists. The police officers can go and get a warrant. I just don't…. Under 13, a simple request or a written request….

[1650]

What does

section 13 add for Telus or Shaw in terms of any kind of assurance that somehow they're protected or provided some additional protection, as the minister suggests? This seems to be giving the ability to a police officer, rather than protecting an Internet service provider or a telephone company or whatever.

Hon. S. Anton: I used a phone company as an example, but of course, there may be a whole variety of persons and entities holding records that police may believe to be valuable to them in emergency situations. I just have to emphasize that this is an emergency situation contemplated by this section, so there is a higher threshold.

The demand is made by the police officer. That demand gives the officer authority over and above the voluntary exchange of information which may possibly happen between an officer and an entity. It gives the police officer authority to say: "You need to give me this information." That is a different authority, and that is the authority granted in this emergency situation.

K. Corrigan: Subsection (2) says: "If a member of a police force serves a demand under this

section on a person, the member must, as soon as practicable, file a written report in the prescribed form and manner with the officer in charge that sets out the circumstances in which the demand was made." When we're talking about the prescribed form, I'm assuming that we're talking about prescribed under regulation, as approved by cabinet. Is it cabinet that has…? Is it regulatory that has the power, or is this prescribed by the officer in charge?

[1655]

Hon. S. Anton: There are two sets of regulations applicable here. One is the regulation in

section 13(2), and yes, these are made by cabinet, although, as I said earlier, this one would be in consultation with the Privacy Commissioner.

Section 13(2) is the report that has to go to the officer in charge.

Then the second regulation which is applicable is

section 25(2)(c), the regulation "respecting the information required to be included in an emergency demand for records and establishing other requirements for the demand." Again, that regulation would be subject to consultation.

K. Corrigan: I'm pleased that the minister or minister's designate is going to be talking to the Information and Privacy Commissioner. I hope that the Information and Privacy Commissioner is going to express a concern or a suggestion, which I would also express, that the report should make it very clear about the nature of the emergency and why it was an emergency and establish that it truly was an emergency.

I'm assuming that…. Well, perhaps not, because the

[ Page 2103 ]

Privacy Commissioner may not have those same concerns. It's not necessarily a privacy issue.

I would suggest that it's important there should be a description of the circumstances. I know we're going to talk about

section 18 later. But I think it is very important in the case of an emergency demand which does not have judicial oversight that we have a clear record of the conditions under which it was determined that this was, in fact, an emergency necessitating that the officer not go to a judge or justice in order to get an order.

I'll ask another question, because the minister may not want to respond to that.

The Chair: Proceed, Member.

K. Corrigan: Then the officer in charge, of course, would be the commissioner. That would be with regard to the RCMP, I take it. Or somebody designated by the commissioner or municipal police force would be the chief constable. Then a prescribed entity would be a prescribed senior official. I think it's pretty clear. I actually don't think I have any more questions about this section.

Section 13 approved.

section 14.

K. Corrigan:

Section 14 provides that a person who's served with an emergency demand for records must, within the time specified in the demand, give access to the records specified in the demand and, if the person is unable to locate a record specified in the demand, provide members of the police force with a description of the efforts made by the person to locate that record.

We talked about that second part, (b), in an earlier section, when it wasn't an emergency demand. I actually don't think I have any questions for

section

Section 14 approved.

section 15.

K. Corrigan:

Section 15 lists the types of records in respect of a missing person that can be accessed in an emergency demand for records. They are similar to the list of records that were discussed in

section 9, when it's not an emergency demand — all of those things: Internet browsing history, contact information, GPS, wireless records, videos and so on.

I don't need to go over that ground again in terms of the types of records that there are. But what is different there is that the records related to employment and health and financial information are more restricted. I'm wondering if the minister could explain why it is that these records are more restricted.

[1700]

Hon. S. Anton: The records described in (b), (

c) and (d). It's similar to the other parts in

section 9 but more restrictive. The reason is because there is no judicial oversight in the emergency demands. This is a demand generated by the officer under the supervision of his officer in charge.

K. Corrigan: Subsection (

b) says that there can be an emergency demand for "records containing employment information to the extent that the records may indicate when the missing person was last seen or heard from and when, where and how the missing person is paid" — as opposed to

section 9, where it says "records containing employment information."

I'm wondering if the minister could explain what types of records there would be under

section 9 that would not be covered by subsection (

b) with regard to employment. In other words, aren't those the only types of records to do with employment that would be accessed, whether or not it was an emergency demand for records? It seems to me that the purpose is to find the person, so why would you not have the restriction under

section 9 that you also have under

section 13?

Hon. S. Anton: The difference is that in

section 15, again, it's the immediacy of the record which is important.

Section 9 would allow for a longer-term search of somebody who had been missing for some time, but

section 15 is the person who's missing right this minute and needs to be found right this minute. That's why there's an emergency demand, but that's why the demand is more restricted. You just need the records that will tell you today, yesterday or very recently where that person is — in the case of the emergency.

K. Corrigan: The minister has said that

section 9 deals with people who have been missing for a longer period of time. Is that what the minister just said?

Hon. S. Anton: I'm just contrasting a situation under

section 9…. A person may have been missing for a day, or the person may have been missing for years. What

section 9 does is give the broader authority to look at records over a much more extended period of time,

whereas

section 15 is looking at the emergency, finding a person in an emergency if there's an urgency in the whole situation, which is why it is more constrained what those records can be, under

section 15.

K. Corrigan: Well,

section 13 describes why something is an emergency. It's either "(

i) serious bodily harm to or the death of a missing person, or (ii) destruction of the record." That wouldn't be an emergency in terms of just a destruction of the record. That could be somebody who has been missing over a long period of time or a short period of time, but the destruction of the rec-

[ Page 2104 ]

ord would be the issue, not whether or not there's serious bodily harm. I'm not going to continue on with that, but it's an interesting contrast that the minister has indicated.

[1705]

Then "any prescribed records." It's an interesting juxtaposition, in that the act has some very specific limits in (b), (

c) and (d), but then (

e) gives cabinet the ability to widen it again without limit. In fact, it could prescribe anything. I'm wondering why it is that we have a power in cabinet that may open the records that are accessible up significantly again, and it's going to be decided in cabinet behind closed doors and not open to debate.

Hon. S. Anton: I just remind the member opposite that the prescribed record becomes public. The regulation becomes public, and this

section 15(

e) has the same purpose that it had in

section 9, which is to let the act be flexible enough should there be emerging technologies which need to be included in this section.

Let me add "for example" if I didn't add that — for example, the emerging technologies. There may be other things that fall into that category — I don't want to narrow it — but the emergency technologies is the one that springs to mind most quickly.

Section 15 approved.

section 16.

Hon. S. Anton: I move the amendment to

section 16(2) standing in my name on the orders of the day, and again, adding reasonable grounds "to believe," etc.

SECTION 16 (2), by adding the text shown as underlined:

(2) A justice may make an order under this

section if the justice is satisfied that there are reasonable grounds to believe that the record specified in the demand

(

a) may assist the police force in locating the missing person, and

(

b) is in the possession or under the control of the person.]

Amendment approved.

section 16 as amended.

K. Corrigan:

Section 16 deals with the situation where an emergency demand has been made for records and the person who has been served with that emergency demand fails to comply with the demand, in which case a member of the police force may apply for an order requiring the person to comply with that demand.

First question. Does it have to be the same person applying for the order as originally made the demand?

Hon. S. Anton: The act as written does not limit it to the member who made the original demand.

K. Corrigan: A justice may make an order under this

section if the justice is satisfied that there are reasonable grounds that the record specified in the demand may assist the police force in locating the missing person and is in possession or under the control of the person.

If there was a situation where there may be serious bodily harm to or the death of a missing person, what other remedies does one have? There are emergency powers anyway, so if the requirements of

section 13 were met — in other words, that you were really worried somebody might die — surely there must be an ability to proceed without bothering to get the records via an order.

[1710]

If you think somebody is going to die, then are there other avenues that police can take, perhaps under their criminal powers or their general emergency powers, that would fill the gap if a person refuses to provide those records?

Hon. S. Anton: The investigating officer can either ask and be granted, can make an emergency demand and be granted, or if they are actually in a criminal investigation, of course they can use the powers of the criminal law.

What this does is give the civil powers to get those records, which powers are not available elsewhere. Is there an ability to proceed without an order? Not if the entity is refusing to give them to you and you are in a civil investigation.

D. Eby: Does this

section limit the ability of prosecutors to use the provincial Offence Act to penalize someone who fails to comply with an emergency demand? It seems to me that

section 16 sets out the consequence for failing to comply. It doesn't mention the Offence Act.

The consequence for failing to comply is that they're going to ask you again, this time through a judge. I wonder if that is the intent or whether the minister sees that as the consequence — that prosecutors couldn't go back and say: "Look, you should have given us the record. Now we're going to punish you for failing to do so under the provincial Offence Act."

If I were to put it in a few words, does this

section limit the ability of the province to use the Offence Act for failing to comply with an emergency demand?

Hon. S. Anton: The offence

section is

section 24. That lays out the offences for the different failures.

K. Corrigan: I wanted to ask about…. If a person goes back to a justice to get an order under

section 16 because there's been a failure to comply with the emergency demand for records, is the application then restricted to those more restricted records that are set out in

section 15? In other words, can you go back to the judge, then, and ask for a more expanded set of records than what you originally asked for under

section 15?

[ Page 2105 ]

[1715]

Hon. S. Anton:

Section 16. The order that you're getting is an order requiring the person to comply with your emergency demand. You could conceivably, if the circumstances were appropriate, turn back instead to sections 6 and 7 and apply for an order under those sections. But generally, you're in an emergency situation here, and you would likely follow through with the procedure set out in

section 16.

Sections 16 as amended and 17 approved.

section 18.

K. Corrigan:

Section 18 deals with the annual report respecting emergency demands for records. This was the

section that when we were discussing

section 13 and submitting our amendment would have required that the officer in charge, in an emergency demand, forward a copy of the report to the Information and Privacy Commissioner.

This is the

section that the minister pointed to as saying "not necessary" to comply with the amendment, to fulfil the request of the Information and Privacy Commissioner, because there will be an annual report regarding emergency demands.

But that report is to include the following: "(

a) the number of missing person investigations in which a demand was made; (

b) the total number of persons who were served with a demand; (

c) any prescribed information."

Maybe the minister can explain how the minister believes that an annual report which is prepared, presumably, at the end or even into the following year, which is then sent to the minister in some amount of time — unspecified at this point — satisfies the concerns that the Information and Privacy Commissioner had about

section 13.

Hon. S. Anton: Two things. First of all, the form itself will contain any prescribed information. As I said earlier, we have committed to consulting with the Information and Privacy Commissioner on the nature of that prescribed information.

Secondly, the goal of the Information and Privacy Commissioner is to analyze the use of these emergency demands, over time. It is my belief that this reporting requirement, as set out in

section 18, will allow that analysis.

[1720]

D. Eby: Why did the minister not include the type of record that was accessed in this report — for example, health records, cell phone records, Internet browser history, e-mails and so on — as part of the listed information that must be disclosed?

Hon. S. Anton: That could indeed be part of the prescribed information in the form. That's what we will be working on with the Information and Privacy Commissioner to determine that kind of information.

D. Eby: I note that the minister will be setting out in regulation a requirement for the police to report within a certain amount of time set out by the minister, but she doesn't provide the same obligation on herself. I wonder why the minister hasn't set out a specific requirement that she must release the report — within 30 days, for example, of receiving it — and why it's an open-ended obligation to make reports public.

I can speak from experience. I waited for long, long periods of time for this government many times to release documents that are supposed to be made public. Even a requirement of reasonableness in this

section would address the concern. Why has the minister not put any obligations on herself, in terms of timing, when this report must be made public?

Hon. S. Anton: We get many reports into my office and other offices in government that are public reports, and they are made public. This one will be made public.

D. Eby: I trust that if this bill passes into law and there's an obligation on the minister to make the report public, she will, as the Attorney General, follow the law. That wasn't the question. The question was: why did the minister not include a time limit for her office to disclose this report? It seems that timeliness is one of the key elements of public disclosure. Why there's no element in the act that requires timely disclosure was the question.

Hon. S. Anton: It's an annual report. It will be made public on an annual basis.

K. Corrigan: I agree with the member for Vancouver–Point Grey that it would be important to understand in that report, to have included in that report, the types of records that were accessed. I also think it would be important to have in that report a short explanation about why it was an emergency situation, to satisfy the minister and the public of that.

I'm assuming from the way this

section is worded that whatever that report looks like, whatever is prescribed to be in that report, which is going to be provided to the minister, that report will, unabridged, then be the report that's released to the public. Is that correct?

[1725]

Hon. S. Anton: It will include, as I've noted, the prescribed information, so we will be working on that with the Privacy Commissioner and others who are inter-

[ Page 2106 ]

ested. That information must be able to be made public. Obviously, we can't put things in a public report which is confidential information.

K. Corrigan: In reading the way this

section is worded, it sounds like the report would be the thing that is published annually. That's all I'm trying to establish — that the report and however the minister prescribes it to be, whatever information needs to be in there…. Presumably that information wouldn't be prescribed anyways, to have individual names and so on. I just want to be clear that the report that is provided by the police force is the report, without edit — unless, of course, there was privacy information — that is going to be made public.

Hon. S. Anton: That is the requirement of the section.

Section 18 approved.

section 19.

K. Corrigan: I'm assuming that this

section — which says it doesn't "restrict any authority established at common law or under any federal or other provincial enactment that a police force has to obtain, collect, compile, use, disclose or dispose of any information or records" — would refer to things like the Criminal Code of Canada?

Hon. S. Anton: This

section does not restrict the powers under the Criminal Code — if that was the question — but again, this is the civil remedy, not the criminal remedy.

K. Corrigan: I was just trying to think of an example of another law where police obtain, collect, compile, use, disclose or dispose of information. I appreciate that this is a separate remedy, but I think we've talked a lot about the blurring of the lines and where there may be a crossover, so I was just using it as an example. I appreciate that it's different, that it's not supposed to be in tandem, but that's fine. I just was trying to get an idea.

Section 19 approved.

section 20.

K. Corrigan:

Section 20 says: "A police force may use information in a record accessed under this Act only for the purpose of locating a missing person or a use consistent with that purpose." I'm wondering if the minister could explain why there is a widening of the purpose beyond just looking for the person. What does it mean when you say "a use consistent with that purpose"?

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[R. Chouhan in the chair.]

Hon. S. Anton: A use consistent with that purpose would be data analysis, would be providing the information to a missing-persons unit for their analysis. It would be that kind of use, which might have a slightly broader purpose than the immediate locating of the missing person but might come to help find that missing person or find other missing persons.

K. Corrigan: The Privacy Commissioner, in discussing a similar phrase, "or a use consistent with that purpose," when it is used in

section 21(2), says the bill "also authorizes the disclosure of information for a purpose that is consistent with the purpose of locating a missing person. This significantly broadens the authority for disclosure of information collected under the Missing Persons Act. I do not believe personal information disclosed under this proposed legislation should be used for any other purpose."

My understanding of the reason why the Privacy Commissioner has had concerns about

section 21(2) but didn't express concerns about

section 20 is because they have oversight over

section 20,

whereas in sections 21(2) that oversight has been explicitly removed. However, it does not change the fact that there is a broadening of powers, and for me, the same concern exists. For that reason, I will, in a minute, submit an amendment.

We also have other concerns. This

section also has raised the concerns, significantly, of the B.C. Civil Liberties Association. It says: "For certainty, this

section does not prevent information in a record accessed under this Act from being disclosed for the purpose of a related criminal investigation."

The concern that has been related to me by various parties, including the B.C. Civil Liberties Association, is that in fact, the information that is accessed could end up being used to charge the missing person themselves. Now, the minister may not believe that that's the correct

interpretation of the act, but a related criminal investigation could end up…. If there's information that is disclosed through the records that are accessed that provide information of criminal activities, some crime by the missing person, it possibly could be used.

Will the minister tell me whether it is possible, under the

section as it is presently written, that if there is evidence of criminal activity by the missing person…? Could this section, then — information that's gained through this use of the act — be used by the police to charge somebody, including the missing person, with a crime?

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Hon. S. Anton: The important word here is the word "related" — "related criminal investigation." As we have discussed a number of times, the search for the missing person could possibly turn into a kidnapping, and that might well be a related criminal investigation. At the end

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of the day, it's going to be up to the court in its determination of the admissibility of the evidence whether or not it is a related criminal investigation, but that's an example of something that might be.

D. Eby: This section, 20(2)…. The minister says that that may be a related criminal investigation or it may not — an investigation of the missing person, himself or herself. Surely, the minister doesn't intend that this act is used as an investigative tool for police to do criminal investigations of notionally missing people.

Is there any reason that the minister is not clarifying the meaning or the intended meaning of the word "related"? And I ask that because courts look to Hansard records to understand and help them interpret the meaning of a legislative record. It seems to me that the minister is expressly avoiding providing courts with the kind of guidance that they look to when they review the Hansard record. So when she stands up and says, "Well maybe it could be interpreted that way and maybe not. We're going to leave it to the courts…."

This is the minister's law that her government is proposing. What is the intent of the law here? The intent of the law, I would say, is based on what the minister has said over and over and over. The intent of the law is to provide a civil remedy for police to find missing people when the criminal law tools are not available to them. It is not intended as a criminal investigation tool.

Will the minister go on the record and clarify that "related criminal investigation" surely and certainly can only mean an investigation where there has been criminal activity that caused somebody to go missing? It can be the only intention of the word "related." So why won't she go on the record and simply say that?

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This is the Missing Persons Act, where a related criminal investigation is the investigation of what caused the person to go missing.

Hon. S. Anton: I'm not going to try and narrow this. The related criminal investigation, as I said, will be a matter of evidentiary

interpretation by a court. I gave the example…. For instance, if the missing person has in fact, it turns out, been kidnapped, that would likely be a related criminal investigation. Again, that will be for a court to decide in a criminal proceeding, in this case.

Generally, though…. The member opposite said: "Is this an investigative tool for a criminal investigation?" The answer, of course, is no. The purpose of this act is a civil remedy to find a person who is missing.

D. Eby: Then I have to ask the minister: why bother having the word "related" in there?

Every imaginable piece of information that the police could get that could lead to a criminal investigation will be related because they got it through the missing-persons investigation. It's related to that investigation. "We got the record through the Missing Persons Act. We're able to use it for a criminal investigation. It's related because that's how we got the information."

It seems that the minister is not being frank about the effect of this. It'd be much better to simply remove the word "related" and just say: "Hey, you can use it for a criminal investigation because every piece of information you're going to get is going to be related under this very broad meaning that I refuse to narrow down."

Will the minister clarify that her intent here is in fact to render that word meaningless by not clarifying that "related criminal investigation" means, obviously, related to what caused the person to go missing or related to some sort of injury to the missing person? It's the only possible and reasonable

interpretation, and that the minister won't provide that clarity invites the possibility of significant expansion of the use of this act.

Hon. S. Anton: I've answered the question.

K. Corrigan: I'm going to be proposing an amendment to

section 20. There are two amendments that I'm proposing to

section 20.

[ To amend

section 20 by deleting the text shown as struck out and adding the text shown as underlined:

(1) A police force may use information in a record accessed under this Act only for the purpose of locating a missing person or a use consistent with that purpose .

(2) For certainty, this

section does not prevent information in a record accessed under this Act from being used for the purpose of a related criminal investigation.

(3) A police force may not use information in a record accessed under this Act for the purpose of incriminating the missing person. ]

On the amendment.

K. Corrigan: I think my colleague from Vancouver–Point Grey has spoken quite eloquently on the latter — the concerns that we have. Certainly, various women's organizations have said that they would be concerned that a person might not come forward, might not provide records that could in fact help find a missing person if there was a belief that the missing person themselves could be incriminated.

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It's simply to be clear that the purpose of being able to use information accessed under this act is for related criminal investigation to do with the fact that that person is missing — in other words, an abduction or something like that. That's the amendment, and I'm moving it. I would move that amendment.

Hon. S. Anton: Just quickly, I don't agree with crossing out that phrase, for the reasons I mentioned earlier — the "use consistent with that purpose." There is an analysis

[ Page 2108 ]

use which is consistent with locating a missing person. Secondly, I believe

section 2 is appropriate limitation on the use of information.

K. Corrigan: It's been a long day. We're getting towards the end.

I have said much of what I'm going to say on this. But the minister would not clarify that it was not the intention of this

section to have the person who was missing be somebody who could be charged using records access.

For that reason, just to make it clear, I think it's a friendly amendment. I think it's an amendment that would improve the act. Also, it would make it more likely that people would be more willing to provide information if it's very clear that the only way that information is going to be used in a criminal context is if it's being used to find somebody who has, perhaps, abducted or done something else criminal in relation to the missing-person case.

For that reason, I am going to move my motion, and I've spoken in favour.

The Chair: Seeing no further speakers, I'll put this question on the amendment.

Amendment negatived on division.

Section 20 approved.

section 21.

A. Weaver: I've been listening over the last couple of days to a variety of positions from a variety of members on both sides of the House speaking passionately to this very important issue. This legislation provides a reasonable approach to protecting vulnerable missing persons following on the recommendations from the Missing Women Commission of Inquiry.

However, in my reading of this legislation, one aspect I see missing is the requirement to review the legislation for unintended consequences after implementation. When I reviewed comparable legislation from other jurisdictions — specifically, the Alberta Missing Persons Act — they enshrined the need for a review of the act every five years by a special committee of the Legislature.

I wonder if building a principle such as this into our legislation might address some of the concerns raised here today and yesterday — in particular, the issues of privacy. Can the minister clarify for me whether or not there is a structure in place to review the effects of this legislation and, if not, why this aspect was left out?

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Hon. S. Anton: It is my view that we do not need to legislate the timing of the review. It is better to leave any review until it is appropriate. That could be two years. It could be three years. It could be ten years. I think that decision will be made at the discretion of government at the time. Government uses its judgment on these things all the time — whether or not to review

an act.

A. Weaver: Frankly, given the concerns today, I think it would be in our best interests if we mirrored Alberta's legislation, a