British Columbia Hansard — Tuesday, June 1, 2021 p.m. — Number 81 (HTML) (42nd Parliament, 2nd Session)
20210601pm-House-Blues
British Columbia — Debates (Hansard)
Second Session, 42nd Parliament
(2021) OFFICIAL REPORT
OF DEBATES
(HANSARD)
Tuesday, June 1, 2021
Afternoon Sitting
Issue No. 81
ISSN 1499-2175
The HTML transcript is provided for informational purposes only.
The PDF transcript remains the official digital version.
CONTENTS
Orders of the Day
Committee of the Whole House
Bill 11 — Miscellaneous Statutes Amendment Act, 2021
Hon. D. Eby
M. de Jong
T. Shypitka
Hon. B. Ralston
M. Morris
Hon. M. Farnworth
Report and Third Reading of Bills
Bill 11 — Miscellaneous Statutes Amendment Act, 2021
Second Reading of Bills
Bill 7 — Electoral Boundaries Commission Amendment Act, 2021 (continued)
I. Paton
M. Bernier
S. Bond
R. Russell
T. Stone
Proceedings in the Douglas Fir Room
Committee of Supply
Estimates: Ministry of Labour (continued)
G. Kyllo
Hon. H. Bains
Estimates: Ministry of Mental Health and Addictions
Hon. S. Malcolmson
T. Halford
A. Olsen
S. Furstenau
Proceedings in the Birch Room
Committee of Supply
Estimates: Ministry of Children and Family Development (continued)
K. Kirkpatrick
Hon. M. Dean
Hon. K. Chen
S. Furstenau
R. Merrifield
TUESDAY, JUNE 1, 2021
The House met at 1:33 p.m.
[Mr. Speaker in the chair.]
Orders of the Day
Hon. M. Farnworth: In this chamber, I call Committee stage on Bill 11.
Then in
Section A, Douglas Fir Room, I call continued estimates debate on
the Ministry of Labour. When that’s finished, I will call the Ministry of Mental
Health and Addictions.
In the Birch Room,
Section C, I call the estimates of the Ministry of
Children and Family Development and child care.
Committee of the Whole House
BILL 11 — MISCELLANEOUS STATUTES
AMENDMENT ACT,
The House in Committee of the Whole (Section
B) on Bill 11;
N. Letnick in the chair.
The committee met at 1:35 p.m.
The Chair: Attorney, did you want to introduce your staff before
starting? Go ahead.
Hon. D. Eby: Thank you very much, Mr. Chair.
Joining me today with the COVID-19
Related Measures Act proposed amendments is Alex Stirling, legal
counsel, policy and legislation division; Natalie Barnes, deputy
supervisor, legal services branch; and Heather Brazier, executive
director of policy and legislation, emergency management B.C.
On clause 1.
M. de Jong: I probably should just confirm procedurally what I think the
intentions are. The Attorney and I are engaged in the first eight
sections of this bill, and it’s my understanding thereafter that the
ministers responsible for the Clean Energy Act and, subsequently, the
Motor Vehicle Act will appear to entertain any questions that exist with
respect to those subsequent acts.
The Attorney is indicating that that is the case, and that that’s
agreeable. I’m pleased to hear it.
The first
section of the bill relates to extending an effective
date of a piece of legislation that was passed back in July of 2020. It
was that the COVID-19 Related Measures Act was passed in the wake of an
Ombudsman’s report that levelled some criticism of the government for
issuing orders under the Emergency Programs Act for which the
Ombudsperson indicated the government didn’t possess the legal
authority.
My recollection of that debate is that the Attorney General,
speaking for the government, indicated a disagreement with that
proposition and that position held by the Ombudsperson but then,
secondly, said that the introduction of the amendments in what was then
Bill 19 rendered that whole argument moot. In any event, I don’t propose
to recover or to revisit all of those arguments and all of those issues
that were canvassed in some detail back when Bill 19, the COVID-19
Related Measures Act, was first introduced.
But maybe I should simply put this question insofar as
section 1
purports to extend chronologically the time for which Covid-19 Related
Measures Act orders granted will have effect.
Is it fair for me to suggest that as far as the Attorney General
is concerned and the government is concerned, Bill 19, and the amended
Emergency Program Act that it created, resolved definitively the
question of paramountcy between the EPA and other statutes in favour of
the EPA? Is that a fair synopsis?
[1:40 p.m.]
Hon. D. Eby: Perhaps it goes without saying, but I do want to put on the record
that government was of a different opinion than the Ombudsperson about
the authority to pass orders. Obviously, as Attorney General I take the
responsibility for government to act lawfully quite seriously. With that
said, there was a difference of opinion. Obviously we had the belief,
the understanding — and still do — that the orders were made
lawfully.
As far as the Ombudsperson’s concern, as I understand it, was
expressed, when the COVID-related orders were incorporated into the
COVID-19 Related Measures Act, they converted from an order to statute
and, therefore, would address the concern, as I understand it, stated by
the Ombudsperson. Although, again, just noting that we did not agree on
it, but it would address it.
With respect to paramountcy, there were provisions in the EPA that
predated the pandemic that made it clear that orders made under the
emergency powers act are, to the extent that they’re in conflict with
the statute book, paramount over contradictory laws or provisions. That
was also included in the CRMA, the COVID-19 Related Measures Act, which
I’ll refer to as CRMA throughout our discussion today. That was
replicated in the CRMA legislation.
I will note that the CRMA change — one of them was to elevate a
power that we believe lawfully existed with a single cabinet minister,
the Minister of Public Safety, to cabinet as a whole, which was not a
change in terms of the authority but was a change in terms of, in our
opinion, additional oversight — that it was the executive council, the
LGIC, rather than a single cabinet minister, exercising
authority.
M. de Jong: Thanks to the Attorney. I wasn’t trying to lead him on. I think
that is confirmation of what I assumed the position of the government
was. As I indicated a few moments ago, I’m not intending to rehash the
arguments that were canvassed in detail at the time the original act was
debated and passed back in July of last year.
What I will do, though, and it’s a nice segue from what the
Attorney has just summarized for the committee, is ask for his response
to the following proposition. The combination of what was Bill 19, COVID
Related Measures Act, and the amendments that were made to the Emergency
Program Act, particularly the creation of
section 10.1, creates
purposely broad, sweeping powers, exceptional powers that are to be
exercised by the executive branch of government, without any
involvement, debate or oversight by the legislative branch of
government. I don’t say that and attempt to describe it as some kind of
nefarious exercise, but that is the intention of what is now created and
exists legislatively.
[1:45 p.m.]
Hon. D. Eby: When the amendments were made to the emergency powers act, the
intention of government was not to create a new authority exempt from
legislative oversight. It was to convert an existing authority under the
EPA, the emergency powers act — I’ll refer to it as EPA from now on —
which was in the hands of a single minister, and give it to LGIC,
Lieutenant-Governor-in-Council, rather than a single minister. So it
wasn’t an intention to create a new authority.
Within that pre-existing act, it was the intention of the
emergency powers act to allow government to respond in case of an
emergency, when the Legislature was not able to assemble — to respond to
an emergency and to make provisions for British Columbians as necessary.
The power is intended to be exercised in a state of emergency when the
Legislature is not able to come together, but it was a pre-existing
power, not intended to be modified by the amendments to the
EPA.
Now, there is meant to be, through modifications of the CRMA and
the EPA, a new level of legislative reporting, which is that when
government does introduce a new order under the EPA, or one of those
orders is converted into a legislative instrument under CRMA, there
needs to be a report to the Speaker with the intention that that would
be distributed to the members of Legislature so that there was a
reporting mechanism built in, which we believe would enhance — or at
least was intended to — communication, transparency and, ultimately,
accountability for orders that are made during an emergency.
M. de Jong: First of all, I was not, nor do I now endeavour to suggest that
what the government was attempting to do with the introduction and
passage of Bill 19 was create a new power. I think the committee
understands the explanation, the rationale that the Attorney has
offered. I think he has also acknowledged that it is….
What we are dealing with here is an extraordinary power,
one that pre-existed in the Emergency Program Act, and I suppose, in the
earlier debate, analogies were drawn to earlier legislation federally —
the War Measures Act — and those kinds of extraordinary powers that have
existed that allow for the exercise of authority in ways that are
different, the exclusive exercise of authority by the executive branch
without the traditional types of oversight that exist by the legislative
branch of government.
[1:50 p.m.]
The Attorney also talked about situations where the Legislative
Assembly is unable to meet. I’m going to come to that. What I was hoping
to do today, as we consider the extension of timelines to take account
of the reality that we’re confronted by — and that is the ongoing
pandemic, the ongoing state of emergency — is ultimately to pose some
questions to the Attorney about what we have learned about the exercise
of those powers and whether it is appropriate at this point to think
about what we’ve learned and whether that would impact, going forward,
the use of those powers. I’ll get to that in a few moments.
I wanted to acknowledge that emergencies and the use of emergency
powers do always involve striking a balance between the need to respond
quickly to an exceptional set of circumstances and the need to protect
our traditional reliance and respect for the rule of law and the role of
the legislative branch of government.
Here’s a question for the Attorney. I don’t want him to receive it
as a form of criticism, necessarily, of the steps that the government
has taken. But we are debating these provisions, and it is the job of
the opposition to consider the use that may be made of the authorities
and powers that are created, not just by the present government and not
just in the present circumstances but the uses that might be made of
those powers by future executive councils in circumstances that we can’t
imagine today.
What would the Attorney say are the safeguards? He has alluded to
one change that was made back in July that I expect he will point to as
a safeguard. What are the safeguards against the unreasonable use of
these extraordinary powers?
I expect that the Attorney will, for example, say: “Well, they are
time limited.” That, of course, is the essence of the
section that we
are debating in this bill. It is an extension of that time for reasons
that I think the committee and the House will ultimately be supportive
of.
But what are the safeguards the Attorney would point to as
protecting against the unreasonable use of these extraordinary
powers? The timelines, the finite nature of the power, the courts, I
suppose, but what else?
[1:55 p.m.]
Hon. D. Eby: There are a couple of different safeguards. The member is right. I
would've pointed him to the fact that, rather than a single individual
having authority, a single minister, that it has been elevated to
cabinet, the authorities under the EPA, and that, by function, means
that you would need to have an entire rogue cabinet as opposed to a
single rogue minister, which is a safeguard.
But something that the member didn’t mention…. Although he did say
that the courts are a safeguard — they are — but we’ve given the courts
some tools for oversight of governments under
section 10.1 of the
amendments of the EPA. Informally, we’re calling them the
proportionality and necessity tests.
So under
section 10.1, you can only impose or use this authority
if the benefit of the new measure is proportionate to the continued
application of the existing law that it purports to amend or change.
There has to be a proportionate benefit to the change that the authority
is being exercised to implement. There has to be a benefit that is
proportionate to just leaving the law alone as it is. That’s the
proportionality test that the court could, on judicial review,
determine; whether, in the court’s opinion, that benefit was in fact
proportionate, or whether, perhaps, there was insufficient benefit to
justify aggregating the existing law.
The second is the necessity test, as we’re calling it. The
legislation says that it’s necessary to exercise this authority in order
“to prevent, respond to or alleviate the effects of an
emergency.”
[2:00 p.m.]
This again provides the court with an opportunity to say: “Okay,
was it necessary for government to use the EPA to alleviate? Does it in
fact have a prospect of alleviating or responding to or preventing
negative effects coming from the emergency? Was it necessary?” The
context for exercise of these authorities is that they can only be
exercised if a state of emergency exists, which is another safeguard
that may be so obvious that it goes without stating it, but I will say
it.
Under CRMA, there is an additional safeguard. It is a tightening
of the necessity test. The authorities under CRMA can only be used if
the relevant incorporated order that becomes a statutory instrument is
necessary to respond to the actual COVID-19 pandemic. So CRMA won’t be
able to be used to respond to other emergencies that are not a
COVID-19-related emergency.
Finally, under subsection 10.1(7), there are a couple of other, as
we’re calling them, brakes on the authority. One is that you’re not
allowed to shorten a time period under the EPA. Someone has an existing
privilege under legislation to have a certain amount of time in order to
file something, perhaps for a statute of limitation of some kind. You
cannot shorten those time periods using an EPA power; you can’t increase
fees using the EPA authorities — so more minor types of brakes on
authority but some additional and important protections.
M. de Jong: Thanks to the Attorney. He has pointed out two tests incorporated
into the legislation: proportionality and necessity, which are relevant
and are helpful and, I think, a partial response to the question I
posed.
I suppose it goes without saying, though, that a cabinet, an
executive council, that authorizes the orders that are the product of
this legislation would have therefore turned their mind and concluded
that the exercise of the extraordinary power through the order is
both proportional and necessary. I guess the nature of my question is
perhaps more procedural, in terms of who, if anyone, short of the courts
— well firstly, the cabinet and then ultimately, I suppose, the courts —
might have an opportunity to render an opinion around the questions of
proportionality and necessity.
This is what brings me to, maybe, the heart of my question, as we
stand here, 15 months into the pandemic and the state of emergency that
presently exists. It’s this question that I have been posing to myself.
I don’t pretend to have settled upon a definitive answer, but I think it
is a relevant one to pose to the government and the Attorney
General.
That is: should a government’s ability to override existing laws
and rules and regulations change when emergency circumstances, giving
rise to the state of emergency, extend over a greater period of time and
the circumstances around that emergency change?
To particularize it to the situation we’re facing today — as the
Attorney pointed out a few moments ago — in the early days of this
pandemic, it wasn’t even clear if this assembly could meet. In fact, it
held an extraordinary, truncated one-day session in March, I think, of
last year, and that was it. No one was entirely certain how or when the
assembly was going to be able to meet. In those circumstances, the
ability of the executive council to respond to emerging circumstances
necessarily had to function, had to exist, absent the traditional
oversights of the legislative branch of government.
[2:05 p.m.]
That changed within a few months. By the summer of last year, the
assembly was able to meet through the good work of a lot of people,
including the Clerks and the staff in this building. We were able to
meet and continue to be able to meet. Is there a role in those
circumstances, and does the Attorney — not for the purposes of this
bill; it’s obviously here in its present form — think there is merit in
the suggestion that incorporating some modest measure of additional
oversight by the legislative branch would be worthwhile?
What do I mean? What might that look like? The orders that are the
product of this legislation are presently tabled with the Speaker in the
Speaker’s office for distribution. Given the extraordinary nature of the
powers being assumed by those orders, isn’t there some merit…?
When we have moved beyond the crucible of the crisis to where this House
can function reasonably normally, might not these orders be referred to
a select standing committee for the opportunity to review, to ascertain
and confirm that the tests of proportionality and necessity have been
met?
Presumably, they would. The government that issued the orders
would still maintain a majority on those committees. But if the Attorney
has my point, when we move beyond the height or the initial stages of
the crisis to where we are, for example, today, with a reasonably
well-functioning parliamentary assembly, there is an argument to be made
for providing the legislative branch with some opportunity to examine
and comment upon these orders that, by definition, bestow extraordinary
powers upon the executive branch.
[2:10 p.m.]
Hon. D. Eby: Thank you to the member for the thoughtful question.
There are a few different threads that could be followed here. One
is the overall theme that maybe there are ways to do this better, in
terms of emergency response, ways to incorporate the Legislature better,
or oversight generally.
I can advise the member — and I think he’s aware, but I’ll put it
on the record anyway — that emergency management B.C. and public safety
is interrupted by the pandemic, ironically, but is doing a modernization
of the emergency powers act. This act will be ultimately repealed and
replaced with a modernized act. It’s a good opportunity for the member
and others that have suggestions about how we can do things better to
provide that feedback. I can assure the member he doesn’t need to write
a letter. We have his points, and there are staff on the call that
listen to his questions, so he doesn’t need to duplicate that
effort.
With respect to the Legislature functioning now in a way that it
didn’t in the early pandemic, the idea of the reports to the Clerk was
that all members would get notice of all orders, and if there were
concerns or a need for debate, certainly question period is an
opportunity for raising points around debate and concerns, issues raised
by members. Not to suggest that that’s better than what the member
suggested, just to say that there are opportunities for those questions
to be raised.
The overall theme of review of executive action in terms of
emergency authorities certainly should be reserved for the courts. I say
that noting that the member wasn’t necessarily suggesting that a
committee would overrule the executive emergency order, but maybe it
would provide an opportunity for debate, feedback, refinement,
suggestion and so on. I did want to note that this scheme has been
designed in a way intended that the courts would be providing that
oversight.
With respect to this overall approach, there are some measures
that began as COVID-related responses. We just wrapped up the municipal
affairs bill. That started as emergency responses around how well
government could respond in light of the pandemic, now brought in front
of the House for debate and refinement in the form of a bill because
these are things that we want to carry forward from the pandemic into
the Legislature and ultimately into the statute book for the province
and authorities for local governments. That transition from emergency
authorities into permanent authorities where appropriate is happening
through legislative debate.
[2:15 p.m.]
There are some changes that just don’t need to be permanent. One
of our recent emergency orders was around the South Coast Transportation
Authority not having to file their budget because their income and
expenses are so bizarre that they’re still working their way through
these kinds of things. So not having to hit the statutory deadline for
their budget filing and being able to incorporate pandemic impacts —
this isn’t something that we want to have be a permanent statutory
change. It’s a temporary authority and one that we hope will not be
necessary again.
For those temporary authorities, they are the ones that will not
be coming back to this House in the same way that the municipal affairs
changes would, the sort of legacies that we want to keep versus changes
that are temporary just to respond to the emergency.
M. de Jong: I think it is a very valid point to observe that out of crisis of
the sort we have experienced, some adjustments, some innovations are
deemed appropriate to become permanent fixtures. The advent use of
different technologies and authorizing those uses on an ongoing basis
would be, I think, an appropriate example that I think the Attorney was
looking for.
I was not — and he fairly pointed this out — suggesting in any way
vesting in a legislative committee the authority to frustrate the
exercise of executive branch powers. What I was and am suggesting is
that over the life of an emergency, that emergency exists in different
stages and imposes different degrees of limitations on the
abilities, or demands on the abilities, of governments to act. When we
find ourselves where we are today, we all hope and presume, emerging
from the darkest days of the pandemic, in those circumstances, finding a
more direct role, more direct engagement for the legislative branch to
comment upon and sometimes to diffuse some of the public pressures
building….
The Attorney knows that over the course of the pandemic, there
were times when public acceptance, public debate around the
appropriateness of some of the orders that were issued by the
government, boiled over. Providing a venue legislatively…. The Attorney
said: “Well, when the House is sitting, we’ve got question period.” That
may be the first time I’ve heard question period described as the ideal
venue for a thoughtful conversation on just about anything, but if that
has been the Attorney’s experience, then I applaud him for coming to
that conclusion.
That aside, there may be an opportunity, through the legislative
rewrite, to consider at some point…. I am not suggesting that, to use
this example, March 17 would have been the ideal time to convene a
legislative committee to provide some venue for additional discussion.
But at some point, providing the legislative branch with an opportunity
to consider some of these issues and provide comment, at least, on
whether the tests of proportionality and necessity have been met or are
adequately reflected in those extraordinary orders and the exercise of
that extraordinary power would be appropriate.
I will let the Attorney comment, if he wishes, and then
continue.
[2:20 p.m.]
Hon. D. Eby: I won’t do the member the indignity of a straw man response to his
point. You know, how dare he suggest that we, in the middle of the early
days of the pandemic, assemble the whole Legislature. I understand quite
clearly the member’s point, and I take his gentle chiding about question
period as a venue for sober debate of serious emergency authorities as
perhaps not the ideal venue.
I think he has a very important suggestion. I can assure the
member that I will take his suggestion back. We certainly agree, to the
extent it is possible, that even in a state of emergency, especially in
a state of emergency where urgent action is needed, we work across party
lines in a cooperative way, especially when the public needs reassurance
that the measures are being taken for the appropriate reasons, namely to
respond to an emergency. That could be a beneficial approach to
addressing concerns.
I think there are some folks we would not…. Even if all the
parties — which we did, through much of the pandemic — stood together
and said these health orders were necessary, it would not be
satisfactory for some individuals. But for others who may have some
questions, it might be.
I take the member’s suggestion seriously. I can assure him that
staff on the call have heard that as well. I don’t have an immediate
response for him, but I have his point.
M. de Jong: In preparing for this discussion, I went to the Statutes of B.C. I
went to Bill 19. The question I had at this stage of the pandemic and at
this stage into the declaration of the state of emergency…. I was
curious to know how many orders had been issued that fell within the
ambit of the COVID-19 Related Measures Act or the Emergency Program Act,
or any other pertinent piece of legislation for that matter.
What I found at the end of the bill was…. I did this on May 18, so
executive council and ministerial orders on B.C. Laws as of May 18,
2021. It includes a lengthy list of various orders and regulations, but
it also includes this caveat that this list may not be
exhaustive.
Is there an exhaustive list? If a person wanted today to know how
the executive branch has applied the powers contained within the
COVID-19 Related Measures Act and the Emergency Program Act, is there a
place that they can go for an exhaustive list of those
orders?
[2:25 p.m.]
Hon. D. Eby: There are a couple of ways British Columbians can see this. The
first and probably the most complete is the B.C. Laws website. There is
a COVID
section on that website. It has all of the regulations and
orders made under the EPA and CRMA. It also includes any changes that
were made under other enabling legislation.
As an example, there were changes made around the change fee that
people pay on their car insurance if they’re not driving because of the
pandemic. That was a change to the Insurance (Vehicle) Regulation. So
something like that is under this
section as well. The changing of
bylaws of various health regulatory bodies to allow vaccinations to be
administered by different professions is also under this section. So
it’s a very complete list.
On the COVID
section of the B.C. government website, there is a
justice sector
section that has every report that has been made to the
Speaker as a result of regulations and orders under the EPA and
CRMA.
Then, finally, I’m advised that staff are working on a complete
table for release to the public, intended to display all the orders with
the in force dates under CRMA. CRMA is intended to step us down from the
state of emergency so that everything doesn’t, as of the end of the
state of emergency — all the orders — immediately come to a crashing
halt, regardless of the consequences.
Some are phased out over time, so people have notice that when
they hear that it’s the end of the state of emergency, they know they
have 45 days that this authority will stay in force, because the end of
the state of emergency is not a certain date. That gives people notice
that that authority will be expiring. There will a table that is going
to be produced for the public to have a quick reference around these
authorities and when they’re going to be phased out under
CRMA.
M. de Jong: I think the list I have is from the B.C. Laws. If the Attorney is
indicating that there is a version of that list that doesn’t come with
the caveat of “this list may not be exhaustive,” then that’s helpful to
know. The one that I found states fairly explicitly that it may not be
an exhaustive list.
If that’s not the case, if it is exhaustive, maybe they can remove
that caveat. If there is another list that does represent a complete
listing, then I’ll take that advice happily from the
Attorney.
[2:30 p.m.]
I wondered about asking this next question, because on the one
hand, it seems sort of remarkably oversimplifying a very complex
period in our history, but it’s an extraordinary time and these orders
represent the exercise of extraordinary powers. I’ll ask the question,
in any event.
So 14 to 15 months after the declaration of a provincewide
state of emergency, can the Attorney, with the assistance of his staff,
indicate how many orders have been issued pursuant to the COVID-19
Related Measures Act and the Emergency Program Act? I was surprised by
the number I saw listed, and as I said, my list purports not to be
necessarily an exhaustive list. What information is the Attorney, with
the assistance of his staff, able to offer about the number of orders
that drew on the powers that we are debating in the legislation
today?
[S. Chandra Herbert in the chair.]
Hon. D. Eby: With respect to the B.C. laws — the completeness of the list — the
reason for that caveat being there is that it can take a day or two for
the website to update from activities in the Legislature. So the
reference is meant simply to be guidance to folks to check, for example,
the Hansard if you wanted a complete list. There is a bit of a
lag there, so it may not be complete for that time period. For those who
are particularly focused, detail-oriented, that list may be incomplete,
but just because of that lag. Otherwise, it would be a complete
list.
With respect to the different orders, there are three orders that
are still under the EPA that have not been moved over to CRMA. These
orders relate to, first of all, the protective measures, which are
around tickets that would be issued for non-compliance with the public
health orders. Those aren’t necessary after the state of emergency. They
can expire at the end of the state of emergency. That’s not a problem.
The same for the face coverings and the travel restrictions — all of
those orders will expire immediately following the end of the state of
emergency.
There are about 50 orders that have been ported over to CRMA.
These are the orders that were made under the EPA but need to be stepped
down over time following the end of the state of emergency.
M. de Jong: That’s helpful. I think the explanation around the time lag makes
sense. To the extent that staff are listening, and I’m sure they are,
they may want to make that point — that it takes time. In this case, of
course, for reasons we’ve just discussed, it’s not the delay from the
operations of the Legislature but the time it takes to get information
from the executive branch published which would account for missing
orders.
[2:35 p.m.]
That aside, I will assume the list is, therefore, a complete one,
limited only by the few days’ delay it would take to get new orders
added that have been issued by the cabinet.
When the Attorney was discussing with the House and the committee
of the House back in July, he made a point, and has again during this
discussion, of the transitional nature of some of these orders. He has
emphasized the challenge that would result if all orders expired
contemporaneous to, at the same time as, the state of emergency — that
in some cases, that would be problematic. That’s one of the great
rationales for the original act in the first place and for the time
extension that
section 1 provides for to the COVID-19 Related Measures
Act to the end of this calendar year.
I was thinking back to the discussion the Attorney had back in
July. He talked about some of the orders. He emphasized some of the
orders that then were, I think it’s fair to say, front and centre in
people’s minds. There was Ministerial Order M084 around the fair
distribution of essential goods. M115 is the prohibition on
unconscionable pricing.
There are too many orders for me to go through in this committee
one at a time with the minister, so I’ve picked a couple that he
referred to at the time the legislation was introduced and passed in
July, because clearly, he and the government attached importance to
those orders. Are those orders, the two that I have mentioned that would
qualify for the need to continue…? Based on what the government and the
Attorney know today about the state of circumstances, the state of play
in our society, are those orders that the Attorney believes would need
to continue beyond the expiration of the state of emergency?
[2:40 p.m.]
Hon. D. Eby: Currently, there’s a review happening with all ministries through
emergency management B.C. and through my office, my ministry, in terms
of all orders that are currently under CRMA and whether they need to be
continued past the end of the state of emergency. There are some…. I can
provide, as examples to the members, orders that will not be ending at
the end of the state of emergency.
Order M162 is item 17 of
schedule 2 of CRMA. This deals with
representation agreements and powers of attorney. Even when the state of
emergency ends, we expect that there will be risks related to COVID and
possibly, necessarily, public health orders that might restrict
someone’s attendance at a hospital — for example, someone who is in an
immunocompromised state.
We want to make sure that there’s enough time left between
the end of the state of emergency and the lapsing of this authority to
do remote representation agreements or remote powers of attorney to be
able to accommodate those public health restrictions, even after the end
of the state of emergency. That order is proposed to expire 90 days
after the end of the state of emergency.
Another example is Order M114, which is
schedule 1, item 1 of
CRMA. This allows people to attend strata property meetings
electronically. It is proposed to expire on July 10, 2021. One of the
reasons why this order will be extended past the end of the state of
emergency is…. Our hope is that stratas will use the opportunity to
modify their own bylaws if they want to allow remote meetings, because
if it goes overnight, they might miss that window of opportunity to be
able to change their bylaws to allow remote meetings to take place.
There may still be restrictions — public health restrictions, for
example — on meetings of 50-plus people after the end of the state of
emergency. So we wanted to provide some space to hopefully accommodate
that.
I hope those examples are illustrative, but the larger
answer to the member’s question is simply that that review with
ministries about when these should expire is happening right
now.
[2:45 p.m.]
M. de Jong: Is the Attorney General to make the product of that review
— the report or the recommendations or, ultimately, the findings —
public so that people will have knowledge? By that, I mean make it
public in a complete form. I mean, there are a finite number of orders.
Will that happen prior to the end of the state of emergency?
The Attorney has pointed to some orders. I think they are good
examples. I might actually ask a question or two about those specific
ones. I’m trying to get a sense, though, as to what the test will be.
Again, almost a year ago the concern was about price gouging and the
fair distribution of essential goods. It strikes me that that is no
longer a concern, and that those orders — M084 and M115 — would lapse
with the state of emergency. But if I’m wrong, the Attorney can tell me.
Or maybe he’s at a point where he can only say: “I don’t know at this
stage.”
But what kind of test? The essence of the bill is about providing
a mechanism by which some of these orders can continue beyond the ending
of the state of emergency, for up to the end of the calendar year. But
what kind of test is going to be applied to determine…? The two examples
the minister has given suggest to me that in the one case where there is
perceived to be a lingering health issue that needs to be addressed,
that would mitigate in favour of an extension beyond the ending of the
state of emergency.
I hope that the Attorney catches the drift of what I’m looking for
in terms of what will guide the decisions around the continuation or
ending of these orders. Then secondarily, it would be helpful if people
had the benefit of that information in advance, not piecemeal sometime
thereafter.
Hon. D. Eby: Two parts to the member’s question. The first is how it will be
publicized — the various dates.
This table that’s being prepared with all of the orders under CRMA
— for public distribution, both online and otherwise as appropriate —
will be the way that the public is notified about the various dates of
expiry. Of course, they’re in the statute, but we want it in a more
accessible format for people to be able to find it quickly on the
government website.
[2:50 p.m.]
The member asked about the test, and I do have his point. The test
is really identical to the overall test in the EPA. We talked about
proportionality and necessity. So the question is, really: is it
necessary to continue this to respond to the effects of the pandemic —
that they’re going to continue past the end of this state of
emergency?
For both of those orders that I went through, we do expect
effects related to COVID to continue past the end of the state of
emergency, whether it’s a need for the remote execution of a
representation agreement or a power of attorney because of a public
health restriction related to visiting a hospital or with respect to a
strata council that has more than 15 members wanting to hold a meeting
in person but being restricted by a public health order that would
prevent them from doing that.
The second is proportionality, of course. Continuing the order
past the end of the state of emergency is…. The benefit is proportional
to allowing the statute to continue in its original form.
The member had a specific question about the price-gouging
protective order. It was
section 115, which I, maybe, worded
poorly. I made it sound like we were protecting price
gouging.
The order, which was intended to respond to concerns about
hoarding and price gouging in the early stages of the pandemic…. I’m
advised by staff…. They have confirmed that the intent is to allow it to
lapse with the end of the state of emergency. It would not be extended
past the end.
M. de Jong: Thanks to the Attorney.
A couple of things that, then, flow from that. I’ll make this as a
statement. I hope the Attorney, in the first part of what I’m going to
say, will deem it appropriate to offer his thoughts.
My comment goes as follows. Extraordinary orders that were issued
during the time of a state of emergency that went beyond the statutory
authority or the provisions of existing statutes but were otherwise
required and deemed proportional and deemed necessary…. In situations
where the decision is made to continue those orders beyond the life of
the actual state of emergency, there is — I would suggest — an increased
threshold. There is a heightened threshold for necessity and
proportionality. I hope the Attorney understands what I mean by
that.
The rationale for the order, in the first place, was a state of
emergency. Once that state of emergency ends, there is — I would
suggest, and I would submit — a heavier burden. What I am concerned
about is that there may be a prevailing attitude in some quarters that
goes as follows: “Yes, the state of emergency is over. But out of an
abundance of caution, we will maintain these extraordinary
orders.”
I don’t think that’s the test. In some cases — I think the
Attorney has pointed out — it will be possible to demonstrate a
legitimate need and wisdom. I think the burden increases and, I would
suggest, should increase following the ending of the state of
emergency.
I’ll let the Attorney, if he wishes, comment on that. Then I think
I have one more question on the matters we’ve been discussing
here.
[2:55 p.m.]
Hon. D. Eby: In CRMA, there is a specific statutory test, which is that the
orders under CRMA — the statutory instruments incorporated under CRMA —
must be necessary to respond to the effects of the pandemic. There are
two distinct moments, obviously. One is the end of the state of
emergency under the EPA. The other is the unwinding of and the
relaxation of public health orders, and so on, related to
COVID.
We do not expect, at the end of the EPA state of emergency, that
public health orders related to COVID will also be wrapped up. We expect
the state of emergency to end before that. Because of that, there will
still be effects of the COVID-19 pandemic, which is what CRMA is all
about. These measures must be necessary to respond to the effects. As
soon as they aren’t, then they are no longer justified under the
act.
To that end, of the approximately 50 orders that have been ported
over into CRMA to become statutory instruments…. I’m advised by staff
that about half of those, about 25, have expired either because they
have a limitation date within the order itself, up until whatever date
it was not renewed, or because it was then revoked through a subsequent
regulatory amendment.
As society opens up again and as we begin the restart plan, all of
these kinds of things…. As more people are vaccinated and as the numbers
come down, what the member should see is that these orders are being
pared back. From the original 50 that have been ported over to CRMA,
down to about 25 and then the gradual reductions, as they’re no longer
necessary to respond to the effects of the pandemic, which is the
test.
The member is suggesting a heightened test. The test is embedded
in the statute, in CRMA itself. The provision must be necessary to
respond not to the state of emergency but specifically to the COVID-19
pandemic.
M. de Jong: A short question that we should, I suppose, put on the record. In
all cases, the legislation and the section contemplate the orders
expiring not later than December 31, 2021, correct?
[3:00 p.m.]
Hon. D. Eby: The member is correct. December 31 is the ultimate end date there.
I’ve been advised by staff that I would be well recommended to make a
small caveat. I advised the member that there were three measures still
under the EPA that have not been ported over to CRMA. One was the ticket
provision, one was the travel restriction and one was the mask
restriction.
I’m advised that while it is very likely that they will
expire at the end of the state of emergency, there is still some
public health analysis that may require them, if conditions require them
to be ported over to CRMA. So I wouldn’t want the member to leave here
believing that that was 100 percent clear, given the fluctuations in the
pandemic and so on. So hopefully that caveat on the record assists
people in understanding where we’re at. But December 31, 2021 is the
relevant date.
M. de Jong: The three orders the Attorney has referred to — they, too, have
that ultimate limitation of December 31. Is that correct?
Hon. D. Eby: Correct.
M. de Jong: The last area, just on the schedules…. It was prompted by
something the Attorney said with respect to Order M114 and M162, the two
examples that he mentioned. They strike me as examples where people
have, over the life of those orders, perhaps not just grown accustomed
but, in some cases, have embraced the added flexibility that those
orders afford them.
What I think the minister has said during the course of the debate
here is that whilst there may be a brief continuation of those orders
beyond the expiration of the state of emergency…. If there is, that
would be an opportunity for, for example, a strata corporation to adjust
their bylaws to allow for a continuation of the kinds of meetings that
are now taking place.
But if they fail to do so during that window of opportunity, the
rules will revert back to what took place pre–state of emergency, unless
the government were to come along at some point in the future and make
the rules as they existed under the ministerial order a permanent
feature of the governing legislation. Is all of that a fair capsulation
of what I think the minister, the Attorney, said earlier?
Hon. D. Eby: The member is right. There are a number of measures that were put
in place around remote work or meetings, legacies of a positive nature
out of a horrible pandemic period, that many people do want to keep. The
Municipal Affairs bill that was just in front of the House is a good
example of that and an example of the process that will be followed.
Those measures will not become permanent through either CRMA or through
the EPA. In order for permanent changes to take place, they’ll come as
one would expect, through legislative amendment or regulatory amendment
through the regular course.
Those two orders that I mentioned are really good examples
of areas where there may be the possibility of long-term reform that
comes from our experience during the pandemic around remote execution of
powers of attorney, representation agreements or with respect to
electronic strata meetings. That work will happen through the regular
course of government.
[3:05 p.m.]
Specifically on the electronic strata meetings, the stratas will
be able to meet by electronic means up until the expiry date of the CRMA
provision without amending their bylaws. Following that, they’ll
have to make an amendment to their bylaws if they don’t already have a
provision allowing remote meetings. They’ll have to make an amendment to
their bylaws after that, in order to meet remotely through electronic
means.
M. de Jong: Back in July when the original act was debated and passed,
the Attorney — and I think this was reflective of perhaps a
broader concern — highlighted some of the orders that had existed and
listed 94, 120, 183 — all relating to providing targeted protections
from civil liability.
I guess I have two questions about that. One, to the Attorney’s
knowledge and the knowledge of the staff that are assisting him today,
are those protections that have been utilized in particular
circumstances? Have there been actual situations where that protection
has been brought to bear thus far? None of us can speculate as to
whether or not something might happen in the future, so I’m not asking
the minister to speculate about some future cause of action. Are there
any examples thus far?
Then, secondly, are those examples of orders that the Attorney
expects would expire with the state of emergency or would continue to
some point beyond the end of the state of emergency and December 31 of
2021?
[3:10 p.m.]
Hon. D. Eby: I think the member helps the debate by advising, in his
second reading speeches, areas of interest, which allows staff to do a
little bit of work so I can provide more complete answers. I’m grateful
to both the member and staff for that cooperative work to better inform
the public about the effect of legislation.
Staff were unable to find any reported decisions from British
Columbia. We’re not aware of any pleadings that cite the provision, in a
defence or otherwise. There’s one reported decision that staff were able
to find in Ontario, which was that a case management judge in a class
action proceeding noted that the protection needed it. Ontario has a
similar provision that noted that the provision in Ontario would need to
be taken into account in that class action that was under
way.
This is really consistent with how we intended these protections
to function, that they would be taken into account and that they would
not be showing up in actions, because someone would have a look and see
there was not a cause of action available for transmission of COVID,
except in particular circumstances.
The member is right. This is incorporated and becomes a statutory
instrument under
section 5 of CRMA, which means the expiry date would be
December 31. The intent here with the extension of these particular
provisions is obviously COVID will still be, we expect, in our
communities and still potentially transmitting.
That does not mean that on January 1 you could launch a lawsuit
against someone who gave you COVID a couple months ago. It is for causes
of action that would have arisen December 31 or before — are immune,
within the terms of the provision, from having someone make a claim
against you for it.
If there was an alleged transmission of COVID in mid-December, for
example, you could not sue for it on January 1. But if there was
transmission after December 31, when the protection ends, if government
hasn’t taken any other actions you could potentially sue for COVID
transmission after that. I say “if government hasn’t taken any action”
because we are currently looking at whether we should be
continuing this protection in place through a separate statutory
provision for post-December 31, but no decisions have been made yet
about that.
Clause 1 approved.
On clause 2.
T. Shypitka: Happy to speak on this part of the bill. It’s not a very big part,
mind you, but it’s an interesting one all the same. I don’t have a lot
of time, so I just want to maybe give a brief
summary of what I
understand on the direction government is going with this, and that is
through
schedule 1 and the amendment by striking out Burrard thermal.
It’s to my understanding that a list of heritage assets were placed in
protection from….
The Chair: Apologies, Member. Sorry, we’re not quite there yet. I think
you’re on
part 2, and we are on clause 2. We will get there shortly
if there are no further questions, but we’ll go through the other
clauses first and then get to the
section the member refers to. I’ll
make sure to alert you, Member, or ask the future Chairs
to.
Clause 2 approved.
On clause 3.
M. de Jong: Just a question on clause 3, the amendment to the original act. It
excludes
section 6 from repeal on December 31, 2021. Can the Attorney
just put on the record why is that is so.
[3:15 p.m.]
Hon. D. Eby: This was what the member and I were just canvassing in the
previous section. If a cause of action arose during the period that the
protection was in place, this
section 6 allows that protection to
continue indefinitely. What it does is say that for that period of time
that the protection was in place, you can’t show up in court and make a
claim in relation to that at a later date, even though December 31 has
come and gone. It’s in relation to the civil liability protection
section.
Clause 3 approved.
On clause 4.
M. de Jong: To begin, I just want to have a brief conversation with the
Attorney and the committee about this provision. I thought that the
appropriate place to start would be simply to ask him to describe for
the committee the practical effect that this change will have in the
context of the Family Law Act.
Hon. D. Eby: I’m joined now by Shannan Knutson — she’s legal counsel with the
family policy and legislation division — because this
section relates
to, as the member noted, the Family Law Act.
The amendments needed to clarify that an intention to harm a
family member is not an element of the definition of family violence.
When a court is looking at whether or not…. There are a number of
reasons why family violence might be a significant factor in a court’s
consideration — for example, some kind of a protection order. I could
provide specific examples if the member’s interested. It’s a required
element for various types of applications.
But in order to find family violence, the court, under this
amendment, does not need to consider what the intentions were of the
individual alleged to be involved in violence. The reason for this comes
from a Court of Appeal decision in 2020. The Court of Appeal read the
existing
section as requiring the court to determine that the individual
involved actually intended to harm a family member before finding that
emotional or psychological abuse constituted family violence for the
purposes of the act.
This amendment, because it’s in the definition section, will apply
to all forms of abuse that are captured within the definition of family
violence. If it were only to apply to emotional or psychological abuse,
there would be the potential for a court to incorrectly interpret that
an intention to harm a family member must be present to find another
form of family violence. Really, any form of violence would be captured
here.
This was the intent of the definition of family violence, and it
addresses concerns that the Court of Appeal’s decision would have
a chilling effect on applications for protection orders, determinations
of family violence in parenting matters, and then that could have a
knock-on effect of increasing risk of violence against women, children
or other vulnerable people. So responding to the court decision, part of
the dialogue that happens between courts and legislatures, and providing
clarity to the court about what the Legislature’s intention was
here.
[3:20 p.m.]
M. de Jong: As the Attorney has indicated, it’s a direct legislative response
to judicial
interpretation of the existing definition that was not in
keeping with what was the intention, or the perceived intention, of the
Legislature. That’s a question. I just want the Attorney to confirm that
the 2020 Court of Appeal decision was the direct impetus for the change
and, more practically, that the concern is that without the change, the
implications of that Court of Appeal decision could be to frustrate
those who are applying for protection orders in certain circumstances.
Are those both fair statements?
Hon. D. Eby: The member’s
summary is right. The impetus for this is the
Court of Appeal decision, and the goal is to address that potential
chilling effect on applications of various kinds under the Family Law
Act. Also, it’s just sort of the increasing recognition, both inside and
outside government, about the long-lasting impacts of family violence on
vulnerable people.
Government’s intention is to address violence. Because it
places an additional burden on those who are the alleged victims of the
violence to demonstrate the intent of the person alleged to be
committing the violence, that would be a step backwards from
where we really want to go. That is to really try to make it possible
for, and to support, victims of violence in coming forward to have
matters heard in front of the court if they are, in fact, the victims of
violence.
The intent of the person perpetrating the violence is not relevant
to the fact that that could cause very serious trauma, and that should
be responded to through the act.
M. de Jong: I’m going to ask the Attorney a couple of what-if questions or
scenario-based questions, because I think that’s the job we have. I hope
he will accept that none of this is done to, in any way, condone
violence — period — let alone in a family setting.
But it would appear the amendment here was necessitated by an
interpretation of the existing legislation by the courts that needed to
be addressed. It’s sort of our obligation to ensure that we don’t, in
dealing with that, create a different opportunity for an
interpretation
by the courts that this House and this committee would find troubling.
That, by way of
preamble.
[3:25 p.m.]
If one goes to the existing definition of “family violence” — and
it is obviously a defined term that we are amending with this
section —
it includes, in sub (d), a definition of psychological or emotional
abuse of a family member and lists the ways that that psychological
abuse can occur.
Relationships sometimes succeed and sometimes don’t. A party who
leaves a family, without the knowledge or consent of another party, may,
indeed, inflict psychological abuse on a family member. They may have no
intention of doing so. They may have concluded, for some very valid
reasons, that it is time or it is a requirement that they
leave.
Is the insertion of the words contained within this amendment,
contained in
section 4…? Is there a risk, in the Attorney’s mind, that
we are creating an opportunity for a finding of family violence in that
kind of a scenario? Or the Attorney General might say: “Well, that
opportunity exists now.”
I hope he understands my question. I have a couple of those
scenarios that I’d like to put to him in exploring the impact that the
insertion of these words may have, for all of the legitimate reasons
that they are being proposed for insertion into the
definition.
Hon. D. Eby: Under the existing definition of family violence, a
section that’s
not modified by the proposed amendment, subsection (
d) lists out
a number of examples of psychological or emotional abuse of a family
member that would constitute family violence.
Those examples are “(
i) intimidation, harassment, coercion or
threats, including threats respecting other persons, pets or property,
(ii) unreasonable restrictions on, or prevention of, a family
member’s financial or personal autonomy, (iii) stalking or
following of the family member, and (iv) intentional damage to property,
and (
e) in the case of a child, direct or indirect exposure to family
violence.”
This is not an exhaustive list. The member will note subsection
(
d) says that this is including these examples. It’s open to the court
to find other types of abuse would constitute family violence. We’re not
aware, on the staff side, of any case law that suggests that leaving a
relationship would constitute psychological or emotional abuse to the
level of meeting the definition of family violence.
[N. Letnick in the chair.]
It doesn’t mean that the court hasn’t determined that or couldn’t,
in some circumstance, although that would be extremely speculative and
hard to imagine that set of facts that would arise. But it is an open
category.
[3:30 p.m.]
The member is right to note that I was likely to say,
because I’m about to say, that the proposed amendment has
absolutely no impact on those categories of examples of types of
violence. The proposed amendment only speaks to the intent of the
individual and whether that needs to be determined or not.
M. de Jong: I presume the intention, again, as we discussed moments ago, was
to eliminate any doubt that may have existed around the need to
establish intent. That will now be more graphically included in the
definition of the act.
I have two other scenarios that occurred to me. I imagine the
Attorney’s response will not be dissimilar from what he has just shared
with the committee. But I suppose the next stage, the next potential
level, to the example I just give, would be the party to a relationship
who engaged in an extramarital affair. It’s not a stretch to suggest
that that may cause another party to be deemed psychologically damaging,
abusive.
Is it clear now, in that scenario, that that behaviour, where
there may not have been any direct intent in that regard — that
that is now captured by the definition of family violence?
Hon. D. Eby: This is very similar to the member’s last example. The subsections
of (
d) that outline examples of types of psychological or emotional
abuse of a family member…. None of them lend themselves to the
interpretation that an extramarital affair would qualify, so the court
would really need to find an additional subsection, essentially,
somehow, in the act related to infidelity, which, again, seems very
unlikely just on the plain language of the statute.
M. de Jong: The third scenario that I thought of, which moves beyond the
definition of psychological or emotional abuse…. I don’t think this is a
fanciful — well, I know it’s not fanciful — example. But it is the
family member who suffers from advanced dementia or Alzheimer’s and who
commits
an act or acts that they would never have dreamed of committing
when healthy, a violent act that they are incapable of forming any kind
of intent around…?
[3:35 p.m.]
Is that behaviour now explicitly captured by the definition of
family violence? Or is the Attorney’s response, “Well, it always has
been,” and there is no alteration here?
Hon. D. Eby: The amendment proposes to remove intent from the definition
of “family violence” in terms of when a court is asked through another
section of the statute to consider family violence as a factor. The
court could find that someone without the requisite ability to form the
intent, whether as a result of some disability or illness, had, in fact,
committed the physical acts described in one of the subsections and that
it meets the definition of family violence.
Once the court has
determined that that hurdle has been crossed, what the court does with
that in terms of fashioning an appropriate remedy based on what the
individual is showing up in court to ask for might be influenced by the
court’s consideration of capacity.
So whether a protection order would be an appropriate response in
a particular setting based on the finding of family violence, yes, but
within a set of circumstances, it would be a question of the court’s
discretion in fashioning an appropriate remedy.
I hope that that nuance communicates well to the member that the
court still has discretion in fashioning these remedies, but what we
don’t want is a situation where a person making the application is
stopped at the gate by a finding that, well, this can’t be family
violence because the person didn’t have the requisite intent. That’s
what we’re trying to address here.
M. de Jong: It is a sensitive area, to be sure, but this is the moment to at
least try to canvass some of these issues and how a court and a litigant
might deal with it, keeping in mind that under the act, of course,
applications can be brought on behalf of family members as
well.
I am merely wishing to explore with the Attorney whether
there is any concern that an incapacitated person — incapacitated not by
a drug or alcohol, necessarily, but incapacitated by health conditions
like dementia, which has become so prevalent in our society, the
by-product of living longer — would be targeted in an application by
someone, by allegations of family violence, which carries with it all of
the stigma that it should but in the case of a person who no longer
possesses the capacity to form an intent or to even govern themselves by
the norms of society and the norms of the law that we expect.
[3:40 p.m.]
I don’t dispute the Attorney’s explanation that the courts still
possess discretionary authority to render decisions, taking those facts
into account. But the explicit nature of the definition that this
amendment will create — it seems to me that we must acknowledge — will
expose people in that diminished capacity to findings, to allegations
and to findings that they have committed family violence in ways that,
of course, they never would, were they healthy, were they not the victim
of dementia or Alzheimer’s.
That’s my point. I’m not here to necessarily rewrite the
legislation. I am, though, asking the Attorney whether he and his able
team of drafters have turned their mind to that possibility and the
impact that could have on an individual during fleeting moments of
lucidity, when they might become alive to the fact that they are on the
receiving end of allegations that they have committed family violence
within the meaning of the Family Law Act.
Hon. D. Eby: A couple of things come to mind in my discussion with staff. The
first is sort of accepting the member’s example on its face and
just saying: “Here is a risk where you’re going to put a label on
someone who committed family violence on somebody.” We should take into
account the harm that that could occasion — it is an important
consideration for us in this place — and weigh it against the person
against whom these acts have been occasioned and their need for
protection, their need to show up to court and demonstrate that this has
happened to them and to seek the protection of the court under the
Family Law Act.
[3:45 p.m.]
The prejudice to the individual and their reputation pre-illness
or pre–lack of capacity or that only comes about because of their lack
of capacity, on a weighting against the need to protect the victim of
this violence…. I think we both accept that the acts would be meeting
the definition of violence. Our policy decision is to say our goal is to
protect the victim of violence, even at the risk that this person may
not have intended to engage in family violence due to a lack of
capacity, because the goal of the act is to protect the individual from
the violence.
The second is, beyond that policy decision, the likelihood
of different scenarios. The likelihood of an individual with reduced
capacity — that the Family Law Act would be the mechanism by which a
relative or family member would be seeking protection from a family
member that, because of a debilitating illness or other disability, had
acted out in a violent way…. The likelihood of them pursuing remedies
through the Family Law Act and that individual being labeled essentially
as someone who engaged in family violence despite the capacity issue is
relatively low.
The odds of somebody thinking about going to court to seek a
protection order, going to a lawyer and saying, “Listen, this person I’m
in a relationship with is restricting my ability to access my own
financial resources, is threatening me, is engaging in this kind of
activity of following me around or tracking me on my phone,” or
whatever, and the lawyer is saying: “Listen, there’s this court of
appeal decision. We need to prove that this person you’re in a
relationship with actually intends to harm you by this behaviour in
order for it to be considered family violence now.” That, to me, seems
like a far more likely scenario and one that acts as a barrier to
someone being able to access remedies under the Family Law
Act.
In terms of relative harms and risks of this amendment, in the
absence of this amendment: a very significant risk that people who need
to access the protections of the act will not be able to do so because
of the difficulty in proving intent, and the risk that someone of
reduced capacity would then be pulled into the Family Law Act —
relatively low, although I’ll acknowledge that this scenario could
happen. But even in that situation, our desire would be to protect the
person who is the victim of violence, even if it meant an unfortunate
connotation about that person that didn’t have the capacity to
appreciate their own actions because of Alzheimer’s, in the member’s
example.
In either one of those policy considerations, it brings us here to
the Legislature to amend the act to remove the intent, because our
intent is to protect the victim of violence and to give them the
remedies available in the act, even if they can’t prove intention of the
individual engaging in the violence.
M. de Jong: I’ll merely thank the Attorney General for his responses on
section 4 and, by way of warning to those who are tracking and
participating proceedings from elsewhere, indicate that following the
passage of
section 4, I will invite the Committee to pass sections 5
through 8.
Clauses 4 to 8 inclusive approved.
On clause 9.
T. Shypitka: We’ll try this again. Awesome. Thank you to the minister for
allowing me some time here today to talk to
part 2….
The Chair: Sorry, Kootenay East. One moment please.
Attorney General.
Hon. D. Eby: My apologies to the member for Kootenay East. This is an ill-fated
question he’s trying to ask.
I believe there will be a change of staff and possibly a minister
here, so if we could just have a couple of minutes. This is the Minister
for Energy and Mines, this section. Just let me confirm that.
The Chair: We’ll take a five-minute recess.
The committee recessed from 3:49 p.m. to 3:55 p.m.
[N. Letnick in the chair.]
The Chair: I am thinking that maybe Kootenay East might want to say a few
words. Go ahead, Kootenay East, please.
T. Shypitka: Thank you, Chair. Three times the charm.
Thank you to the minister and staff for offering me the time on
this small part of Bill 11,
part 2, which speaks to the Clean Energy
Act, particularly
schedule 1 — amending by striking out, I guess,
Burrard thermal. It’s a very small part of the bill, but it’s of a lot
of interest to me and, I think, a lot of other people. I don’t have a
lot of time, so I’m just going to do a little brief
summary if I can,
and the minister can agree. I’ll ask a question, just in the
consideration of time here.
In
schedule 1, there’s a list of heritage assets that were placed
in protection from disposition when the Clean Energy Act came out in
2010. I believe the rationale was to keep these assets to ensure our
province’s electricity self-sufficiency. It’s also my understanding that
Burrard thermal continues to provide voltage support and stability for
B.C. Hydro’s transmission and distribution of electricity in the Lower
Mainland. This comes in the form of high-demand or peak times of
electricity use.
I guess the first question to the minister is: do I have this
right? Does Burrard thermal still provide this support? Would the role
that Burrard thermal plays right now not be considered as high-demand or
emergency support?
Hon. B. Ralston: Burrard thermal has been decommissioned and no longer is capable
of generating electricity. It does provide what’s called voltage
support, although that function is reaching what Hydro regards as its
end of life. Hydro is currently considering a number of other options to
ensure that its transmission system will operate safely and
reliably.
T. Shypitka: Thank you to the minister for that. Yes, I was aware that in 2016,
it was decommissioned for electricity generation. As the minister
indicated, it does still provide that voltage support.
The question was: does the minister consider this voltage support right now? I
realize it’s coming to end of life, but it still does provide that
service. Does the minister consider that to be a high-demand type of
service as well as emergency support?
[4:00 p.m.]
Hon. B. Ralston: I’m advised that the voltage support is designed to stabilize the
system during peak demand and low demand, but it doesn’t really provide
any emergency support. I think that the member may be referring to the
previous capacity that has now been decommissioned of generating
electricity. It no longer does that. It’s more a stabilization role for
the system at large.
T. Shypitka: Thank you to the minister. So it provides stability to the grid.
Without that support, what situation would we be in without that
stability support? I mean, it’s there for a reason. It’s doing a job of
some sort. What I’m getting at is if that was removed immediately, where
would we find the capacity? Where would we find that additional support
to back the system up during high demands or low demands, as you
said?
Hon. B. Ralston: B.C. Hydro is evaluating the function this site serves. No
decision has been made. It wouldn’t be ended immediately. If it were to
stay on this site, it would require investment, or it could be moved to
another one of the substations in the Lower Mainland to perform the same
function. So there need be no concern that it would end abruptly. The
function would continue either on this site with further investment or
at another substation in the Lower Mainland to perform the same
function.
[4:05 p.m.]
T. Shypitka: Thank you, Minister.
Does the minister know what type of capacity is necessary to
replace the functionality of what Burrard thermal does right
now?
Hon. B. Ralston: What the voltage support enhancement or renewal would involve
would be placing equipment either in the present location or in another
location. But there is no…. If the question is how much it is going to
cost, they haven’t reached the point in the process where they’re able
to provide a costing.
T. Shypitka: The question wasn’t about cost. It was about what type of capacity
is needed to replace what Burrard thermal supplies right now. The
minister mentioned it could be easily…. It wouldn’t be immediate, but
then, eventually, it could be relocated from a substation in the Lower
Mainland somewhere.
I guess the question would be: what is the capacity that’s
necessary from the substation to supply the voltage support that is
necessary for what Burrard thermal is doing right now? The second
question to that would be: where would the generating power come from?
It’s coming from a substation, but where would the generating power come
from?
Hon. B. Ralston: Now, I’m told that there isn’t any generation capacity involved in
this. The voltage support is really to support the transmission system,
and that’s what the equipment does. So it can either perform that
function at this site in the future, or the decision might be to move it
to another substation in the Lower Mainland.
T. Shypitka: Speaking of that, there have been rumours that this site will be….
Obviously, it’s going to be disposed of. That’s why it’s taking it out
of the heritage assets.
I guess the question is…. It’s a public asset owned by the
taxpayers, and constituents and people in British Columbia would like to
see some transparency around disposition of this asset.
Can the minister confirm the transparency of the sale, the price,
if there’s any government financing to whoever purchases it, tax breaks
to whom it’s sold, conditions, intended use — those types of
things?
[4:10 p.m.]
Hon. B. Ralston: The process is just beginning. I think it’s not correct to assume
that it would be a sale. This legislation is required because Hydro can
neither lease nor sell this property so long as it’s on that list. So
we’re at the very beginning of the process, and this is a very public
step, obviously, by changing the legislation.
The next step will be to consult with Indigenous Nations.
Some have been consulted with already. They’ve indicated no concerns
with those amendments. But once, and if, this legislation passes, Hydro
will be notifying and engaging with Musqueam, Squamish, Tsleil-Waututh
and other nations to explore their interests in the Burrard site. So
we’re at the very beginning of what I would expect would be a long and
fully engaged public process.
T. Shypitka: Thanks for that, Minister. But obviously, there’s some intent.
There’s intent when we go through this amendment to strike Burrard
thermal from the protected list of heritage assets. There’s an intent,
obviously, to dispose of the asset. There would be no rationale
otherwise to go through this process.
So let’s talk about these early beginnings, as the minister said.
I heard the Attorney General in second reading saying that there was
some consultation with First Nations. I heard the minister just now
saying they’re starting to, yet we’re disposing of this asset that is
protected under the Clean Energy Act.
Maybe the minister can enlighten me on what negotiations have
happened with which nations. And are we not putting the cart in front of
the horse here? Why would we not fully disclose to First Nations in
British Columbia on the sale or the disposition of a public
asset?
Hon. B. Ralston: The member is wrong to characterize what has taken place so far as
negotiations. No negotiations have taken place. What has taken
place is consultation, which is required legally, and that’s a
commitment of the government.
But there is interest in this site. There’s no doubt about it. It
has industrial zoning. It has connection to energy infrastructure,
proximity to tidewater. There are a number of inquiries, particularly
for clean technology developments. So there is interest in the site, but
there are no negotiations that have been initiated. It is, again, at a
very preliminary stage.
The Chair: Minister, in the interest of order, if you could wait until
you’re recognized, it would be appreciated. Maybe wave or do
something so I know you wish to speak, and then I’ll be very happy
to recognize you.
Hon. B. Ralston: I apologize. This is a very awkward process, as you well
know.
The Chair: Yes, I agree. Wave to me, and it will make it
simpler.
Kootenay East, please.
T. Shypitka: Thank you, Chair. To the minister, I’m assuming — I’m not stating
a fact — that there are negotiations going on, on a sale right now. But
I’m assuming that when the government goes through a process to strike a
public asset from a protected list on the heritage assets list,
that….
[4:15 p.m.]
As the minister said, it’s a very attractive site. It would do a
lot of great things for a lot of people, and I look forward to what can
come from this.
My question was on consultation with First Nations. Before you
take this out — that’s what this bill represents — wouldn’t it be
prudent for the ministry to consult First Nations on the intent of what
it means to take a public asset out of the public trust?
Hon. B. Ralston: As I said earlier, ministry staff have met and consulted with the
Musqueam, Squamish and Tsleil-Waututh Nations. They have indicated no
concerns with the proposed amendments. The ministry sent letters of
notification to the Kwikwetlem First Nation and several Stó:lō Nation
members, including Seabird Island, Shxw’ow’hamel, Skawahlook, Soowahlie,
Stó:lō Nation and the Stó:lō Tribal Council to ensure that they are
aware of the proposed amendments and inviting comments or
feedback.
Once, and if, this legislation passes, then those nations will be
engaged to explore their interests in the site. During that engagement,
B.C. Hydro will share its preliminary thinking on the process for
exploring potential future uses of the site, given its unique
characteristics. This would involve consideration of principles, format
and timing. That would be initiating a separate process that would — as
the member might expect — be likely to take some time.
It’s not clear, at this point, what the level of interest, if any,
is, but that’s why that outreach would take place. But as I’ve said now,
twice, the preliminary steps have been taken, and there’s no opposition
to the proposed amendment.
T. Shypitka: I’m just trying to rephrase my thinking here, but I’ll go to an
easier question. If a sale is done or leased, what will the proceeds of
the sale be used for? Where will that money go? Is it going to stay with
B.C. Hydro? Does it go back to general revenue? What is the intent when
the funds are exchanged?
Hon. B. Ralston: The proceeds of a sale, if there were to be one — or if there were
to be a lease, the lease payments — would go to B.C. Hydro.
T. Shypitka: Okay. Thank you, Minister, for that.
Taking this heritage asset out of the protected list — I think
there are about 35 or 36 of them of them in the province — what does
that mean for electricity self-sufficiency in our province? Does it
jeopardize emergency provisions, if needed, for failing electrical
systems in the future?
[4:20 p.m.]
The Chair: Seeing as the minister is not yet in the waiting room, we will
recess until 25 after four.
The committee recessed from 4:21 p.m. to 4:25 p.m.
[N. Letnick in the chair.]
Hon. B. Ralston: The member’s question was: what is the impact of this proposed
legislative amendment on the energy self-sufficiency of the province?
The answer is none. Burrard thermal is not a generating
facility.
T. Shypitka: Yes, I understand it’s not generating anything right now. I just
look at the list of assets that B.C. Hydro right now has, and the fact
that these assets were protected under Clean Energy B.C. for the purpose
of electricity self-sufficiency, and I wonder where it ends. I wonder if
amendments like this will become the norm if B.C. Hydro needs the cash
or if government needs the cash, essentially setting up a virtual ATM
system. Self-sufficiency, which was mandated as a fairly important
thing…. Maybe the minister doesn’t agree.
I guess the question to the minister is: does the minister believe
that energy or electricity self-sufficiency should be a priority for
British Columbia?
Hon. B. Ralston: This is a very precise proposed amendment. It’s removing
one asset from the list. There are no plans at all, despite the member’s
attempt to conjure up some kind of impending tsunami. Even if that were
the case, each one of the assets that was proposed to be removed would
have to come forward in this same process, to the Legislature, for a
full debate on an amendment. There is no plan other than to deal with
this one, assuming that it passes.
T. Shypitka: The question was: does the minister have a priority in mind on
keeping electricity self-sufficiency intact in British Columbia?
That is the reason why these heritage assets were on a protected list to
begin with. We’re seeing one leave now. Nothing really to see here, I
guess, other than the fact that it could go towards a really great
project.
I encourage it, and I’d like to see what comes of it.
However, it’s a stroke of a pen, and it’s bringing an amendment
forward with a majority government, that others could fall. My question
to the minister, which he didn’t answer, was: does he see the need or
the priority for B.C. to have electricity self-sufficiency?
Hon. B. Ralston: I believe I’ve made it clear that the removal of this asset from
the list will not have an impact on the self-sufficiency of the British
Columbia grid whatsoever.
[4:30 p.m.]
It is not a generating facility. It is no longer capable of
generating electricity. It’s confined to a single amendment from the
list, a single striking of one facility from the list. As the member
rightly knows, this site has huge potential, and there’s a lot of
interest in it, both from Indigenous Nations and from many others in the
clean technology sector particularly.
I know that the city of Port Moody is interested, because when
Burrard thermal was decommissioned, they lost the tax revenue. It was, I
think, 2 or 3 percent of their total tax revenue as a city when it was
decommissioned. So they are interested to see a new development on this
site, and it’s a site with huge potential for advancing the economy of
British Columbia and the prosperity of British Columbia. So that’s what
we’re endeavouring to do here, and it really has no impact on the
question that the member raises.
T. Shypitka: Well, the question was whether the minister embraced the policy in
the Clean Energy Act on keeping or maintaining British Columbia’s
electricity self-sufficient. That was the question.
[S. Chandra Herbert in the chair.]
I understand that the Burrard thermal generating plant was
decommissioned in 2016. It’s not having a purposeful life right now, so
I can see it moving on to better pastures. I’ll ask about those in a
second.
The question to the minister was: does he embrace the Clean Energy
Act and keeping British Columbia energy, or electricity,
self-sufficient?
Hon. B. Ralston: Well, with respect to the member….
The Chair: Minister.
Hon. B. Ralston: Thank you.
With respect to the member, that’s not a question this amendment
engages. I mean, what we’re talking about are the possible alternate
uses of this site. B.C. Hydro has received inquiries from many companies
about the use of the site, including data centres, power generation, LNG
terminals, hydrogen developments, carbon sequestration projects.
It’s got waterfront access, industrial zoning, potential access of up to
300 megawatts of clean, reliable and affordable energy from the system.
So it has huge economic potential. That’s what motivates me in bringing
this amendment forward, and that’s what I’m looking forward
to.
T. Shypitka: Well, seeing, I guess, as the minister won’t answer whether he
believes B.C. should be electricity self-sufficient…. The reason why I
ask it is because it is in a list of protected assets that were set up
to keep B.C. energy self-sufficient. If we sold all these assets off,
then we will lose that self-sufficiency. That’s why I asked the
question, and the minister won’t answer it.
I think it’s appropriate for what this amendment means, but let’s
talk about some of those projects he was talking about. I’m excited as
much as the minister is. We could have some great First Nation projects.
We could have…. The minister mentioned hydrogen projects, some other
energy projects.
Does the minister see this disposition of this asset going to
another energy-producing project?
Hon. B. Ralston: I think it’s early days.
The Chair: Minister.
Hon. B. Ralston: Pardon me. Sorry.
The Chair: Please proceed, Minister.
Hon. B. Ralston: Thank you. I apologize, Chair.
The potential is there. No decisions have been made. I think the
potential for clean energy at this site, for all the reasons that I’ve
already given, is excellent. I know the MLA from Port Moody has
expressed his support for that. I know that the city of Port Moody is
interested in developing industrial land within the municipality in a
way that would contribute to the electrification and the decarbonization
of British Columbia’s economy.
[4:35 p.m.]
It’s an ideal site for many potential uses, and indeed, there may
be multiple uses, given the size of the site. So that’s the vision.
We’re at the very, very beginning of the process. This is about a first,
very small step in that direction.
T. Shypitka: I agree with the minister. I think it sets up all kinds of
potentials, lots of energy-producing potentials, for sure. Since it
won’t be in B.C. Hydro’s hands anymore or government’s hands anymore, I
would assume that these power producers would be independent. Would that
be correct?
Hon. B. Ralston: Well, there is a lot of potential. There have been a lot of
inquiries, but nothing has been determined. I can’t really say, with any
degree of precision, whether they would be independent. I’m not quite
sure what the member means by that. But what entities might come forward
and be successful in a process that will be a long public process is not
at all clear or predetermined at this point.
T. Shypitka: To the minister’s point, I’ve seen the member from Port Moody’s
comments on what this site could represent. The minister has mentioned a
litany of different examples of what this project or this site could
represent, all energy-producing. I think there were some other ones that
were not. I think there was something to do with salmon. I’m not sure
exactly what it was.
But most of them, 95 percent of the ones I’ve heard, are
energy-producing projects, which makes sense, because a lot of the
infrastructure is there already. My question — that the minister wasn’t
understanding, maybe, and maybe I didn’t phrase it right — is that
because B.C. Hydro won’t be involved because we’re releasing it from
their assets, disposing it from their assets, it would more than likely
be an independent producer of power.
I wonder on that, because we have said, time and time again, that
B.C. Hydro has eliminated the standing offer program for independent
power producers. Would that not be a contradiction, bringing in a
large-scale independent power producer for this site?
Hon. B. Ralston: Well, at the present, B.C. Hydro is working on the IRP, the
long-term plan for energy acquisition and development in the province.
It’s a 20-year plan that’s being worked on at this point. For a long
time in the future, B.C. Hydro will have a surplus of energy, and that’s
the process that we’re engaged in.
[4:40 p.m.]
What this is dealing with is a site with access to megawatts for a
variety of purposes. It has a number of really excellent attributes that
have a number of companies and entities interested in the potential that
might be developed on this site, along with support from the city of
Port Moody and, generally, the clean tech sector, of which British
Columbia is a leader. British Columbia regularly has a number of
companies in the global top 100 clean technology companies.
As the member has already agreed, there is huge potential for this
site. That’s what we’re focused on. For me to commit or say that a
certain type of company, other than a very broad category, is destined
to be on this site is premature, at the very least.
T. Shypitka: Yes, Minister. Once again, I agree that there is a huge potential.
Where I get stuck is that we have been holding independent power
producers back for the last three years or so on trying to tie into the
grid because of the surplus energy. Here we go with a project that if
disposed of, if this asset is sold off, could represent a huge power
producer.
I think Burrard thermal generated, I believe, about 950 megawatts,
which is pretty close to what Site C represents at 1,100. Burrard
thermal has the infrastructure to be a very large power producer to
someone. Where I get stuck, like I said, is that we’ve been denying
folks for a while on independent power-producing contracts, and here we
go with something like this.
I guess just a final question then. Will there be transparency on
the sale — who bought it, how much it was, what’s the intended use? I
think I had a couple of other lists here, but I can write them down for
you.
Can we expect transparency from government on the proceeds of the
sale in its entirety?
Hon. B. Ralston: It is not necessarily a sale, as I have attempted to repeatedly
say. It could well be a long-term lease or a sale, but neither
alternative has been decided upon.
It will be a transparent process. I can guarantee that the
interest of the surrounding communities, particularly Port Moody, will
be intense and there will be public interest in a project of this scale
in this location. It’s certainly the intention of B.C. Hydro to be
transparent in the steps that are taken, should this piece of
legislation pass.
[4:45 p.m.]
T. Shypitka: Does Burrard thermal provide port security — to secure power for
port security?
Hon. B. Ralston: Sorry, I needed to check with staff on a question. No. It doesn’t
provide power for port security.
T. Shypitka: Last question. The minister kind of alluded to it earlier, but
right now Port Moody receives grants in lieu of taxes, I believe, as
well as the loss of school taxes on the property, which are remitted
back to the province. This is about…. I believe it’s $300,000 a year,
somewhere around there. I think the grants in lieu of taxes are around
$290,000. What will happen with that if this is sold off?
Hon. B. Ralston: When the generating facility was in existence, Port Moody received
$1.3 million of grants in lieu of taxes, and they lost that when the
facility was shut down. Buildings and other properties, or other assets
on the properties, generate, as the member has said, some taxes. We
don’t see any change in that in the short term at all.
Clauses 9 to 12 inclusive approved.
On clause 13.
M. Morris: Just a couple of questions on the process and some of the work
that is being done around this. Does government know how many persons
who have been issued COVID fines and fines under the emergency measures
act currently have a driver’s licence in British Columbia?
Hon. M. Farnworth: No, we don’t have the exact number in terms of how many people
that have been issued tickets have drivers’ licences or do not
have drivers’ licences. But I think it would be fair to say that it
would probably be representative, very much, of the overall population
in British Columbia, and that the vast majority of people in this
province do have a driver’s licence.
M. Morris: So what is the method of collecting fines from non-B.C. drivers,
or people in British Columbia who don’t have drivers’
licences?
[4:50 p.m.]
Hon. M. Farnworth: It would be the collection agency process, which is the process
that we already have in place.
M. Morris: That leads to my last question here. Has the government done a
cost-benefit analysis of whether it should be left in the hands of the
bailiffs or the debt collection agencies or given to ICBC here? Is there
a cost that is…? Does ICBC charge a percentage of their cost for
collecting these fines?
Hon. M. Farnworth: As the member knows, there already is infrastructure in
place. But the additional cost for this is about $58,000. The total
number of fines significantly exceeds that.
Clause 13 approved.
Title approved.
Hon. M. Farnworth: I move the committee rise and report the bill complete without
amendment.
Motion approved.
The committee rose at 4:51 p.m.
The House resumed; Mr. Speaker in the chair.
Report and
Third Reading of Bills
BILL 11 — MISCELLANEOUS STATUTES
AMENDMENT ACT,
Bill 11, Miscellaneous Statutes Amendment Act, 2021, reported
complete without amendment, read a third time and passed.
[4:55 p.m.]
Hon. M. Farnworth: I call continued second reading debate, Bill 7.
[S. Chandra Herbert in the chair.]
Second Reading of Bills
BILL 7 — ELECTORAL BOUNDARIES
COMMISSION AMENDMENT ACT, 2021
(continued)
I. Paton: I got started yesterday afternoon speaking to Bill 7, and I’ll
just backtrack a little bit to talk about once again my role as
Agriculture critic, and how I’ve had the opportunity to travel
throughout B.C. to just really understand the vastness and the
differences between not only geography but the people and what people do
in this province for a living and why it’s so fundamentally important
that a pillar of our democracy is representation and why everyone in
this province needs to be equally represented no matter where you happen
to live.
Why are we all here, in the first place? It’s because the
constituents in our ridings need a voice. They elected each and every
one of us on the understanding that their needs would be heard and
brought forward to government. Now this legislation before us has some
implications for that representation. We know that after every second
election, the Electoral Boundaries Commission is appointed to look at
the current boundaries of our ridings and possibly make some changes to
keep up with B.C.’s demographics as they shift.
This bill in particular aims to remove protections to the regions
of Cariboo-Thompson, Columbia-Kootenay and the north, which have a lower
population than most urban areas like communities on the Lower Mainland,
yet are vast geographic regions with unique challenges.
Some of the important points of Bill 7 that we are speaking in
opposition to…. While the appointing of this commission is routine, the
changes proposed in the legislation before us are not, as it seeks to
remove protections that have been put in place to ensure that rural
British Columbia is represented in our Legislature. Specifically, this
bill seeks to remove statutory protections to three regions: the
Cariboo-Thompson, the Columbia-Kootenay and the north.
These regions have been protected because while they have a lower
population than the densely populated Lower Mainland, they are
vast geographic regions full of diverse people who deserve to be fairly
represented in Victoria. This is why the Electoral Boundaries Commission
itself has said that effective representation is not simply anchored to
the equality of population. A 2015 report says the “factors like
geography, community history, community interests and minority
representation should be taken into account” when deciding how to draw
electoral boundaries.
Additionally, we must consider that a large percentage of First
Nations communities in B.C. are located in the regions that are set to
have statutory protections removed. Around 30 percent of First Nations
in British Columbia live in the north and the Cariboo-Thompson regions,
some in incredibly remote locations, and we need to ensure that they
also have equal access to the representation they are entitled to under
the law.
Why does a member for Delta South even care? Why does a guy who
could drive from one end of his riding to another in no time care about
a bill that could drastically alter rural ridings and not his own? Well,
I’ve been taught in my short period of time in provincial politics that
all of British Columbia matters.
[5:00 p.m.]
Opportunities for all of British Columbia. I’ve spoken about this
in the past. I’ve spoken about how we often seem to think we live in
this perfect bubble in the Fraser Valley or in the capital city region
of Vancouver Island. We have all of the benefits of theatres and
professional sports and the best of restaurants and all of these great
things.
We may think of our holidays as a trip to Hawaii or Mexico or Palm
Springs or going on a cruise, but there are people all over this
province that love where they live because life is different for them.
They don’t have access to some of the things we have here, but their
enjoyment is different.
Their enjoyment may be the outdoors. It may be the best fishing
spot they have. It may be hunting. It may be snowmobiling, cross-country
skiing, all the things you do in remote parts of rural B.C. that are so
important to people. They are every bit as important to this province as
we are living down in the populated area, which represents about 3
percent of the geography of this province down here in the Fraser
Valley.
It’s so important to me. People in all parts of this
province have different ways of life. They even wear different
clothes, like yesterday. We have cowboys that wear the western hats and
the jeans and the boots. This is what they wear every day. This is their
lifestyle. People in the forestry industry in all parts of B.C. that
have a different job….
We have to respect everyone in all corners of this province
that may not be doctors or lawyers or accountants or do the things that
a lot of people do down here on the coast. These are people in the
forestry industry, every day, that get up and drive trucks, that operate
excavators, that do welding, that build pipelines for oil and gas, that
help to build LNG plants, that work at Rio Tinto in Kitimat, that are in
the fishing industry, that are in the mining industry.
There are just so many important things to the resource
development of this province and people living in all corners of
this province. Whether you’re in forestry or mining, you’re a welder,
you drive a truck, you drive an excavator or you’re a farmer in Creston
or Fort St. John or Dawson Creek, everybody is important in this
province.
We should not only care about what any piece of legislation means
for our own constituents but for others around the province as well, as
I have just noted. I know how important my constituents and their issues
are to me. It’s no different for my rural colleagues who already have to
work a lot harder, in some cases, to reach some of the people they
represent.
I think of my colleague in Fraser-Nicola, whose riding is
incredibly large and incredibly diverse. It’s comprised of several
communities, including Clinton, Ashcroft, Cache Creek, Lytton, Logan
Lake, Merritt and Hope, and even smaller ones like Gold Bridge and Big
Bar Creek. With that many communities, you can imagine the work that
goes into maintaining relationships with local governments, First
Nations, school districts and, most importantly, the constituents that
the member represents, who come to her with a wide variety of concerns.
Her ability to connect with her diverse constituents, who have diverse
needs, is necessary to an effective democracy.
A bill like this essentially says the only thing that matters is
that each electoral district has the same number of people living in it.
That’s where the concern lies.
Our current boundaries in more rural parts of the province
recognize the unique attributes of these areas. They reflect the reality
that while their population may be lower than what we see in more
densely populated areas, it’s pretty much impossible for all those
constituents to be represented properly if these ridings were to be made
bigger. It makes me reflect on the way I serve my constituents in an
urban riding, and more broadly, it’s why it’s so important for people to
have reasonable access to their provincial representative.
In my recent travels to Fort St. John to talk to farmers up there
about the canola industry, wheat and grass seed, raising buffalo and
beef cattle, something that I noticed…. I have been to Fort St. John
before but in the middle of winter. Nobody drives a car in Fort St.
John. Everybody has a big pickup truck. You have to have that to get
around on the roads in the climate and the weather conditions up in the
north part of B.C. People are used to driving long distances now to get
to where they have to get to, to do business.
[5:05 p.m.]
It’s long enough now as it is for someone to get from Fort Nelson
down to Fort St. John to meet with their MLA. We certainly do not need
to add more distance by combining ridings in the north. The last thing
we want to do is to add to the fact that already people are driving 2½
or three hours to meet with their MLA in Dawson Creek or Fort St. John.
The last thing we need to do is to add a trip where people might have to
drive as much as six or eight hours to get from where they live to get
to an in-person meeting with their MLA in the north or in parts of the
Kootenays.
I want to share at this time an experience I had with one of my
own constituents earlier this year. A 65-year-old gentleman in my
community of Ladner was facing eviction from a B.C. Housing unit just
down the street from my constituency office. The reason given for his
eviction was said to be a pattern of uncleanliness within the
unit.
For some background, this gentleman suffered a massive
stroke about 15 years ago and continues to experience cognitive
disabilities. To mitigate his high blood pressure, he would walk around
Ladner daily and would frequent several local coffee shops to read the
Province newspaper from front to back. His calm demeanour
and friendliness earned him several friends within the community,
several of whom came to my office expressing concern over his
eviction.
In January, his belongings were removed from his unit and were
stored in a locker in New Westminster, and he suddenly had nowhere to
go. At 65 years old, he found himself homeless for the first time in his
life. Each day he would come to my office looking for help. My staff and
I worked immediately to find him housing.
In the interim, he would take refuge from the snow, the strong
winds and cold temperatures this winter at the Ladner United Church,
which is just right across the street from my office, in their extreme
weather shelter. The shelter would open at nine each evening and have
people vacated by seven o’clock the next morning. With the COVID-19
public health orders, they were restricting indoor seating. He often
found himself walking in the cold weather, trying to find a place where
he could warm up, even for a few minutes.
I took it upon myself to befriend this gentleman. I could see that
every night he was sleeping on a one-inch little foam mattress on the
floor of the United Church, and they were only letting about five or six
people in each night. He couldn’t even get in till nine o’clock at
night. So he had to kill time somewhere, walking about Ladner until nine
o’clock at night.
I took it upon myself, as a local MLA, to get him into a local
motel for a few nights. I helped to pay some of the fee myself. I went
to Costco and bought him just some cheap jeans and some socks and
underwear and a few things to get him cleaned up and get him into some
clothes, as his hadn’t been washed for a great deal of time.
It was very rewarding for me to carry this through with the
fantastic people I have working for me in my office, as my staff and I
worked tirelessly to find him permanent housing through affordable
housing societies. After several weeks we were able to find him
temporary shelter at an even better shelter across the river, in the
Ironwood part of Steveston, at the Salvation Army’s Richmond shelter,
just across the river in Richmond.
After a month of walking outdoors in poor weather and sleeping on
a mat in the extreme weather shelter, the prospect of having a place to
go every night, where he could sleep on a bed that was off the ground,
use a washing machine and dryer to clean his clothes and sit in a
dining hall where he could enjoy hot meals three times per day, meant
the world to him when we got him into the better shelter by the
Salvation Army, across the river in Richmond. It was shortly into his
stay at the shelter in Richmond that my office was able to secure
permanent housing for this gentleman in North Delta, and he moved into a
new B.C. Housing unit in early April.
I want to thank so much my CAs, Michelle and Taylor, for the work
they did with a couple of local social workers. It was such a success
that we got him into his own apartment, with some help to monitor his
daily living habits, up in North Delta.
It is cases like these that make me proud to be an MLA in Delta
South, knowing that my office can make a difference in people’s lives.
Without my office being located down the street from his home, who knows
where he would have sought help from? Perhaps he would still be homeless
to this day if it wasn’t for the fact that I was there and handy and he
was able to come and knock on my door and get help from his local
MLA.
[5:10 p.m.]
Imagine the same situation in a region like the Cariboo-Thompson,
Columbia-Kootenay or the north if boundaries were changed, some ridings
were removed and others were made substantially bigger as a result.
Imagine the tremendous distance between a vulnerable constituent like
this fellow and the MLA he desperately needed help from.
It may just be too large an obstacle for him to overcome. He
doesn’t have many belongings. He may not have regular access to a phone.
He has scarce funds. He couldn’t just hop on a bus to get to a
constituency office hours and hours away if he was in a huge new riding
in the north or in the Columbia-Kootenay or in the
Cariboo-Thompson.
As I mentioned, the gentleman we helped had some medical
considerations. He needs a helper to meet with him where he is. I can’t
imagine how he would get that help under the proposal before us. So I
think it’s important that we take these factors into consideration when
we talk about potential changes to electoral boundaries.
We cannot forget about the rest of B.C. We’re often just so
focused about what we do down here in Metro Vancouver or on Vancouver
Island, where, as I said earlier, we just have so many opportunities, so
many great things. But we just cannot discount the people that live in
places such as Fort Nelson and Atlin and Dawson Creek and Trail and the
Kootenays. I mean, the list goes on and on and on.
Those people are real people that are doing real jobs. We want to
promote people to get out of the housing craziness that we have here in
Metro Vancouver, and let’s start getting people into some areas of B.C.
where they have a chance to get a decent job in resource development or
in agriculture or in forestry and get people moving, as young people, to
some of these smaller rural towns to seek out a new and exciting and
better life.
We need to step outside of our own circumstances and think about
those who don’t have the same resources and abilities that others do. We
need to ensure that everyone in B.C. has reasonable access to their
provincial representative and not make it any harder for them to get
assistance that they need. I certainly hope that the independent
commission of three will consider the needs of all British Columbians,
not just those of the 3 percent geographical area that most of us live
in down here in Metro Vancouver and the capital city.
Thank you for your time, Mr. Speaker.
Deputy Speaker: Recognizing the member for Peace River South.
[Applause.]
M. Bernier: Thank you, Chair.
Well, thank you to the government members for
applauding me.
Deputy Speaker: Welcome back.
M. Bernier: Yeah, they might take back that applause after they hear some of
my comments I have to make. But I do appreciate the opportunity to stand
up and speak to Bill 7.
This bill, the Electoral Boundaries Commission Amendment
Act, is something that comes in front of this House every two elections.
I want to maybe start by acknowledging and thanking so many of my B.C.
Liberal colleagues who have taken the opportunity in their role as an
elected member of this House to stand up and to speak to this bill and
to talk about the vastness of our province of British Columbia, the
diversity that we have in our province, the differences that we have all
around — whether it be through our economy, through the people and
diversity, the geography that we have — and how we are so blessed in the
province of British Columbia because of all of that.
British Columbia, because of that, though, obviously has, I would
say, challenges but opportunities as well. We are different than almost
every other province in Confederation, almost every other province in
Canada — the way that we are spread out, the way that we have the
opportunities in our resource sector, the way we have the majority of
the people who are situated in the Lower Mainland.
I want to thank my colleagues who have stood up, especially, I’d
say…. I want to acknowledge my urban colleagues who have spoken so well,
so eloquently, and who have spoken from the heart, who understand the
differences that we have here across British Columbia. Again, this comes
in front of us every two elections, the electoral commission amendment
act, for a review.
[5:15 p.m.]
This time, though, one of the things that obviously, I think,
perplexes myself and many members on this side of the House is the fact
that government has chosen to take out a major part of what’s in the
act, which is around — and I’ll use these words not carefully —
protecting three parts of the province.
Now, let’s not kid ourselves here. That protection was brought in
for very well-thought-out reasons, because of some of the things I
mentioned earlier — the differences that we have in the province because
of the geographical vastness that we have; and again, as some of the
people have said, because of the differences even for the people in our
province of what they expect to see in our province: what they hope to
accomplish, what they hope to have out of their elected
officials.
I will say how surprised — I’ll even use the word “disappointed” —
that I am that the members of the NDP have foregone their right to speak
in this House to what I would say is one of the most important bills
that’s come forward in this session, which is about our democracy, about
our representation. This is about the people of British Columbia, the
people they elect and how they are represented here in
Victoria.
I’m surprised, actually, that no members of the NDP are willing to
stand up and justify why they want to remove this portion out of the act
which would allow for the people in rural parts of British Columbia to
have what I would say is an equitable voice.
Part of the act is talking about effective representation. Well, I
ask you: what does effective representation mean? It’s a very loose
term, I would argue. The reason why I say that is I’m sure members of
the NDP will stand up and say, in their opinion, effective
representation completely comes down to people only, and having the same
amount of people represented by an MLA. Maybe that’s why they’re not
speaking to this, because that’s what they all believe.
I know there are rural MLAs in the NDP who have travelled the
province. I truly believe that they understand the challenges in many
areas of the province that I will speak to and I know members,
colleagues of mine, will speak to. I know that there are now members of
cabinet who have been very fortunate enough, in the NDP, to travel
around the province in their role and to hear from people. But I also
know that they’ve seen the challenges that there can be to get to remote
parts of British Columbia.
The fact that you might have to fly to an airport and then drive
for five or six hours after you’ve landed in an airport just to get to a
meeting — I know members of the NDP understand that, some of them at
least. I would hope all would. So it does surprise me that not only are
they willfully removing this
section out of the act; it’s, I would say,
quite upsetting that they’re not willing to stand up in the House and
defend those exact actions that they claim to support.
Let me just put things in perspective a little bit for,
maybe, members of the NDP who have not had the privilege of
travelling around the province yet, who have maybe not had that
excitement of flying to Dawson Creek and Fort St. John and then having
to drive five or six hours to go visit First Nations communities up by
Fort Nelson, up in the Liard or almost to the Yukon border. I hope they
get that privilege, because then they’ll understand where we’re coming
from, for those of us like myself and my colleague in Peace River North,
with some of the differences.
[5:20 p.m.]
Now, this is not about and it shouldn’t be about an us and them, a
rural or urban. That’s not what this is about. At no time am I trying
to, through my comments, take away from the work or the challenges that
an urban MLA faces. I just want to highlight that they’re different.
When I say “different,” I think back to a former colleague of mine, a
former mayor of Vancouver that most of us in this House know — Sam
Sullivan.
Sam flew up to Dawson Creek because he had never been up there, as
a member of this House at the time, representing Vancouver–False Creek.
He flew up to Dawson Creek because he said he really wanted to
understand the differences that we sometimes talk about in this House.
He definitely got an eye-opener when, as a person travelling and using a
wheelchair, with some of the challenges when you have dirt roads,
cobblestone sidewalks and airplanes and hotels that may not be
accommodating to someone in his situation.
One of the other things that he reminded me of in our
discussions…. He goes: “You know, sometimes we take for granted when
we’re in downtown Vancouver…. Yes, we have challenges.” And yes, they’re
unique challenges that maybe I don’t have to face, but he reminded me
that even in his situation of being a member from downtown
Vancouver….
As I know the Speaker and others will recognize, his riding was
about eight square blocks, representing more people, granted, than I
represent — eight square blocks. He also reminded me that, give or take
a few issues, the majority of those people in that eight square blocks
have similar issues, similar challenges. They have similar discussions —
not to stereotype it, by any means. Of course, there are some
differences, but he was trying to, I think, highlight for me that he
understood when he came and toured around my riding.
He said: “Wow. You know, I don’t have to deal with four different
mayors who have four different possibly competing issues, who have to
travel for hours just to have a face-to-face meeting with their MLA. I
don’t have to deal with three sawmills that are competing against each
other and the challenges of the back country. I don’t have the stresses
and challenges of a massive oil and gas field and the competition that
comes with that, and the challenges that that faces, or one of the
largest agricultural zones in the province on top of all of that, and
the ranchers.”
I could go on and on, but the point was that it was an eye-opener
for an urban MLA to understand the differences and the challenges that
rural B.C. faces. Picture this. I believe — I’ll be corrected if I’m
wrong — that there are around nine MLAs on Vancouver Island. My riding
alone is larger than Vancouver Island. Imagine being in Port Hardy, and
the only way you’d get to have a face-to-face with your MLA would be
possibly driving from Port Hardy down to Victoria, if that’s where the
office were.
Let’s look at it a different way. In the Lower Mainland, there are
48 MLAs — because of the population; I’m not taking away from that —
that represent the Lower Mainland. My riding is larger than the entire
Lower Mainland. You have one MLA, which is myself, representing a
geographical area that 48 MLAs represent in Vancouver and the Lower
Mainland area. That comes back to the point of effective and, I would
say, fair representation. I believe it’s something where most people in
the Lower Mainland, if they actually thought they would have one MLA to
represent them, because of geography, they would be up in
arms.
[5:25 p.m.]
This is why we have a situation where we represent by population.
I understand that. But that is also why there was a situation where
protection was brought in for these unique situations in these three
zones of the province because of those geographical challenges and
issues, to make sure that we recognized what effective or fair — and, in
many cases, essential — representation means. I don’t want to get into
an us-and-them. I don’t want to create that rural-urban divide. I just
want the acknowledgment that there is a rural and urban difference, that
there are different rural and urban needs and expectations.
I know my colleague from Peace River North…. I think one of the
most common things we hear, with two MLAs that represent such a large
portion, geographically, of the province…. One of the number one things
we hear is: “How do you guys even get heard in Victoria, as it is? We’re
the furthest away. There’s only two of you. How do you get your voice
heard?”
I know my colleagues can probably talk about some of those
comments that we’ve heard from people already, when we said, “You do
realize that the NDP are now taking away this part of the act that will
take away that three-zone protection” — an assurance that we’ll at least
have some semblance of fair representation in Victoria for rural parts
of the province.
If Peace River were to be amalgamated together, as could happen
under this situation that the NDP have put together, that one riding —
which would now have one MLA, I assume, under what this government is
trying to put together — would be well over 200,000 square kilometres.
Think about that: 200,000 square kilometres with one MLA