2004 Legislative Session: 5th Session, 37th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, OCTOBER 21, 2004

Afternoon Sitting

Volume 26, Number 14

CONTENTS

Routine Proceedings

Page

Introductions by Members

Statements (Standing Order 25 B )

Surrey Business Excellence awards

D. Hayer

Alberni District Fall Fair

G. Trumper

Small business in B.C.

R. Lee

Oral Questions

Tracking of deaths due to problem gambling

J. MacPhail

Hon. R. Coleman

Retail Merchants Association's knowledge of sales tax reduction

J. Kwan

Hon. G. Collins

Provincial nominee program and recruitment of physicians

K. Stewart

Hon. P. Wong

Legal aid funding

P. Nettleton

Hon. G. Plant

Protection of mountain caribou

B. Suffredine

Hon. B. Barisoff

Committee of the Whole House

Motor Vehicle Amendment Act, 2004 (Bill 66) (continued)

J. MacPhail

Hon. R. Coleman

G. Trumper

Reporting of Bills

Motor Vehicle Amendment Act, 2004 (Bill 66)

Third Reading of Bills

Motor Vehicle Amendment Act, 2004 (Bill 66)

Committee of the Whole House

Northern Development Initiative Trust Act (Bill 59)

J. MacPhail

Hon. K. Falcon

Report and Third Reading of Bills

Northern Development Initiative Trust Act (Bill 59)

Committee of the Whole House

B.C. Rail Benefits (First Nations) Trust Act (Bill 58)

J. MacPhail

Hon. K. Falcon

Report and Third Reading of Bills

B.C. Rail Benefits (First Nations) Trust Act (Bill 58)

Committee of the Whole House

Trespass Amendment Act, 2004 (Bill 72) (continued)

J. Kwan

Hon. G. Plant

Report and Third Reading of Bills

Trespass Amendment Act, 2004 (Bill 72)

Royal Assent to Bills

Community Living Authority Act (Bill 45)

Range Act (Bill 57)

B.C. Rail Benefits (First Nations) Trust Act (Bill 58)

Northern Development Initiative Trust Act (Bill 59)

University Amendment Act, 2004 (Bill 60)

Attorney General Statutes Amendment Act, 2004 (Bill 62)

Charitable Purposes Preservation Act (Bill 63)

Justice Modernization Statutes Amendment Act, 2004 (Bill 64)

Forests Statutes Amendment Act (No. 2), 2004 (Bill 65)

Motor Vehicle Amendment Act, 2004 (Bill 66)

Expropriation Amendment Act, 2004 (Bill 67)

Land Title and Survey Authority Act (Bill 68)

Finance Statutes Amendment Act, 2004 (Bill 69)

Property Transfer Tax Amendment Act, 2004 (Bill 70)

Trespass Amendment Act, 2004 (Bill 72)

Freedom of Information and Protection of Privacy Amendment Act, 2004 (Bill 73)

Miscellaneous Statutes Amendment Act (No. 3), 2004 (Bill 74)

Transportation Statutes Amendment Act, 2004 (Bill 75)

[ Page 11649 ]

THURSDAY, OCTOBER 21, 2004

The House met at 2:04 p.m.

Introductions by Members

K. Stewart: It's my pleasure today to introduce

approximately 30 students from Westview Secondary School — the most prestigious

area of west Maple Ridge is where they come from — and their teacher, Ms. Cyr. I

look forward to visiting with them later. Will the House please make them

welcome.

Hon. S. Brice: In the gallery this afternoon is a lifelong

friend of mine and former Vancouver parks board member, Mary Ann Fowler. She's

here with her sister Gloria McLeod from Victoria and two friends, Donna Battye

and Pauline Ray, also from Vancouver. I would ask the House to make them

welcome.

J. Reid: On behalf of our colleague from North Island, I

would like to introduce in the House today George MacLagan and the 1st Willow

Point Scouts. They are in Victoria working on their chief scout designation.

Incidentally, I'm told that 1st Willow Point Scouts is the member for North

Island's scouting alma mater. Would the House please make them welcome.

[1405]

D. Hayer: I am pleased to rise in the House to introduce

two special guests. Gary Brar, a grade 11 student from Terry Fox Secondary

School, is the son of a good friend of mine, Jim Brar. Joining Gary is his

friend, Ravi Naidu. Would the House make them very welcome.

Mr.

Speaker: Hon. members, two Legislative Assembly

employees are with us in the members' gallery this afternoon: Suzanne Murphy,

multimedia special projects manager, Hansard Services; and Mary Ann Murphy,

reference librarian, Legislative Library. Both employees are retiring this year

after 30 years of service. Please join me in wishing them many happy years ahead

and thanking them for their loyalty and dedication in serving members and staff

of this Legislative Assembly.

Statements

(Standing Order 25

b) SURREY BUSINESS EXCELLENCE AWARDS

D. Hayer: Small Business Week is a wonderful chance to

recognize those businesses, business people, employees and volunteers who are

doing great things in this province. In Surrey the chamber of commerce

celebrates their contribution to our local economy with its business excellence

awards held each year in my riding of Surrey-Tynehead.

Last night the following businesses took top honours in seven

categories: student entrepreneur of the year — Smooth Media; business excellence

with one to ten employees — Redline Pro Manufacturing; business excellence with

11 to 15 employees — Integrated Paving Concepts Inc.; business excellence, over

50 employees — Teal-Jones Group, a very large family-operated forest products

company employing over 1,200 workers in my riding of Surrey-Tynehead and run by

Tom and Dick Jones; new entrepreneur of the year — B.C. Bikes Express; business

person of the year — Yvonne Hogenes, owner-operator of Malary's Fashion Network;

and the not-for-profit of the year — South Fraser Child Development Centre, a

group that has been doing great work with special needs children and that allows

me the honour of chairing their Christmas party sponsored by Rotary Club of

Surrey since 1988.

A special mention of the following finalists, who are also

winners: IYA Enterprise International; Singh Sporting Goods and Gear; Ranger

Wheelchairs/Access Mobility; White Rock Design and Print; Columbia Concrete

Products Ltd.; H.Y. Engineering Ltd., located in my riding; B & B Contracting;

the Leader newspaper; Canadian H2O To Go Inc.; Kickstart Communications

Inc., located in Surrey-Tynehead; Phoenix Drug and Alcohol Recovery and

Education Society; Progressive Inter-Cultural Community Services Society, PICS;

Bruce McAuliffe of the Leader newspaper; Gary Hollick of The Now

newspaper.

I would ask that all members of the House join me in

congratulating all these outstanding businesses, entrepreneurs, their employees

and volunteers, who make our city and this province the best place to live, work

and do business in.

ALBERNI DISTRICT FALL FAIR

G. Trumper: In many parts of British Columbia, fall fairs

and exhibitions are important events that bring communities together. They are a

chance to observe and compete in sporting events, and in food and craft fairs.

Fairs even provide a chance to enjoy the amusement park rides.

I am very proud to report that the fifty-ninth Alberni District

Fall Fair was an outstanding success. The Alberni District Fall Fair association

won five of the 14 awards at the provincial annual meeting of the B.C.

Association of Agricultural Fairs and Exhibitions. The fair won the following

provincial awards: presentation of your fair for communities of 10,000 to

20,000; best idea submitted to Livewire , which was somebody called Brenda

Smith who's a very longtime volunteer; distinguished service went to Butch

Marocchi; the most improved fair; and achievement certificates.

Our local fair brought many activities and events to my community,

including the livestock shows; the logger sports, which takes place on the

Sunday; tractor pulls; home and business shows; the international food fair; the

amusement rides. And very importantly, it highlights the 4-H Club, which has a

very strong membership in the Alberni Valley.

[1410]

The Alberni District Fall Fair would not have the success it has

had over the years without the volun-

[ Page 11650 ]

teers who spend countless hours planning for and working at the fair. They

are already working on next year's fair. To all of those who volunteer their

time to the Alberni District Fall Fair and many of the fall fairs in British

Columbia: I want to thank you.

SMALL BUSINESS IN B.C.

R. Lee: I rise today in the House to once again highlight

the prosperity and growth of British Columbia.

This week is the twenty-fifth anniversary of Small Business Week

in Canada, celebrating and recognizing the vital role that small business plays

in British Columbia and Canada as a whole. It's a vital role indeed, with small

business accounting for 98 percent of all businesses in British Columbia,

employing 970,000 people and representing 58 percent of all private sector jobs.

This government committed to and fulfilled the new-era commitment

to create a more favourable environment for business by cutting red tape and the

regulatory burden by one-third within three years. I'm happy to see that we have

achieved this goal, with more than 173,000 regulatory requirements cut for a net

reduction in regulations of 37 percent.

The figures prove that we have restored the competitive economic

climate in this province. We are going in the right direction — 12,900 new jobs

in September, the highest level of business optimism in Canada since September

2003 and the highest small business growth rate in Canada over the past two

years.

Mr. Speaker, I see the results in my own riding of Burnaby North.

For shops from the traditional area at the Hastings to the Brentwood Town

Centre, for companies from the Still Creek area to Canada Way, for real estate

development everywhere…. Businesses are thriving.

The future for small business in B.C. is even brighter with the

announcement yesterday by the Minister of Finance that effective today, the

provincial sales tax is cut from 7½ percent to 7 percent.

In celebrating Small Business Week, let's also recognize the

Burnaby Board of Trade and the Heights Merchants Association for their

significant contributions in promoting small businesses in Burnaby.

Mr. Speaker: That concludes members' statements.

Oral Questions

TRACKING OF DEATHS

DUE TO PROBLEM GAMBLING

J. MacPhail: According to the Solicitor General's own

report on problem gambling, Internet gambling is a serious risk to youth.

Despite that, the government plans to expand Internet gaming revenues alone by

600 percent in only two years.

Can the Solicitor General tell us what steps he's taking to track

the impact of this massive expansion of Internet gaming and what impact that

expansion will have on young people, particularly on youth suicides?

Hon. R. Coleman: The Lottery Corporation, as we've

discussed earlier this week, is going on line with a suite of products. That

suite of products does not include on-line casinos, will not include on-line

casinos and is never anticipated to include on-line casinos, which is the aspect

that a number of people are concerned about.

The site itself has a number of protections in it for age, etc.,

that I have outlined to the member. I've also offered her the opportunity — or I

will offer her the opportunity, if she wishes — to sit down with the people from

the Lottery Corporation that put this together.

B.C. Lottery Corporation is the responsible organization for the

conduct and management of gaming in the province. They are in that position

because we changed the gaming act in 2002 so that the Lottery Corporation, arm's

length from political influence, would do their job. Within is the fact that

they would do it in a responsible manner in protecting the public.

The site itself has spending limits as well, as the member knows,

and has the ability to make sure that the third-party verification takes place

and, in addition to that, that the players are 19 years of age or older. With

those restrictions and everything else, we're comfortable with what they've

accomplished.

They will, of course, as they do with all their gaming

initiatives, have a program for responsible gaming initiatives, watching this

product line as they do all other product lines.

[1415]

J. MacPhail: My question was a serious question about youth

suicides related to gambling. The minister's own study shows a direct

correlation between Internet gaming and the risk to youth. His own stats show

that he is planning on getting a 600 percent increase in Internet gaming

revenues.

According to the Solicitor General's service plan, it has no

target to track problem gambling for this year. That has disappeared from his

service plan for this year — no tracking of problem gambling. That's despite the

fact that they're increasing Internet gaming by 600 percent. They will now be

selling gambling products directly into a potential 920,000 homes. That's close

to a million new gaming outlets.

Other provinces track the number of deaths related to gambling. In

Alberta, gambling-related deaths account for 10 percent of all suicides. In Nova

Scotia, they account for 6.3 percent of suicides. Can the Solicitor General tell

us how this province plans to track the number of deaths that occur as a result

of problem gambling?

Hon. R. Coleman: We participate in gambling prevalence

studies on a regular basis, as do other corporations across the country involved

in gaming. There was one done in 1993, in '96 and in 2003. The results show that

gambling prevalence in British Columbia has remained the same over that ten-year

period.

Not only do we do prevalence studies, but we're looking at

opportunities to create centres of excellence

[ Page 11651 ]

with regards to how we as a province can do our research in conjunction with

other jurisdictions. We have a 24-hour help line for information and referral

for people who have difficulty with gaming. We've doubled the amount of money we

put into problem gaming.

A total of 31 professionals are contracted in British Columbia,

with programs across the province. Professional clinical counsellors provide

provincewide counselling service at no cost to the client. Counsellors meet with

clients during evenings and weekends as required and will travel to meet the

clients in their own communities. Prevention workers work with health

organizations, schools, first nations communities, seniors and youth groups, and

the gaming industry to provide information on gambling addiction and related

issues.

Awareness materials include posters and brochures translated into

various languages in the province. The corporation itself has a number of

self-exclusion and monitoring programs on top of that, which they also provide

to the people of British Columbia. We in the ministry…

Mr. Speaker: Thank you, Mr. Minister.

Hon. R. Coleman: …have developed partnerships for

responsible gaming across the industry.

Mr. Speaker: Thank you.

J. MacPhail: Perhaps the Solicitor General should read his

own service plan and see that this year, unlike previous years, his government

is not tracking problem gambling — go to his own service plan.

My question was about tracking deaths due to gambling, and the

Solicitor General didn't answer it. The reason why he didn't answer it is

because this government has absolutely no way of tracking these deaths. Unlike

other provinces, the government doesn't consider problem gambling to be a factor

in someone's death.

Last year Patricia Cairns died as a result of her gambling

addiction. There were many horrifying news stories of her death and how it was

related to gambling addiction. No mention of gambling was made in the coroner's

report on her death, because unlike other provinces, in British Columbia there

is nothing to compel the coroner to identify gambling addiction as a cause of

death.

Now, here's a government that has more than doubled the revenues

from gaming and has expanded gaming like never before, and Internet gaming is

going to increase 600 percent in two years. To the Solicitor General: how can

the Solicitor General justify not tracking gambling-related deaths when, by his

own admission, his massive expansion of on-line gaming puts young people at risk

— his own study?

Hon. R. Coleman: The issues in and around problem gambling,

as I've outlined to you, are covered in a number of programs in this province.

They are covered with monitoring; they're covered with self-exclusion programs;

they're covered with setting purchasing limits, etc. The member focuses on

Internet gaming because it's a service to our clients across this province who

actually buy these things already and do this on the Internet.

[1420]

If there are additional programs that we need to enhance as we go

through this, which we review all the time, we will do so.

RETAIL MERCHANTS ASSOCIATION'S

KNOWLEDGE OF SALES TAX REDUCTION

J. Kwan: Earlier today we filed an FOI request to the

Ministry of Finance, asking for information relating to all contacts made

between the office of the Minister of Finance and his ministry with the Retail

Merchants Association. But maybe the Minister of Finance can speed things up.

Can he come back to us later this afternoon and tell us who in his ministry met

with the Retail Merchants Association of B.C. in advance of his tax announcement

yesterday?

Hon. G. Collins: I answered that question yesterday in the

corridors. I'd be glad to send a transcript of my answer. But just to refresh

the member's memory, there was no contact — no mention to anybody outside of the

normal people that are involved in developing tax policy — in advance of that

announcement.

J. Kwan: I believe, I believe.

The Merchants Association had a press release on the subject

sitting on…

Interjections.

Mr. Speaker: Hon. members, the member for Vancouver–Mount

Pleasant has the floor.

J. Kwan: Thank you, Mr. Speaker.

…the media fax machines before the minister had even finished

introducing the legislation. Either they'd been given a heads-up on the story,

or they'd been able to defy the laws of human kinetics. If they did not have an

advance on the story, that's a very serious breach of confidentiality and

potentially a breach of privilege in this House. Remember, this is the

minister's office that leaked confidential information on B.C. Rail. I know the

minister doesn't like to be held accountable in this House, and he is desperate

to adjourn this House after only eight sitting days — five weeks early.

Can the minister tell us what steps he is going to take to

determine how the Retail Merchants Association knew before anyone else that the

government was making a significant change to tax policy?

Hon. G. Collins: They wouldn't have known anything other

than what people in this chamber saw

[ Page 11652 ]

when I stood up to make the announcement. I think they've already said that.

This was not an announcement that was a huge…. It's not like nobody had been

talking about this possibility. In fact, there was lots of speculation….

Interjections.

Mr. Speaker: The Minister of Finance has the floor.

Hon. G. Collins: Thank you, Mr. Speaker.

The possibility of the half-percent rollback has been discussed,

well, for over two years. It had certainly been discussed at least a thousand

times, I think, since the first quarterly report was released in early

September.

Interjections.

Mr. Speaker: Order, please.

Hon. G. Collins: That announcement was made yesterday. They

saw it when you did. One of the things you can tell — that they didn't have

advance notice — was that they actually got the number wrong of the value of the

tax reduction. They prepared their information, I guess, in preparation for an

announcement. They were not advised before anybody else was.

PROVINCIAL NOMINEE PROGRAM

AND RECRUITMENT OF PHYSICIANS

K. Stewart: My question is to the Minister of State for

Immigration and Multicultural Services. As the British Columbia economy

continues its tremendous expansion, there is a demand and increase for skilled

workers and professionals. In my community we have doctors as far away as South

Africa who wish to practise in British Columbia. Like many of us, they know that

our community is the best place on Earth.

To the minister: what measures is this government taking to add

doctors to the list of skilled workers eligible for the provincial nominee

program?

Hon. P. Wong: I thank the member for the question. The

provincial nominee program has been a tremendous success. As the member knows,

this program was developed to help employers address the critical skill

shortages in this province and to attract investors to come to invest in this

province.

[1425]

So far we have successfully nominated close to 700 people under

this program. One of the great successes is to bring in registered nurses to

this province. We are looking forward to expanding this provincial nominee

program. We're working closely with the Ministry of Health Services and the

College of Physicians and Surgeons of B.C. They play a very important

part in

this role. We will continue to work with them to facilitate this issue. I'm very

excited about the possibility of expanding this program and adding the

physicians on this list.

LEGAL AID FUNDING

P. Nettleton: The Attorney General, to date, has failed to

provide any detail with respect to his promise to push for a restoration of

legal aid funding. My question, simply, to the Attorney General at this time is:

is he prepared to provide us with some detail today with respect to his

commitment, his promise, to push for restoration of legal aid funding?

Hon. G. Plant: Well, I answered this question earlier this

week. I am working hard to ensure that we can provide legal services across the

province to those who can least afford them. I am very proud of the work the

Legal Services Society has done within the new statutory framework to expand the

idea of legal aid to include a wide range of services that involve things like

providing information, providing representation in some circumstances and

providing other forms of assistance.

The family court duty council project is a very good initiative.

It's an initiative that I'm working on to see if we can expand and perhaps even

put into place on an ongoing basis. That's one example of one kind of initiative

that I'm working on. If the member, who I know is a former legal aid lawyer

himself, has specific ideas about initiatives that we should work towards

implementing and funding, I would be delighted to hear his ideas.

PROTECTION OF MOUNTAIN CARIBOU

B. Suffredine: A number of my constituents have expressed

concerns about the impact of development on the mountain caribou in our region.

Recently the Forest Practices Board released a report calling for strong

government action to tackle threats to the survival of B.C.'s mountain caribou.

Everyone wants steps taken that will be effective. Can the Minister of Water,

Land and Air Protection tell us what action he intends to take to protect the

mountain caribou?

Interjections.

Mr. Speaker: Order, please. Order, please.

Hon. B. Barisoff: I want to thank the member for expressing

the concerns from the people from Nelson-Creston about the mountain caribou.

Actually, I am excited today to announce that we're putting in $800,000 in new

money and a new provincial cross-ministry coordinator to look after the mountain

caribou and the other endangered species. Again, I want to thank the member for

bringing this to my attention along with the Forest Practices Board.

[End of question period.]

Orders of the Day

Hon. G. Collins: I call Committee of the Whole for

consideration of Bill 66.

[ Page 11653 ]

[1430]

Committee of the Whole House

MOTOR VEHICLE AMENDMENT ACT, 2004

(continued)

The House in Committee of the Whole (Section

B) on Bill 66; J.

Weisbeck in the chair.

The committee met at 2:32 p.m.

section 2 (continued) .

J. MacPhail: Subsections (2) and (5) of

section 2 indicate

that the superintendent may decide to let the person get their licence and drive

as long as they are participating in a course or a program. On what basis would

these sections permit the superintendent to let one driver continue to drive and

another be refused a licence?

Hon. R. Coleman: I guess you could say that's why we have

to have some flexibility for the superintendent. Everybody deals with issues in

and around addictions differently, depending on themselves. Some people need

counselling. Some people actually need addiction services. For the

superintendent it would be based on the opinion of a qualified addiction

counsellor, taking into account a couple things: (

a) what the problem is with

alcohol, and (

b) the likelihood of somebody not recognizing that problem and

driving. It's one of those things where I know that on the administrative side,

as we've done with administrative penalties in the past, the superintendent has

to take things in balance when he's making these decisions.

J. MacPhail: All right. Maybe the minister could provide me

with an example — no names or whatever — of two different circumstances that

would provide two different outcomes.

[1435]

Hon. R. Coleman: I'll try and get this right. Let's use two

examples of people dealing with alcohol. In the first case, somebody commits the

offence of impaired driving, gets charged and is convicted of impaired driving.

They get a suspension under the Criminal Code. Then they are in our system. If

there is a history of other alcohol-related offences on their driving record,

they can be put right into…. They have to go into rehab, into the treatment

program right away because they've been convicted of a Criminal Code offence.

A second example similar to it is when a doctor might report to us

that a person has a heavy alcohol problem and that the likelihood of their

driving puts the public at risk. Then based on the assessment by the

professional counsellor, we can decide to either pull the licence or put them

into rehab. Then the fear of losing the licence changes their behaviour, and we

can put them into some program. Those would be two examples where the discretion

would be different, depending on the information available to the

superintendent.

G. Trumper: I thank the member for Vancouver-Hastings for

giving me the opportunity.

To the minister. This is a general question, because it is

actually not in Bill 66. The question that I ask, and one I certainly support,

is why we haven't done anything about lowering the blood alcohol level to .05.

Hon. R. Coleman: Through our consultation process, we

looked at the blood alcohol level of .05 for a provincial offence. That wasn't

supported by the B.C. Association of Chiefs of Police. It wasn't supported by

the Mothers Against Drunk Driving to have a provincial offence at .05. The

reason for that is they felt that was a move to decriminalization and away from

the Criminal Code offence charges on impaired driving. So that's why we didn't

use .05.

The other side, which is something that groups including MADD

would like to see, is a lowering of the blood alcohol level down to .05 for a

Criminal Code offence in Canada. I've stated publicly that I have no problem

supporting that initiative, with the justice ministers. However, like I said to

the Leader of the Opposition earlier, it hasn't been brought to the table in any

major way for any justice ministers' meeting that I have been at. Frankly, we

haven't had a justice ministers' meeting in some time because of the different

rollover of government. There was supposed to be one, I think, starting next

week. It's been cancelled and may take place in January. It would be an item, in

a general discussion at that meeting, that I would intend to bring up at the

table.

G. Trumper: Thank you, minister, for the answer. I

appreciate the complications around it. I would certainly go on record as in a

previous…. I'd hardly call it a career, but in a previous job I had…. I think

this is something that certainly, nationally, we should be looking at to deal

with the issue of drunk drivers on the road who seem to think that .08 is just

fine and are quite often over that.

J. MacPhail: Mr. Chair, I'm going to move an amendment to

this section, to 25.1(2). Perhaps there is a copy available, if the Table

wouldn't mind.

I am moving an amendment to

section 25.1(2) to delete the

discretion of the superintendent to "require a statement in, endorsement on or

attachment to the person's driver's licence…." My amendment now reads:

[

(2) The superintendent may must require a

statement in, endorsement on or attachment to the person's driver's licence,

adding as a condition of the driver's licence that the person must, in order

to continue to hold the licence, attend or participate in and complete, to the

satisfaction of the superintendent, a course or program referred to in

subsection (1) if it is not, in the superintendent's opinion, contrary to the

public interest to allow the person to hold a driver's licence while attending

or participating in the course or program.]

[ Page 11654 ]

[1440]

On the amendment.

J. MacPhail: Mr. Chair, it is absolutely important that we

send the strongest message possible that when people drive drunk, they are going

to suffer serious consequences — this being one of them. I don't think it is the

area for discretion by anybody to allow any opting-out.

Amendment negatived on division.

J. MacPhail: Perhaps the minister could explain

section

25.1(5).

Hon. R. Coleman: This allows the superintendent to take the

licence, and as a condition of returning the licence, the person has to complete

the program.

J. MacPhail: How does the superintendent express his

opinion? If it is, in the superintendent's opinion, contrary to the public

interest to allow the person to hold a driver's licence while attending, how

does the superintendent express his opinion?

Hon. R. Coleman: The superintendent of motor vehicles

develops and implements all kinds of policies. They're posted on the website.

This policy would also be posted on the website so people would have an

understanding of it. My experience, though, is this, and it's just an opinion. I

think that having a superintendent of motor vehicles as a statutory authority

and giving them the discretion — those who have the information in front of them

and can consult with people like professionals with regard to addiction services

and issues that people may have with regards to being able to be trusted to be

put back on the road and what have you…. It's highly beneficial in a number of

ways.

One, statutory authority means that none of us in this chamber can

phone and tell a statutory authority what to do or not to do on any specific

decision, which actually keeps it at arm's length from influence — which is

very, very important. On the other aspect of it, the office is actually a credit

to the operation of government — and has been for many, many years — with how it

handles these cases and files and tries to find initiatives that can help with

public safety, whether it be the ability to suspend a driver's licence on the

side of a road in the case of a street race or whether it be to develop programs

with regards to impaired driving.

The superintendent, being in a statutory position, has to have

some latitude with regards to the public interest, and I think that is an

important function of the office.

[1445]

J. MacPhail: What's the implementation plan for this? It's

interesting. The minister is talking about these policies that will be in place.

They'll be on the website. What is the effective date and commencement process

for this? What's the plan for proclamation, and what's the implementation plan?

Hon. R. Coleman: It's anticipated that the 24-hour

prohibition and the seizure of vehicle and fines for that will be implemented by

December 31, 2004. Most of the other things will be in place by April…. We're

expecting all of the other things, including the rehab programs, to be in place

no later than April 1, 2005.

The reason for that is that for some of it — especially the

vehicle impoundment and prohibition and the change of fines and that sort of

thing — there have to be some system changes take place at the department of

motor vehicles, which is ICBC. So we have some system changes to get done there

in order that we're in a position to track the programs and track the fines and

that sort of thing.

They're working to those deadlines as being the optimum outside

dates. If they can get it done earlier, they will.

J. MacPhail: I'm going to propose an amendment that the

Clerks have. Perhaps I could ask the Clerks to indulge me and provide a copy to

the minister.

I'm proposing an amendment to

section 25.1(5) of the Motor

Vehicle Act to delete the discretionary aspect of the requirement for the

superintendent.

[

(5) If it is, in the superintendent's opinion, contrary to

the public interest to allow the person to hold a driver's licence while

attending or participating in a course or program referred to in subsection

(1), a person has failed a roadside breath test, the

superintendent may must require that the person attend

and complete, to the satisfaction of the superintendent, a course or program

referred to in subsection (1) (

a) or (

b) before being eligible to apply for a

driver's licence under

section 25.]

On the amendment.

J. MacPhail: I'm deleting the discretion aspect. Subsection

(5) will read now: "…the superintendent must require the person to attend and

complete, to the satisfaction of the superintendent, a course or program

referred to in subsection (1)(

a) or (

b) before being eligible to apply for a

driver's licence under

section 25."

This means that there is a mandatory requirement for treatment

programs for someone who has failed a roadside breath test before having their

licence reinstated. We are not breaking new ground in this amendment, and I urge

everybody to support it.

Amendment negatived on division.

J. MacPhail: On

section 25.1(6). Can the minister please

explain this? It now reads: "

(6) A person who is required to attend or

participate in and complete a program referred to in subsection (1) must pay the

prescribed fees."

Hon. R. Coleman: It's pretty clear. Anybody that is put

into a program has to pay. It's a user-pay system. In the first four years of

it, it will — as it ramps up and

[ Page 11655 ]

takes care of itself — probably be given a budget lift to about $800,000 a

year for the four-year period, with the expectation at the end of four years

that the user-pay system will be covering its own costs. But we're prepared in

the early days, as we put it in place, to make sure that if there are any

shortfalls, they're taken care of.

We will prescribe the fee for the program. Everybody will be

charged the same. Some will get counselling, and some will get rehab — whatever

the case may be. But the prescribed fee will be the responsibility of the person

serving the offence.

[1450]

J. MacPhail: Clearly, the minister has done a workup on the

range of fees and costs, etc. Perhaps he could share with us what they

anticipate the cost of these programs to be.

Hon. R. Coleman: Our projections are that the rehab

programs will cost each individual in the range of $800. For the interlock

program there will be a $125 installation fee, a charge of $95 a month while

it's on the vehicle, a $25 fee to take it out and a $150 administration fee.

J. MacPhail: That sort of anticipates my question. Is the

minister saying that this clause also applies to the interlock device?

Hon. R. Coleman: Yes, it does.

J. MacPhail: What's the experience in other jurisdictions

around the user-pay system? What are the consequences of having a user-pay

system?

Hon. R. Coleman: We're the only jurisdiction in Canada

that's going to full cost recovery for user-pay programs like this for people

who have been convicted of impaired driving. I would suspect, if nothing else,

being that it is going to be a lot more expensive than it is in other

jurisdictions, that we've increased the deterrent with regards to impaired

driving.

J. MacPhail: Why did this government decide to buck the

trend of other jurisdictions? What analysis has been done in terms of the

implications for going to a full cost recovery from users?

Mr. Chair, I want to make clear that the nature of my questions

doesn't mean in any way that I'm taking a side on this issue. I just want to

know what the minister has done to mitigate against negative consequences. I'm

thinking particularly amongst people whose employment will be affected by this.

Hon. R. Coleman: There are a couple of issues there. One,

our consultation supported full user-pay. We happen to feel that the people

should pay for the consequences of their crime, and they shouldn't be subsidized

for the consequences of their crime by the taxpayer.

With regards to the other aspect, as far as people being able to

work, that's not a new challenge with regards to impaired driving. Whether we

have this program or not, when you are prohibited, you can't drive. People who

don't have a driver's licence shouldn't be driving. What we've done with this

act, as you know, is actually made it a bit more punitive if you think you

should be out doing that. It was certainly one of the things identified by every

group during consultation — that driving while prohibited had become something

that was not being pursued by courts and law enforcement because of some of the

understandings around the law and some of the penalties. That's why we've

streamlined that to improve it.

[1455]

J. MacPhail: Why did other jurisdictions decide not to do

this?

Hon. R. Coleman: My understanding is that it's for various

reasons. Some of them started out as cost recovery, and then costs crept up, so

the governments of whichever jurisdictions decided that they would put a cap on

it and have government pay the difference. Some of them tied some of these

things into their health care and health care issues.

We felt, frankly, that if you're going to be an impaired driver in

British Columbia, we shouldn't subsidize your having to improve your behaviour —

that you should have to meet your responsibility as a person who's broken the

law. That's why we've gone to full cost recovery. Given the stresses that

already exist on the health care system, we feel it's better to go out on a

contract basis to provide the counselling and rehab services, so we can make

sure they're there for the people that need it.

J. MacPhail: Will there be any government involvement in

determining the fees?

Hon. R. Coleman: Yes, we will determine the fees by

regulation; we will have that involvement. We will actually set what it is for

every driver and then administer the funds, as I would understand it, to the

contractors.

Sections 2 and 3 approved.

section 4.

J. MacPhail:

Section 4 — yikes. It's a biggie in terms of a

lot of "(iii)'s" there and a lot of references to other clauses. Could we

perhaps just have a clarification of what this

section is? I came to the

conclusion that it was merely to replace references to the former Young

Offenders Act with the Youth Justice Act. But is it more nefarious than that?

Hon. R. Coleman: No, it isn't any more nefarious than that.

The housekeeping amendment updates these

[ Page 11656 ]

sections with reference to the new Youth Justice Act to reflect the date the

act came into force. That's why.

Sections 4 to 6 inclusive approved.

section 7.

J. MacPhail:

Section 7 repeals 89 of the Motor Vehicle Act

and substitutes this clause. It's about deemed suspension.

Section 89(1) says:

"A person's driver's licence and his or her right to apply for or obtain a

driver's licence are deemed to be suspended if the person" — and then it lists a

series of prohibitions — has pled guilty or "as a condition of an order of

judicial interim release under the Criminal Code, may not drive a motor

vehicle."

Does 89(1) cover the automatic suspensions that exist in law, or

is there more to it than that? I'll ask that question first.

Hon. R. Coleman: The suspensions that are in place by the

province under law — those are fine. This deems a driver's licence or the

driver's right to apply for a licence to be suspended when bail conditions or a

pre-sentencing order precludes the operation of a motor vehicle. It authorizes

the court to notify ICBC when these conditions are in effect so that the driving

records can be updated. The amendment will close a loophole that allows a driver

who is subject to bail conditions banning driving to hold a valid driver's

licence.

As it currently is, ICBC is not notified of such conditions and

has no authority to refuse licensing services to drivers under these

circumstances. If we get somebody that's charged with criminal negligence

causing death in the operation of a motor vehicle, for instance, in the past one

of their bail conditions could be that they couldn't drive. There was a loophole

that actually made it so that we couldn't suspend the driver's licence

provincially and take the driver's licence away. There was no notification, and

there was a loophole that didn't connect the dots. That's what this is doing.

G. Hogg: I seek leave to make an introduction.

Leave granted.

Introductions by Members

G. Hogg: We are honoured today to be joined by 27 students,

their parents and teacher Mrs. Reynolds from South Meridian Elementary School.

Their principal, Mr. Carlaw, assures me that they are the best school in all of

Surrey. Would the House please make them welcome.

[1500]

Debate Continued

J. MacPhail: Mr. Chair, my question is about 89(1). But I'm

wondering whether the minister slipped over an answer to a question around

89(2), which is about notification. If he did or didn't, it doesn't matter; I'm

going to ask my question again. I just need clarification.

So 89(2) says this…. Again, we're talking about the clause that

talks about deemed suspension. It says: "A judge, registrar, deputy registrar or

court clerk may notify the Insurance Corporation of British Columbia if a person

(

a) is prohibited from driving a motor vehicle under the Youth Justice Act…(

b) pleads guilty to an offence under

an Act referred to in subsection (1)…or (

c) as

a condition of an order of judicial interim release under the Criminal Code, may

not drive a motor vehicle."

Why is this permissive? Based on what the minister just said,

shouldn't it be mandatory that a judge, registrar, deputy registrar or clerk has

to notify ICBC?

Hon. R. Coleman: The

section does two things. It requires

notification and allows a suspension refusal. The word "may" — the permissive

word in the legislation, as I am advised — is permissive to allow the courts to

share the information to meet the freedom-of-information concerns. We've already

worked out the information exchange with the courts and ICBC for this

arrangement to take place.

J. MacPhail: Mr. Chair, I assume from the minister's

answer, which was a full answer, that this information-sharing is going to take

place.

Hon. R. Coleman: That's correct.

Sections 7 and 8 approved.

section 9.

J. MacPhail: This was a little bit confusing to me. This

amends

section 92, and I compared the former

section 92 with the new one. Is

there a typo here?

Anyway, let me just go through this. This

section appears to

strengthen somewhat the superintendent's ability to prohibit a person from

driving and to cancel a licence if they don't complete required programs. But it

doesn't make it automatic. Why is that? Why not?

[1505]

Hon. R. Coleman: I'll go through it this way. Just so we

understand, if people are suspended for a criminal offence for impaired driving,

this

section doesn't apply to them. They're suspended — period. They're going

through their rehab. This is back to where the circumstances could be different

with regards to somebody that has an administrative suspension. It could have

something to do with a health issue. It could have something to do with their

ability to get to the program or what have you. So this allows the

superintendent to prohibit a driver or cancel a licence for failure to complete

the remedial, ignition lock or driver programs referred to in sections 25.1(2)

and 233.

A housekeeping change has also been made to the

section to correct

a grammatical error. That's my note. I think that's no big deal. Basically, this

is back to the discretion of the superintendent with regards to….

[ Page 11657 ]

Let's say somebody has two 24-hour suspensions and they have four or five

tickets for speeding, maybe one for undue care and attention. The superintendent

is suspending the driver's licence and, in addition to that, says: "You're going

to go for some remedial things." So when they come back off their suspension and

they haven't done that, the superintendent could say: "No. Sorry, not until you

complete this are you getting your driver's licence back." It gives the

discretion to make sure people are going through the programs.

J. MacPhail: Okay. I might just send over what I see is

another typo in here. I'll just send it over. I won't ask questions on it,

because I may not have the updated current act on this section.

This

section will apply to people other than drunk drivers. I

gather that's what the minister is saying, in terms of whether it's automatic or

not.

Hon. R. Coleman: It doesn't apply to drivers who have been

convicted of a Criminal Code offence, because that suspension is already there.

This applies to somebody that may have multiple driving offences, 24-hour

suspensions — those type of things that the superintendent deals with an

administrative suspension on. It allows him to have the discretion to put them

into a remedial program, ignition interlock or the driver training.

The reason for that discretion is because each of these cases is

somewhat different. We wouldn't send somebody to an alcohol remedial program if

their problem was that they couldn't figure out how to stop at stop signs and

properly operate with speed at intersections. We'd want to send them back for

driver training. That's why he has that ability. But at the same time, he needs

the ability to prohibit or cancel a driver's licence for those people that don't

complete it.

J. MacPhail: So this

section refers to programs outlined in

section 233 of the Motor Vehicle Act, and it doesn't refer to programs and

courses set out in

section 2 of this act. Is it because it's not dealing with

impaired drivers? Is that why?

[1510]

Hon. R. Coleman: No, that's not correct. This deals with

both. In subsection (b.1) it deals with the people under

section 2 of the act

and those programs. Also, under subsection (b.2) it deals with other programs

that we may want to put them into.

J. MacPhail: Okay. Just as a point of information, I find

this particular

section very confusing about who's on first, etc., so that's

just gratuitous advice.

Now, it refers to

section 233 of the Motor Vehicle Act, but

further on in this bill,

section 20 repeals the existing

section 233. Where is

the new

section 233? Is it in

section 20?

Interjection.

The Chair: Leader of the Opposition, the answer is yes.

J. MacPhail: Yes. Thank you very much.

Section 9 approved.

section 10.

J. MacPhail:

Section 10 is what the minister and I were

talking about before, about penalties and fines. It's a

section that increases

the fines for first-time offenders and repeat offenders. It is less than other

jurisdictions, I might add. It also eliminates the mandatory combined penalty of

a fine plus a minimum period of jail time for a person who is caught driving

drunk while under a prohibition. The change is there.

I'm happy to see that there's an increase in fines. I certainly

hope that the minister will monitor that very carefully to see whether the

increase is enough, and if it isn't, to increase it more. Why did the minister

eliminate the mandatory — and it was mandatory — combined penalties of fines

plus a minimum period of imprisonment?

Hon. R. Coleman: Thank you to the member for pointing this

out, because I think this is an important thing. On a first offence the courts

can still sentence jail. On the second offence it's mandatory. This is done for

this reason. The mandatory seven days in jail for a first offence of driving

while prohibited is being pulled out of the first offence and leaves jail to the

discretion of the court and increases the minimum fine from $300 to $500. The

reason for that is that only about a third of people that are charged with

prohibited driving get convicted. Legal counsel attributes this conviction rate

for driving while prohibited to the requirement that the courts impose a

mandatory jail sentence on a first offence. The amendment should improve the

conviction rates.

Minimum fines are being increased, and the vehicle impoundment

period is being extended to maintain a serious consequence for the offence.

Given the circumstances at the time of driving while suspended, the courts can

still give the jail time on top of that. Now, the member said one thing. She

said driving suspended while intoxicated — or she said impaired, I think, or

drunk…. That's not the case. This is whether you're sober or whatever.

Driving while prohibited is what this deals with. We don't tie the

driving while prohibited to the blood alcohol, so if somebody was impaired, they

would be charged with impaired driving and driving while prohibited in the same

circumstances, but if they're just driving because they decide they're going to

ignore the law, then this gets us there.

Both legal counsel and law enforcement have told us that they feel

this would increase the conviction rate, increase their ability to enforce and

in actual fact reduce the number of people who think they should drive while

prohibited.

J. MacPhail: I guess I understand why the minister has

decided to lump drunk driving in with everything

[ Page 11658 ]

else in terms of prohibited driving, but it can't deter us from taking a

strong stance against impaired driving. What's happened here is that this

section has weakened what was there before. You know, a fine increase from $300

to $500 isn't a big deterrent, but jail time is.

[1515]

What we're talking about here is someone who has offended before,

who has a prohibition on his or her licence and is caught again. I find it too

much of a giveaway by those who are in charge to somehow let this

decriminalization happen in this area. I think the double whammy is good. It's

not about first offenders in terms of a motor vehicle conviction. These are

people who are already under prohibition, and now all they get is…. In the past,

if they were caught driving impaired and they had a prohibition on their licence,

they had to do jail time and a fine. Now the jail time is gone. I think that's

wrong.

Mr. Chair, I have an amendment to

section 10 that perhaps you

could provide…. If the Table wouldn't mind providing the minister with a copy. I

am proposing an amendment to

section 10 of this amendment act so that

section

95(1)(

c) and (

d) reads….

I'm sorry, Mr. Chair. My amendment should read 95(1)(

c) and (d).

My apologies.

By deleting the text highlighted by strikeout and inserting the

text highlighted by underline so the amendment reads…. Really, Mr. Chair, this

is restoring the double penalty with the increase in the fine as well. It will

now read:

[(

c) on a first conviction, to a fine of not less than $500 and not

more than $2 000 or and to imprisonment for not

less than 7 days and not more than 6 months, or to both,

and

(

d) on a subsequent conviction, regardless of

when the contravention occurred, to a fine of not less than $500 and

not more than $2 000 or and to imprisonment for not

less than 14 days and not more than one year , or to both .]

On the amendment.

J. MacPhail: This amendment restores the status quo, which

says that if you are caught while under prohibition, you do jail time.

[1520]

Amendment negatived on the following division:

YEAS — 2

MacPhail

Kwan

NAYS — 33

Falcon

Coell

Brice

Bell

Santori

Barisoff

van Dongen

Bray

Lee

Plant

de Jong

Abbott

Coleman

Penner

Cobb

Jarvis

Orr

Hogg

Nebbeling

Long

Trumper

Johnston

Krueger

J. Reid

Hayer

Stephens

Bhullar

Halsey-Brandt

K. Stewart

Suffredine

Hawes

Kerr

Nettleton

Section 10 approved.

section 11.

[1525]

J. MacPhail: This

section increases the minimum fines for a

person caught for the first time driving while prohibited or whose licence is

suspended, and increases the minimum fines for a person convicted again. There's

a reference to the former provision of the act and the listed provisions. My

question is: what is the former provision of the act? What are the listed

provisions referred to in this section?

Hon. R. Coleman: In the basically background noise taking

place as people left the chamber after the vote, I'm not so sure I got the whole

question.

What

section 11 does is increase the minimum fine for convictions

of driving while prohibited by court order or operation of law. These fines are

consistent with the fines being increased in this bill for other

driving-while-prohibited offences. If that doesn't answer what the

preamble was

from the member, I apologize. If she wants to rephrase it, then we'll deal with

it.

J. MacPhail: In the

section notes, explanatory notes, it

makes reference to "former provision of the act," and it also refers to "under

the listed provisions." I was just asking for an explanation of what the former

provision is to which that refers and what the listed provision is. What is the

list?

Hon. R. Coleman: My understanding is that that refers to

the provisions that are listed under

section 102 of the act, which is basically

under sections 98, 99 and 100 — court provisions under the Youth Justice Act,

and that sort of thing. It's just to tie the prohibited-by-court-order operation

of the law back to the act, as I understand it.

J. MacPhail: Now, it appears to me that

section 11 appears

to maintain the mandatory combined penalty of both fines plus a minimum period

of imprisonment. Am I correct? If so, why in

section 11 and not

section 10?

Hon. R. Coleman: I am advised by the superintendent and my

staff that that is a drafting error, and they are going to get a provision

drafted to fix that. I think the best would be to stand down

section 11 and

continue, if you don't mind.

[1530]

J. MacPhail: Well, it's with mixed feelings that I stand it

down, having pointed out the inconsistency.

[ Page 11659 ]

The minister is now going to go to the lowest common denominator. It would be

the opportunity to change

section 10. If he'd accepted my amendment, Mr. Chair,

there would be no inconsistency. So it is with mixed feelings that I do that.

[H. Long in the chair.]

Hon. R. Coleman: I understand the mixed feelings of the

member. I do want to point out, though, that if you have a piece of law that

nobody's using and the courts won't use it because they see it as something

that's not useful to them and you can't get Crown to do a recommendation to

proceed…. If you can change it and charge more people, get them off the road,

take their cars away for double the amount of time than you could before and

make them pay for that…. I get the member's concern about the seven days, but at

the same time, if the law isn't working, sometimes you've got to fix it so that

it works.

This is what came through our consultation with law enforcement,

with Crown and with everybody else with regards to this. I get that. I

understand the member's reluctance to stand down the section. We can either wait

for the amendment or proceed with

section 12 and come back to

section 11,

whichever she wishes.

The Chair: We'll stand down

section 11 and go to

section

Section 11 stood down.

Sections 12 and 13 approved.

section 14.

J. MacPhail:

Section 14 increases the period of impoundment. I

want to note that there are other jurisdictions in Canada that have longer

periods of impoundment. I would ask the minister along, with his colleagues

across Canada, whenever they do meet, to monitor what is the most effective

deterring period of impoundment.

Hon. R. Coleman: Certainly, we'll to that. If I have a goal

with regards to suspended and prohibited drivers, it's to find a solution that

says that they don't make the decision to ignore the law and that we're able to

lay charges and have punitive-enough penalties. Most jurisdictions are actually

lower than us with regards to the impoundment for prohibited driving. The

reality is that we thought by doubling, to begin with, on both periods, then we

might get the impact we have…. If we can take that and the fact that we're going

to take your car away for 60 or 90 days, etc., and tie into an education

program, we'll reduce the people that want to take the opportunity to drive

while prohibited.

The whole notion, the whole idea here is to actually improve our

conviction rate on prohibited and suspended drivers, which frankly…. Boy, it's

been a problem for a long time. It was a problem back in the 1970s when I was,

believe it or not, in law enforcement. That's like another lifetime ago. It was

a problem there on the

interpretation. We had difficulty getting convictions

then and getting the penalties enforced, and it has continued to be a problem. I

think that what we need to do is to have those administrative penalties so that

we can move more quickly to focus people's minds to quit the behaviour. I'm sure

as we start to seize vehicles and impound them for 60 days, the word's going to

start to get out that we're dead serious about this.

I will undertake to the member…. Whether or not I am the Solicitor

General, my expectation would be that whoever would follow me in the future in

this job would also undertake the same thing. What I think everybody is

responsible for is to monitor all these things to see how we can make them work

better and improve.

Section 14 approved.

section 15.

[1535]

J. MacPhail:

Section 15, as I interpret it, provides a new

basis for revoking an impoundment. Is that correct? What's the effect of this?

It appears on the face of it to weaken the language on impounding.

Hon. R. Coleman: Not weakened, actually strengthened. This

allows us to apply the seizure or impoundment of the vehicle to automatic

suspensions under Criminal Code offences. This has sort of always been there.

Sometimes what will happen on the roadside is that an officer will

take a driver's licence, check it and find, in the computer they have and based

on their reasonable and probable grounds, that the driver's licence has been

suspended. In actual fact they find out afterwards that data wasn't fully

updated, or whatever the case may be.

Basically, it allows the superintendent to review the impoundment,

to revoke the impoundment, if satisfied the driver's licence or the right to

apply for the driver's licence was not suspended under the sections that would

apply. It's needed to add the deemed suspensions to the appeal grounds for

review of a vehicle impoundment, as the bill extends the ability of police to

impound a vehicle driven by a suspended driver. Basically, it's just a provision

to make sure that the superintendent has the ability to waive the impoundment,

if he's satisfied that the reasons for the impoundment were incorrect.

Sections 15 and 16 approved.

section 17.

J. MacPhail: This

section sets out more specific

regulations regarding programs and courses. It confers discretion for these

provisions to the superintendent. Why did the minister opt to go to an

administrative

[ Page 11660 ]

process with the superintendent instead of a criminal process with a judge

and court?

Hon. R. Coleman: I think that earlier I sort of commented

on the ability to be able to match your programs with what exists in law from

time to time and that we felt we were better off with the regulatory-making

process. This is what's going to allow us to establish where it needs to be

mandatory, where it needs to be discretionary. When we start to talk about

24-hour suspensions and things where people haven't been before the courts, and

we're doing it with point systems and what have you…. There is some discretion

on behalf of the superintendent, because otherwise it would just lead to a

litigious situation.

[1540]

It allows us to be flexible as we adjust this from time to time,

depending on what laws may change federally or what other programs we may want

to add. Basically, it allows the establishment of the remedial and

ignition-interlock programs. We can also delegate the regulation-making

authority for the programs to the superintendent. It allows for operational

details of these programs to be specified in regulation. Frankly, it gives us

the flexibility to make sure that we can adjust them, as we find out what works

and what doesn't, to improve them. That's basically the objective.

Section 17 approved.

section 18.

J. MacPhail:

Section 18 allows screening devices to be

prescribed by regulation and allows tests with them to be used to give 24-hour

driving prohibitions using .05 percent as the benchmark. It also removes the

ability for a medical certificate to reverse the prohibition.

Why are the screening device provisions being left to regulation?

Hon. R. Coleman: I am actually quite familiar, from a

personal perspective, with why we would want to do this. The reason is pretty

straightforward. What it is, really, is that if there's anything that changes,

it's technology.

I can remember the first roadside screening devices that were put

in the field for law enforcement over 30 years ago now — probably about 25

years. They had to have a calibration on them, and they were calibrated on a

daily basis with a standard alcohol solution test to make sure they were

accurate. Today we have approved screening devices that are digitized, and

different makes. There are different products in this field coming into the

market on a regular basis. We just want to be able to prescribe any additional

ones that can be there as a tool for the police.

A significant part of this section, however, is the fact that in

the past if a person at the roadside wanted to challenge a 24-hour suspension,

the roadside tester could not be used as a default to say, "Yes, you are," by

giving him a test on a roadside tester. You had to take him back to the

detachment or the police station to do a full breathalyser on him. This actually

streamlines that portion of the process at the roadside and basically makes it

work better, so that's why.

J. MacPhail: This new .05 percent benchmark — is that new,

or is it in the existing act?

Hon. R. Coleman: The .05 is the same as it was before. This

is just so that we can add new screening devices.

J. MacPhail: I'm sorry. Where is it in the legislation?

Perhaps the minister could show me where it is in the old legislation.

Hon. R. Coleman: It's in

part 4 of the act,

section 215(6).

[1545]

J. MacPhail: Mothers Against Drunk Driving asked the

government to bring in provisions to ensure that anyone who blew .05 percent or

over would receive a 30-day administrative licence suspension. The Solicitor

General opted for this weaker sanction of a 24-hour driving prohibition. I think

this would be the perfect time to listen to that request.

I have an amendment, Mr. Chair. I'm wondering whether you would

mind sharing it with the Solicitor General. There's an extra copy.

[

(2) A peace officer may, at any time or place on a highway or

industrial road if the peace officer has reasonable and probable grounds to

believe that a driver's ability to drive a motor vehicle is affected by

alcohol,

(

a) request the driver to drive the motor

vehicle, under the direction of the peace officer, to the nearest

place off the travelled portion of the highway or industrial road,

(

b) serve the driver with a notice of driving

prohibition , that imposes a 30-day licence

suspension, and

(

c) if the driver is in possession of a driver's

licence, request the driver to surrender that licence]

On the amendment.

J. MacPhail: What I'm suggesting by my amendment is that we

actually seize this opportunity — that instead of just allowing for a 24-hour

roadside suspension that we amend this legislation so that

section 215(2) of the

Motor Vehicle Act read now as follows:

"A peace officer may, at any time or place on a highway

or industrial road if the peace officer has reasonable and probable grounds to

believe that a driver's ability to drive a motor vehicle is affected by

alcohol, (

a) request the driver to drive the motor vehicle, under the

direction of the peace officer, to the nearest place off the travelled portion

of the highway or industrial road, (

b) serve the driver with a notice of

driving prohibition that imposes a 30-day licence suspension, and (

c) if the

driver is in possession of a driver's licence, request the driver to surrender

that licence."

It's an opportunity that we should seize now, Mr. Chair,

to say that if you're caught at .05, you're going to have a 30-day licence

suspension.

Amendment negatived on division.

[ Page 11661 ]

Section 18 approved.

section 19.

J. MacPhail: Just a couple of questions on this. Will there

be any assistance available to a person who has been served who might have

difficulty with a wholly written process?

Hon. R. Coleman: In our intake service now we do assist

people with the written process if they have difficulty with it. When there may

be a language difficulty, we also allow for translators or somebody to come and

translate with the individual. The superintendent's office tries to make sure

people that are all treated fairly and that if they have difficulty with the

input or the information, they attempt to solve that problem for them.

Section 19 approved.

section 20.

J. MacPhail:

Section 20 repeals

section 233 of the Motor

Vehicle Act and replaces it with a more specific section. This more specific

section includes courses, programs and the ignition-interlock program. This was

the

section to which the minister referred me that would apply specifically to

drunk drivers. Again, it's discretionary. If it's in the public interest, the

superintendent may demand these programs.

We've been through this, Mr. Chair, several times, and I can't

emphasize enough how I would have wished this government to put the requirement

for these programs as a mandatory provision in the legislation. It does seem to

me that the government will not only be talking the talk but walking the walk —

that there will be a piece of legislation that's very clear on what happens to

you if you drive drunk, and there will be no discretion.

[1550]

It is on the basis of that, Mr. Chair…. My previous amendment

around this area failed because the government defeated it, but I have an

amendment to

section 20(2), I think it is — right? It's an amendment to

section

20, anyway, amending 233(1) and (2).

[233

(1) In this section, "program" means a remedial program or component

of it or an ignition interlock program specified by the superintendent.

(2) The superintendent must notify the

Insurance Corporation of British Columbia of a person's right

(

a) to have his or her suspended driver's

licence reinstated or to apply for a new driver's licence, as the

case may be, in the following circumstances:

(

i) the person's driver's licence is

suspended and the person's right to apply for or obtain a driver's licence

is suspended under

section 232 (2) and (3) (

a) or (b);

(ii) the person has,

(

A) to the satisfaction of the superintendent, attended or

participated in and completed a program as required by the

superintendent , and

(

B) paid the prescribed fees, or]

On the amendment.

J. MacPhail: This is making it mandatory…. It's just

another opportunity for the government to see its way to make these

rehabilitation programs mandatory.

Amendment negatived on division.

J. MacPhail:

Section 233(3) states that if it's in the

superintendent's opinion that a person should participate in an

ignition-interlock program and the person pays the prescribed fees for the

ignition interlock, then that can be the person's punishment. What happens if

the person can't pay the fees?

Hon. R. Coleman: If they can't pay the fee and they can't

pay the program, they don't get their licence back.

J. MacPhail: In a survey of other jurisdictions with

mandatory rehab programs that do not impose a complete user-pay system, what do

they do in circumstances where people can't pay the fees?

Hon. R. Coleman: My understanding is that in other

jurisdictions where a fee exists, they don't compensate the fee. So if the

person can't pay it, they don't get their driver's licence back.

Section 20 approved.

section 21.

J. MacPhail: Now,

section 21 amends

section 234 of the

original act to increase the minimum fine and eliminate the minimum period of

imprisonment for a person caught driving while suspended for the first time and

increases the fine for a repeat offender. This

section again decriminalizes

driving while suspended if it's your first time and you get caught.

[1555]

The minister has said in previous discussions earlier today that

it's because these sections don't work, apparently, in the court system. I

certainly understand the frustration of the legal system being used as a sword

instead of a shield around circumstances that harm society and that the

aggressive nature of lawyers and the inability of courts to stop aggressive

lawyers in terms of allowing people who have been impaired off the hook is a

problem. But it seems to me that it's a step backwards to say: "Okay, you win.

You win, all of you lawyers" — and the court's acquiescence with those lawyers —

"You win. We're going to go to an administrative procedure that no longer

requires jail time." I'm greatly saddened by this.

I have an amendment again so that we can revisit this. There's an

amendment to

section 21 that I am moving: to amend

section 234 of the Motor

Vehicle Act by deleting the text highlighted by strikeout and inserting the text

highlighted by underline so that the amendment reads:

[(

a) on a first conviction, to a fine of not less than $500 and not

more than $2 000 or and to imprisonment for not more than 6

months, or to both, and

[ Page 11662 ]

(

b) on a subsequent conviction, regardless of

when the

contravention occurred, to a fine of not less than $500 and not more than $2 000

or and to imprisonment for not less than 14 days and not

more than one year, or to both . , and]

Amendment negatived.

Section 21 approved.

section 22.

J. MacPhail: Mr. Chair, I'm moving an amendment to

section

Section 22 is about cross-referencing aspects of legislation to

ensure a full and comprehensive collation of information around vehicle

information. I'm moving this amendment. It's an amendment to

section 22, so that

the amendment reads:

[22. A person who is convicted of

impaired driving in another province or another country will be subject to all

penalties and provisions in this bill.]

On the amendment.

J. MacPhail: We know that a person who is stupid

enough or silly enough to drive drunk doesn't limit his or her activities to

just one jurisdiction. All across Canada and into the United States there are

people who drink and drive. I think it's time that there be a tally. Just the

same way that we share information and penalties around other driving offences,

people who are caught impaired and convicted should have to bear the brunt of

the laws of the land in which they reside. It's on that basis that I move my

amendment.

[1600]

Amendment negatived on the following division:

YEAS — 2

MacPhail

Kwan

NAYS — 29

Falcon

Coell

Brice

Santori

Barisoff

van Dongen

Bray

Lee

Plant

de Jong

Abbott

Coleman

Penner

Cobb

Jarvis

Hogg

Nuraney

Nebbeling

Johnston

Krueger

J. Reid

Hayer

Stephens

Bhullar

Wong

Halsey-Brandt

Suffredine

Kerr

Nettleton

[1605-1615]

Sections 22 to 24 inclusive approved.

Hon. R. Coleman: Mr. Chair, I'm just waiting for

the document, to do the amendment to

section 11, so I would say let's have a

five-minute recess.

The Chair: We will take a five-minute recess. I'll ring the

bells to call you back.

The committee recessed from 4:06 p.m. to 4:15 p.m.

[H. Long in the chair.]

section 11.

Hon. R. Coleman: Mr. Chair, maybe you can guide me on

procedure to bring back

section 11 of the bill.

[SECTION 11, by deleting

section 11 (

a) and substituting the

following:

(

a) by repealing paragraph (

c) and substituting

the

following:

(

c) on a first conviction, to a fine of not less

than

$500 and not more than $2 000 or to imprisonment for not more than 6 months, or

to both, and, and .]

Amendment approved.

Section 11 as amended approved.

Title approved.

Hon. R. Coleman: Mr. Chair, I move that the committee rise

and report the bill complete with amendment.

Motion approved.

The committee rose at 4:15 p.m.

The House resumed; J. Weisbeck in the chair.

Reporting of Bills

Bill 66, Motor Vehicle Amendment Act, 2004, reported complete with

amendment.

Third Reading of Bills

Deputy Speaker: When shall the bill be considered

as reported?

Hon. R. Coleman: By leave, now, Mr. Speaker.

Leave granted.

Bill 66, Motor Vehicle Amendment Act, 2004, read a third

time and passed.

Hon. G. Abbott: I call committee stage debate on

Bill 59.

Committee of the Whole House

NORTHERN DEVELOPMENT INITIATIVE

TRUST ACT

The House in Committee of the Whole (Section

B) on Bill

59; H. Long in the chair.

[ Page 11663 ]

The committee met at 4:18 p.m.

Sections 1 to 4 inclusive approved.

section 5.

J. MacPhail: I'd just like to congratulate the chamber for

that productive time while the minister was absent. I appreciate us working

together to end the twinning of the Port Mann…. I'm just kidding. We're all in

favour of that.

Interjections.

J. MacPhail: Absolutely. That's our position.

section 5, subsection (1) establishes the northern development

initiative trust. Subsection (1) states that the trust is a corporation;

subsection (3) states that the trust is not an agent of government. But nowhere

in the bill does it amend the Freedom of Information and Protection of Privacy

Act to include the Northern Development Initiative Trust Act under the Freedom

of Information and Protection of Privacy Act. Does the minister plan on doing

that?

[1620]

Hon. K. Falcon: No, we won't be doing that, but what you

will notice in later sections of this bill is that built into the provisions for

accountability are requirements that there be an annual report issued by the

trust and that there also be audited financial statements that must be made

widely available, including by electronic means. We think that deals very

suitably with the issues of accountability. Practically speaking too, member,

the majority of the members on this trust are going to be elected municipal

politicians, and clearly, their public will take interest in what they're up to.

That is what the annual report and the audited financial statements will

endeavour to provide.

J. MacPhail: That's unacceptable. The government can't

claim, then, that this is modelled after the Columbia Basin Trust because, of

course, the Columbia Basin Trust is subject to the freedom-of-information and

protection-of-privacy legislation. Clearly, once again, it's $135 million of

taxpayer money that's not subject to any light being shone on it.

The government is completely breaking its promise of being open

and accountable, so I'm going to move an amendment, Mr. Chair. I think I've

tabled it with the Table. There is an amendment to

section 5. If the government

defeats this, stop referring to this as being the same as the Columbia Basin

Trust. It won't be anything like the Columbia Basin Trust if the government

defeats this amendment.

[SECTION 5.1, by adding the following section:

Freedom of

Information and Protection of Privacy

5.1

Schedule 2 of the Freedom of Information

and Protection of

Privacy Act, R.S.B.C. 1996, c. 165, is amended by adding the following:

Public

Body: Northern Development Initiative Trust

Head: Chair:]

Amendment negatived on the following division:

[1625]

YEAS — 3

MacPhail

Kwan

Nettleton

NAYS — 24

Falcon

Coell

Brice

Santori

Barisoff

Bray

Lee

Plant

Abbott

Coleman

Penner

Cobb

Jarvis

Hogg

Nuraney

Nebbeling

Johnston

Hayer

Stephens

Bhullar

Wong

Halsey-Brandt

Suffredine

Kerr

Section 5 approved.

section 6.

J. MacPhail:

Section 6 describes directors of the trust.

Under

section 6(2)(

b) it states that five of the directors are to be appointed

by the Lieutenant-Governor-in-Council. Can the minister outline the criteria the

government will use to appoint these directors?

Hon. K. Falcon: We anticipate that the criteria that we

will be using to appoint those directors will be criteria that will buttress the

strengths that local government leaders bring to the trust. That will include

some business experience, some knowledge of the area. Obviously, our preference

is those people will come from those regions. Also, we intend to ensure that at

least one of those appointments is from a first nation so that we ensure that

first nations also have an opportunity to have a lens into this process.

J. MacPhail: Subsection (6) of

section 6 restricts

appointments of MLAs. Are there any other restrictions?

Hon. K. Falcon: No. It's only MLAs that are restricted.

They're not restricted, as you know, from the regional advisory committees where

we felt it was important that there be a provincial link with the regional

advisory committees as they consider projects that may be of value. But we felt

it was very important not to have MLA representation on the northern development

initiative trust board itself.

Section 6 approved.

section 7.

J. MacPhail: As soon as this act comes into force, this

section appoints five individuals by Lieutenant-

[ Page 11664 ]

Governor-in-Council — by cabinet. Those directors are going to be installed

as soon as the act comes into force. Does the minister have information for the

House about who these individuals will be?

Hon. K. Falcon: Very honestly, no, I don't at this point.

Those appointments will be made through OIC, but we intend to solicit input from

folks, including members of this House, particularly — actually, almost

exclusively — from the north, to submit names that we can consider for those

positions.

Sections 7 to 13 inclusive approved.

section 14.

[1630]

J. MacPhail: This

section is entitled "Government may issue

directions." Subsection (1) states that "the Lieutenant Governor in Council" —

cabinet — "may…issue directions to the company, directing the company to pay to

the government any or all…proceeds."

What's the purpose of this section?

Hon. K. Falcon: That is to direct B.C. Rail to forward the

proceeds of the CN–B.C. Rail investment partnership to the government. That's

what it is referring to.

J. MacPhail: Is there any other intent under that section?

For instance, does this

section permit the government to take any proceeds made

to the trust by the trust?

Hon. K. Falcon: No, it does not.

J. MacPhail: Subsection (2) goes on to say that "despite

section 25 of the British Columbia Railway Act and any other enactment, the

company must pay to the government, out of the proceeds, the money it is

directed to pay under subsection (1)."

Here's what

section 25 said, under the British Columbia Railway

Act: "The money raised by the company by borrowings or on its capital stock must

be applied to the making, equipping and maintaining of the railway and other

purposes of this Act."

I don't understand why that

section is listed as an exemption.

This bill says "despite" that section.

Hon. K. Falcon: The reason we need to do that is because

otherwise B.C. Rail would have to use the money for the purposes outlined there,

which are stated to be "making, equipping and maintaining the railway and other

purposes of this Act." What this does is ensure that there is an allowance made

in recognition of

section 25 that the proceeds can be directed by government to

government.

Sections 14 to 17 inclusive approved.

section 18.

J. MacPhail: Under this

section the regional development

accounts are given nine areas in which investment can be made. They are all

economic in nature. Is there a reason why cultural, health or education sectors

were excluded from this?

Hon. K. Falcon: Actually, I think that's an excellent

question, and there is.

The reason is primarily that we wanted to ensure that this wasn't

an attempt to provide dollars for northern communities that could be used to

essentially off-load provincial government responsibilities. The province, as

the member well knows, has made substantial multi-hundred-million-dollar

increases in both health and education budgets, and while there are still

challenges out there, we wanted to ensure that the purpose of this fund was not

to be used to take on responsibilities that are indeed provincial

responsibilities.

What we tried to do on the purpose of the accounts was provide the

kind of scan that we've heard from those folks in the north who have actually

come to us with suggestions in areas that they need help on. I can tell the

member, for her edification, that in the meetings the Premier and I had with all

of the mayors and regional district representatives that would form the regional

advisory committees in the four different regions, they were very satisfied with

the scope of the legacy investment criteria.

Sections 18 to 20 inclusive approved.

section 21.

J. MacPhail: This deals with the Balanced Budget and

Ministerial Accountability Act. It seems to me that this

section allows several

ministers to get out of the requirements of the Ministerial Accountability Act

on the basis that they won't be deemed to have gone over their budget as a

result of distributing the grants.

[1635]

Why the intent there? If this is out of the billion-dollar sale,

why is there any exemption whatsoever for ministerial accountability? The

Minister of Finance has said over and over again that this is revenue-neutral,

that it doesn't have anything to do with any other aspect of government.

Hon. K. Falcon: The reason is that we are talking about

one-time funds here. It's an extraordinary situation that is neutral to the

bottom line of the accounts. It is similar in some ways to when we receive

federal health dollars well into a fiscal year. As I say, these will be neutral

to the bottom line. That is why it has been provided in the past and is being

provided here for the exemption under the Balanced Budget and Ministerial

Accountability Act.

Sections 21 and 22 approved.

section 23.

J. MacPhail:

Section 23 is entitled "Power to make

regulations." Subsection (2) of that

section allows the gov-

[ Page 11665 ]

ernment to amend the definition of the Cariboo-Chilcotin-Lillooet region.

What's the purpose of this section?

Hon. K. Falcon: We wanted to make sure that when we

established the four regions in the north that would be eligible to participate

in the northern development initiative trust fund…. We wanted to ensure that it

wasn't so inflexible in legislation that if the regional advisory committees

came to us and had a suggestion of a change that needed to be made that more

suited their purposes, we wouldn't have the ability by regulation to make that

change. That's the reasoning.

Sections 23 and 24 approved.

[1640]

Title approved on the following division:

YEAS — 27

Falcon

Coell

Brice

Santori

Barisoff

Bray

Lee

Plant

de Jong

Abbott

Coleman

Penner

Cobb

Jarvis

Hogg

Nuraney

Nebbeling

MacPhail

Kwan

Johnston

Hayer

Stephens

Bhullar

Wong

Halsey-Brandt

Suffredine

Kerr

NAYS — 1

Nettleton

Hon. K. Falcon: I move the committee rise and report the

bill complete without amendment.

Motion approved.

The committee rose at 4:43 p.m.

The House resumed; J. Weisbeck in the chair.

Report and

Third Reading of Bills

Bill 59, Northern Development Initiative Trust Act,

reported complete without amendment, read a third time and passed.

Hon. G. Plant: I call committee stage debate, Bill

[1645]

Committee of the Whole House

B.C. RAIL BENEFITS

(FIRST NATIONS) TRUST ACT

The House in Committee of the Whole (Section

B) on Bill

58; H. Long in the chair.

The committee met at 4:46 p.m.

section 1.

J. MacPhail: In

section 1, under the definition of

"allocation," we see that the government is putting $15 million into the first

nations trust. The government sale was worth $1 billion. What was the decision

process used to determine the $15 million figure going into the first nations

trust?

Hon. K. Falcon: It's consistent with the $15

million for each of the four regions that will be provided for. I think it's

important also to say to the member that, in addition to this acting as a tool

to help build capacity, economic development opportunities, educational

opportunities and cultural enhancement opportunities, the first nations will

also be able to fully benefit in all the benefits of the northern development

initiative trust funds. As members of the north, they will of course have ideas

that will be generally favourable for all northerners, not just first nations.

J. MacPhail: Under the definition of "eligible

first nations and treaty societies," there are 24 first nations listed. Are all

24 guaranteed access to the benefits set up in this trust without qualification?

Hon. K. Falcon: Yes, they are. I would just add one

thing: there are 24 first nations and one treaty society, the Gitxsan. But yes,

they are all eligible.

J. MacPhail: My question was "eligible without

qualification." So when the act is passed, all 24 of them are eligible?

Hon. K. Falcon: That's correct.

J. MacPhail: There's no qualification that they

have to sign on to something in order to be eligible?

Hon. K. Falcon: Yes, they would have to agree that

they wish to be a beneficiary first nation. In other words, they would have to

agree that they actually want to be part of it. But that is it.

J. MacPhail: What does the document say they have to sign

on to? I just want to review some history here, and perhaps we can clear it up

right now. Some of the first nations — in fact, I think many of them — expressed

concern that signing on means endorsing the government's broken promise that

they wouldn't sell B.C. Rail. Seton Lake Chief Garry John actually said it's

nothing more than hush money. He also said it amounts to asking for a blind

trust. What is it that they have to sign on to?

Hon. K. Falcon: I appreciate the opportunity to provide

clarification. There's no document per se. What would be required would be a

band council resolution simply stating that they wish to participate as a

beneficiary first nation.

[ Page 11666 ]

J. MacPhail: Have these first nations been made aware of

that and what form the resolution will take?

Hon. K. Falcon: Yes, they have.

[1650]

J. MacPhail: What information has the minister received to

date about how many amongst the 24 propose to pass such a resolution?

Hon. K. Falcon: At this point, we have indications

that over half of the first nations wish to participate. The balance have

indicated they wish to have time to actually review this piece of legislation

that we are currently debating, to ensure that it meets what we said it would

meet in terms of their requirements. Some also indicated they wanted to make

sure they had time to review the full details of the partnership and transaction

agreements.

J. MacPhail: Is the minister able to tell us which

first nations bands will sign on at this stage? Can you go through the list,

please?

Hon. K. Falcon: You'd make me read those names?

J. MacPhail: Well, no. And I appreciate it…. I'm

sorry to say that I am amongst those who have trouble pronouncing the bands. So

no, I am happy to have the minister refer to the letter indication under the

definition of eligible first nations and treaty societies. The letters he reads

out will be the bands that have indicated they're signing on.

Hon. K. Falcon: I do appreciate the member's

forbearance in allowing me not to have to pronounce all the names, because I

would humiliate myself here on television.

First is the Gitxsan Treaty Society, which isn't one of the

lettered initials, so I will mention that name. Then, moving down the list using

the ABCs as we talked about, the first is (c), then (d), then (g), (h), (i),

(j), (m)….

J. MacPhail: M?

Hon. K. Falcon: Yeah, "m" as in mother.

Then (o), (p), (r), (v), (w), and that's it.

J. MacPhail: Has that level of support changed

since November of last year?

Hon. K. Falcon: Yes, that number has come down

fairly dramatically from — I forget the month, actually — whatever month we were

having those discussions, when I think the number was closer to the 20 figure.

Primarily they were concerned whether it would abrogate or derogate in any way

from treaty responsibilities of the province. That is why we have included

clause 11, which is titled "No rights affected."

[1655]

That was really the major issue for first nations. Many of these

first nations, if I wish to hazard a guess for the member…. I believe that once

they have the opportunity to see this legislation, confirm with their own eyes

that they can see

section 11 is there, many of these first nations will come

aboard fairly readily.

J. MacPhail: Well, I have no idea whether the minister's

optimism is justified or not. There is just as much pessimism being expressed by

some first nations. Part of that pessimism is based on what they have determined

to be the lack of consultation on this whole process of selling B.C. Rail. I

gave the minister some questions yesterday around the questions I would be

asking about consultation.

Mr. Chair, there is a legal requirement for governments to consult

with first nations when their constitutional rights may be affected. Let me just

ask the minister for specifics on that. I'm going to go through the list of

questions on the specifics of the consultation.

In April 2003 the Premier and the former minister, now the member

for Nanaimo-Parksville, provided a letter to all first nations along B.C. Rail's

right-of-way to advise them of the government's decision to seek an operating

partner. The letter advised chiefs that the government representatives would be

in contact and inform them of the province's action. Then the province went out

and implemented this grand advise-and-inform strategy, and to date, when I asked

the minister about what consultation he had done, in estimates in the spring of

this year, 2004, he gave the same scenario of advising and informing. What

consultation has been done where there is actually more than just advising and

informing?

Hon. K. Falcon: No, these meetings were to inform and

advise. As I think I have said to the member but certainly publicly prior to

this, there was no obligation on the government to consult. As we've said before

many times, one of the real advantages of the CN–B.C. Rail partnership is that

the government maintains public ownership in perpetuity to all the lands, rail,

railbeds and rights-of-way. That has not changed. The only thing that has

changed is we have brought in an operating partner to operate the assets.

J. MacPhail: I disagree entirely with the minister's

interpretation that there is no obligation to consult. Now, I'm quoting an

anonymous source here, so the minister has every opportunity to deny this. As I

said earlier in second reading, it was reported in the newspaper in a pundit's

column — there is no question about that — that he was quoting from a comment

made to him by a staffer within the Ministry of Attorney General last December

2003. He said…. Well, I should say the person said — I have no idea whether it's

a man or woman — "A trust developed wholly by the province or with limited

involvement by first nations could result in the withdrawal of any support for

the partnership agreement and could also potentially affect broader government

relationships with first nations communities." Does the minister agree with

that?

[ Page 11667 ]

[1700]

Hon. K. Falcon: The confidential briefing note that the

member refers to was actually posted on the B.C. government website when that

matter was discussed at an open cabinet meeting in December 2003.

I think the issue in my mind is that we have actually had a number

of discussions with the first nations. I would agree with the member that some

of them disagree with our

interpretation of the transaction. That's certainly

their right — to disagree with us on that. As I say, we've been very clear that

this is a partnership arrangement and that there has been no change in ownership

of the railbed, the land, track or rights-of-way. That will be held in

perpetuity by the Crown through the government-owned B.C. Rail company.

J. MacPhail: Let's put that to the test, then. In the

process…. Well, beyond what happened in 2003, has there been any or even more

advising and informing of the first nations affected? If so, when?

Hon. K. Falcon: There has been. The meetings that were held

in 2004 include a Prince George meeting on February 12, 2004, in which 19 first

nation representatives appeared; on March 4, 2004, also in Prince George, where

20 first nation representatives appeared; on March 9, 2004….

Interjections.

The Chair: Would the members please keep the talk down a

little bit, please. Thank you.

Hon. K. Falcon: Thank you, Chair.

Do you want me to go back again?

Interjection.

Hon. K. Falcon: Okay. Sorry.

The meetings in 2004. February 12, 2004, in Prince George, B.C. —

19 representatives of first nations attended that particular session. On March

4, 2004, again in Prince George, 20 representatives from the first nations

attended. On March 9, 2004, in North Vancouver, six representatives of first

nations attended. On March 30, 2004, again in North Vancouver, 17

representatives of first nations appeared.

I should emphasize that that doesn't include the meetings that

were held by B.C. Rail with first nations. These are actually government

meetings that were held. To assist the member if she wishes, I've got an extra

copy of this, which includes the first nations and the representatives that

attended those meetings, which I'd be glad to share with the member.

J. MacPhail: Yes, I'd appreciate that. I'll take

the minister up on his offer to provide that — who attended and the dates. Thank

you. What was discussed at the meetings?

[1705]

Hon. K. Falcon: In those discussions…. The

advise-and-inform discussions centred on the specifics of this piece of

legislation that we're currently talking about. We provided a confidential copy

of the legislation for their working groups. I think the member will agree that

this is a fairly extraordinary level of disclosure. We answered inquiries and

questions that were raised. Actually, as a result of these sessions, we added

section 11 in response to their concerns that participating in the trust could

be considered to be consultation and/or accommodation. That is why

section 11

was specifically added.

Since some had concerns that they would not have enough time to

really study and think about the bill, we specifically structured the bill so

that they would have time to do that, to take time to study the bill. That's why

we list the eligible first nations with…. Once a band passes a resolution that

we discussed earlier, they would then become a participating first nation. That

was structured specifically that way as a result of the discussions we had with

the representatives of the working groups.

J. MacPhail: Is there a process of ongoing meetings now

that the legislation is public? What's the process to ensure — as much or not —

the right to participate amongst all 24? Are there ongoing meetings and advising

and informing?

[1710]

Hon. K. Falcon: No, we're not planning any meetings until

the trust is established. However, we will contact them by phone and letter to

ensure that they have a timely opportunity to decide and get notice to us if

they wish to participate.

Sections 1 and 2 approved.

section 3.

J. MacPhail:

Section 3 is the one that establishes the B.C.

Rail first nations benefits trust, and similar to the northern development

initiative trust, this trust under Bill 58 is established as a corporation, not

an agent of government. Does the government intend to include this new

corporation under freedom-of-information laws?

Hon. K. Falcon: No, the answer is very similar to the last

one. I believe it's important to underscore that the purpose of this is to

actually keep it at arm's length from government, separate from government. Like

any organization that is independent from government, they're not captured by

the Freedom of Information Act that the member refers to. But again, they will

be accountable to the members of their respective first nations. That is

something that will be coming up in a following section.

J. MacPhail: Well, I hardly think an organization is

compromised by being subject to freedom-of-information laws. And it's a trust.

It's a trust governed by legislation, fully funded by taxpayer money.

[ Page 11668 ]

I am moving an amendment to

section 3.1.

[SECTION 3.1, by adding the following section:

Freedom of

Information and Protection of Privacy

3.1

Schedule 2 of the Freedom of Information

and Protection of

Privacy Act, R.S.B.C. 1996. c. 165, is amended by adding the following:

Public

body: B.C. Rail Benefits (First Nations) Trust

Head: Chair.]

Amendment negatived on division.

Sections 3 to 10 inclusive approved.

section 11.

J. MacPhail: The minister says

section 11 was added

after his meetings with first nations. Let me this ask question.

I'll read

section 11 into the record, Mr. Chair. It says:

"No

rights affected

"Nothing in, under or arising out of this Act,

including, without limitation,

(

a) the inclusion of a first nation in, or the

exclusion of a

first nation from, the B.C. Rail Benefits (First Nations) Trust, or (

b) any

participation of any first nation, or any failure or refusal of any first nation

to participate, in the B.C. Rail Benefits (First Nations) Trust, abrogates or

derogates from any aboriginal rights or treaty rights of any first nation or of

any aboriginal peoples, including, without limitation, any right of a first

nation or of any aboriginal peoples to claim an aboriginal right or treaty right

in, to or in relation to any land, thing or matter."

The minister said that was provided after his advising and

informing meetings with first nations. How does the minister explain the

existence of that

section in relation to the revitalization agreement that

allows government to sell Crown land to CN for $1?

Here's what the revitalization agreement says.

Section 3.8 of the

revitalization agreement says that the landlord can transfer all of its right,

title and interest in the leased property to the tenant on an as-is, where-is

basis for $1.

[1715]

Hon. K. Falcon: As the member knows — I believe we

may even have canvassed this during estimates — what happens in a situation of

discontinuance…. When CN, as the operating partner with B.C. Rail, determines

they wish to discontinue a certain piece of land and have no further use for

that land, there's a discontinuance process that's involved.

As the member knows, and I won't go into detail, there are lots of

opportunities for government — as the owner, of course, of the railbed, the

lands and the right-of-way — to make some decisions. But I do want to underscore

this. If we were ever to sell land, consultation obligations may arise, and our

government would follow its constitutional obligations if we were to consider

selling land.

Sections 11 to 14 inclusive approved.

[1720]

Title approved on the following division:

YEAS — 25

Falcon

Brice

Santori

Barisoff

Bray

Lee

Plant

de Jong

Abbott

Penner

Cobb

Jarvis

Hogg

MacPhail

Kwan

Johnston

Krueger

Hayer

Stephens

Locke

Bhullar

Wong

Halsey-Brandt

Suffredine

Kerr

NAYS — 1

Nettleton

Hon. K. Falcon: I move that the committee rise and report

the bill complete without amendment.

Motion approved.

The committee rose at 5:23 p.m.

The House resumed; J. Weisbeck in the chair.

Report and

Third Reading of Bills

Bill 58, B.C. Rail Benefits (First Nations) Trust Act, reported

complete without amendment, read a third time and passed.

Hon. G. Plant: I call continued committee stage debate of

Bill 72.

Committee of the Whole House

TRESPASS AMENDMENT ACT, 2004

(continued)

The House in Committee of the Whole (Section

B) on Bill 72; H.

Long in the chair.

The committee met at 5:25 p.m.

section 7.

J. Kwan:

Section 7 of the act deals with

compensation issues, meaning that the court may order compensation. What

offences would be subject to court-ordered compensation?

Hon. G. Plant: According to the language of the

section, the compensation or restitution order is available in cases where

someone has been convicted of an offence under

section 4 or

section 5(7) of the

Trespass Act.

J. Kwan: I would be interested in getting the

minister to actually put on record the list of the offences that

[ Page 11669 ]

would be subject to this

section of the act in terms of compensation. Is it,

for example, trespass alone, or is it also if you fail to provide a name, which

is actually under

section 5? If you fail to give the person who is requesting a

name and address, you are deemed to be committing an offence. Would that

section

apply as well? And what other areas might this cover in terms of actual

offences?

Hon. G. Plant: I just did exactly what the member asked me

to do. I have itemized the offences. They are the offences in

section 4 of the

Trespass Act, and that would be the new

section 4 that will be enacted as a

result of passing

section 2 of this bill. It is the offence in

section 5(7),

which is not affected by this bill. I believe it is the offence where a person

other than an occupier or an authorized person must not remove, alter or deface

signs posted for the purpose of giving notice.

Just to maybe complete the thought. I think that the member, in

her question, referred to what will become the new

section 8, which is the

demand to give a name and address. An offence under that

section would not

trigger the compensation possibility under the new

section 11.

J. Kwan: I appreciate that. I inadvertently left the

original Trespass Act on my desk. I don't have

section 7 with me, which is why I

was trying to get the Attorney General to put this on the record. Then I wasn't

sure whether or not

section 8, which amends sections 7 to 9 of the original act,

would apply. I was trying to get clarity on that.

In terms of restitution, I can certainly appreciate, under

section

7, which is the original act, where we're talking about defacing of signage and

so on, where that compensation issue might come in. But on the other section,

where it deals with

section 4, are we talking about compensation for damages to

private property or are we talking of court costs? What exactly are we talking

about?

Hon. G. Plant: An order here requires proof of actual

damage or loss, and it would be actual damage or loss to the property or to

something else. What's required is that there be damage or loss sustained by the

occupier or another person as a result of the commission of the offence.

[1730]

J. Kwan: Of course, some of the issues that may arise from

this act…. It may be that the person who's charged and convicted of the offence

is made to pay compensation or restitution, but the person may not be able to

pay.

In the case where the individual is not able to pay the

court-ordered compensation…. What happens in those instances? Are we talking

about jail time, then, for the individual?

Hon. G. Plant: It won't be an offence to fail to pay

restitution. The law of tort generally does not inquire into the financial

circumstances of a defendant when there's a determination of the amount of

compensation owing for ordinary damages for loss. It's entirely possible in the

law of tort that someone who has no means could be sued for negligence, for

example, for having caused a motor vehicle accident that gives rise to a claim

in negligence. Then the plaintiff has to do whatever they can to try to recover

funds from the defendant for the injury, pursuant to the court order.

This would probably be somewhat similar. I think it is

theoretically possible that there are circumstances where a failure to pay

restitution might constitute a contempt. I think those would be pretty rare.

It's pretty difficult to get a contempt order from a court for failing to pay an

amount owing.

These are the usual consequences, I think, that would flow or

arise under the law in respect of this situation, which, to be clear, is a

situation where the trespasser has gone onto somebody's property and caused some

damage. The victim is probably standing in court. Rather than pursuing a claim

against the wrongdoer directly, the court says: "I think it's in the interests

of justice in this case to make an order for restitution."

One of the things the

section does is say that if the court makes

an order for restitution, then the victim of the loss or damage does not have

their civil cause of action in trespass. The trespasser could only be made to

pay once. There would not be a double recovery.

The idea of restitution in this

section is not a fine. This is

compensation for an amount of loss that's been caused by

an act of trespass. The

section presented here contains the same policy intent as the current

section 11

of the act.

J. Kwan: Then it's likely the case that if the landowner

wants to follow through if a person does not pay the court-ordered restitution

or compensation to him or her, the landowner or homeowner would have to start

another set of legal proceedings in terms of trying to follow up on that. Or it

may be that that's the end of the matter — with the caveat that it may be that

in some cases, contempt of court might be found. Assuming, generally speaking,

that's not the case, then the natural course of proceedings would be as I

outlined. Is that correct?

[1735]

Hon. G. Plant: It may not be quite that way. If the court

makes an order for restitution under subsection (1), then the victim's right to

recover is extinguished by the operation of subsection (2) even if no payment of

money is made. Once the court order is made, then according to subsection (2),

no action for damage lies against the defendant for the loss or damage sustained

as a result of the commission of the offence.

The only recourse that I can think of that would follow if someone

didn't pay restitution as ordered is, perhaps, the possibility of contempt in

some cases. I could say that, going back a ways now…. A long time ago I used to

do the odd contempt application in fam-

[ Page 11670 ]

ily cases. If you couldn't satisfy the judge that the defaulting payer had

assets, the judge wasn't interested in hearing from you. Contempt only became

relevant in circumstances where the defendant was able to pay and was doing

something to avoid paying. I expect that the same approach would be taken to

restitution orders in this provision.

Sections 7 and 8 approved.

section 9.

J. Kwan: Sections 9 and 10 make provisions to ensure that

land surveyors not caught in the act would have, I guess, some sort of

protection. Was this necessary because of the earlier

section in the bill,

section 4(2), where one is presumed to be guilty, presumed to have committed an

offence and not to have the consent of an occupier or an authorized person to be

there? Is that why this

section of the act is necessary?

Hon. G. Plant: Well, this is more a matter of housekeeping,

I think, than anything else. The existing Trespass Act contains a number of

sections, starting with

section 12, which says that a land surveyor is entitled

to go on land. Actually, it goes on to provide a penalty for refusing access to

a land surveyor. But there is a provision that says that if a land surveyor

causes damage on land, the owner may get the right to have the land surveyor

make good all the damage. That's in the existing Trespass Act.

What we are doing is taking those clauses out of the Trespass Act

and putting them where they belong, which is in the Land Surveyors Act. That's

the effect of

section 9 of the bill, and I think also of

section 10, which gives

effect to a change in the regulatory structure for land surveyors.

Yes, it is relevant. All of this is relevant for the purpose of

the defence to trespass which is in

section 4.1(

b) of the Trespass Act, which is

the fact that you cannot be convicted of trespass if what you were doing was

with lawful authority.

J. Kwan: I have one more question for the minister. Given

that the land surveyors are explicitly identified in this act with a provision

such as this for their protection, I imagine there are other groups that may

well be caught in a situation similar to that of land surveyors — for example,

those people who read meters around level of usage on water. I don't know what

you call them. What about people like that? Why are they not part of the act,

for example?

[1740]

Hon. G. Plant: Well, they may be protected in their

statutes. What we had here was an old Trespass Act that had some provisions

dealing with land surveyors in it. We're peeling out those land surveyor

provisions and putting them in the Trespass Act.

It's entirely possible that in other statutes or in other

regulatory instruments there will be found provisions that expressly give people

like, for example, a gas meter reader the power to go on private property for

the purpose of reading the meter. This doesn't touch that. That's why I say

what's happening here is that this is an amending bill.

The clause that we are now in,

section 9, is actually an amendment

not to the Trespass Act but to the Land Surveyors Act. There may well be other

statutes that contain provisions that would be relevant for the purposes of the

lawful authority defence.

J. Kwan: Just a final comment, then, with respect to that

general issue. I mean, it is interesting. This is an amendment act that the

minister has brought forward, and he said several times throughout the debate

that the reason why this act is before us is to modernize the act. It is to

update it and so on and so forth.

Yet in that process of updating, it would seem to me that there

are huge gaps that the government and the minister have actually neglected.

Actually, if we were to really update this act by way of an amendment act, then

one would have looked into those other issues to make certain not just that the

land surveyors issue falls into the right

section but also that other

individuals who might need such protection and should be given such protection

would have language here addressing those individuals and those professions as

well.

Having said that, it is my view that the government was playing

politics with this piece of legislation. We've already made those comments early

on in debate. I'll leave it at that. I know that the L-G is coming momentarily,

so I will just sit down and let the proceedings carry on.

Sections 9 to 11 inclusive approved.

Title approved.

Hon. G. Plant: I move the committee rise and report the

bill complete without amendment.

Motion approved.

The committee rose at 5:43 p.m.

The House resumed; J. Weisbeck in the chair.

Report and

Third Reading of Bills

Bill 72, Trespass Amendment Act, 2004, reported complete without

amendment, read a third time and passed.

Deputy Speaker: Hon members, I understand the

Lieutenant-Governor is going to be in the House in a number of minutes. If we

just want to take a very short recess, I will ring the bells when she has

arrived.

The House recessed from 5:44 p.m. to 5:51 p.m.

[ Page 11671 ]

[J. Weisbeck in the chair.]

Deputy Speaker: Hon. members, if the members would just

please take their seats. The Lieutenant-Governor is approaching the chamber.

Royal Assent to Bills

Her Honour the Lieutenant-Governor entered the chamber and took

her place in the chair.

Clerk of the House:

Community Living Authority Act

Range Act

B.C. Rail Benefits (First Nations) Trust Act

Northern Development Initiative Trust Act

University Amendment Act, 2004

Attorney General Statutes Amendment Act, 2004

Charitable Purposes Preservation Act

Justice Modernization Statutes Amendment Act, 2004

Forests Statutes Amendment Act (No. 2), 2004

Motor Vehicle Amendment Act, 2004

Expropriation Amendment Act, 2004

Land Title and Survey Authority Act

Finance Statutes Amendment Act, 2004

Property Transfer Tax Amendment Act, 2004

Trespass Amendment Act, 2004

Freedom of Information and Protection of Privacy Amendment Act,

Miscellaneous Statutes Amendment Act (No. 3), 2004

Transportation Statutes Amendment Act, 2004

In Her Majesty's name, Her Honour the Lieutenant-Governor doth

assent to these acts.

Her Honour the Lieutenant-Governor retired from the chamber.

[J. Weisbeck in the chair.]

Hon. G. Plant moved adjournment of the House.

Motion approved.

Deputy Speaker: The House stands adjourned until 10 o'clock

Monday morning.

The House adjourned at 5:54 p.m.

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