2000 Legislative Session: 4th Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes

only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, MAY 9, 2000

Afternoon Sitting

Volume 19, Number 12

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The House met at 2:07 p.m.

Hon. H. Lali: I request the chamber's indulgence while I make several introductions. Joining us today in the gallery are some very important taxi industry representatives from around British Columbia, here to witness today's introduction of a bill to amend the Motor Carrier Act.

The people very patiently waiting and joining us today from the taxi industry are Mohan Kang, president of the B.C. Taxi Association; Mohinder Mann, president of the Vancouver Taxi Association; Gordie Hundel, vice-president of the VTA; and John Palis, coordinator of the VTA; and, as well, Subag Singh, Ted Allen, Chanchal Heer, Sohan Mehat, Tim Land, Don Guillault, Amrih Mahal, Mike Reeves, Steve Bzara and 15 other representatives from the taxi industry.

Also joining us are key people from within the ministry who worked extremely hard to make sure that the standing report implementation would come forward. They are Chair Claude Heywood and Jan Broocke from the Motor Carrier Commission. Also from the Ministry of Transportation of Highways -- and, by the way, the person who perhaps deserves the most amount of credit -- there is Kirsten Pederson as well as my deputy minister Claire Dansereau, to whom I'm continually grateful for the ongoing good work.

Hon. Speaker, I would like to ask the members of this House to please make all of the representatives from the taxi industry and my guests welcome.

C. Hansen: We're joined in the gallery today by 92 students from Little Flower Academy in the riding of Vancouver-Quilchena. They're accompanied by three teachers: Matt Coady, Karen Corness and Maureen Lyons. I hope the House will make them very welcome today.

E. Walsh: Hon. Speaker, I am really pleased today to introduce to the House seven members of the political action committee for the Hospital Employees Union. These committee members represent members from all over this whole House here, so I know that everybody is really going to make them welcome today. I'd like to introduce Cicera Ferreira, Dave Johnson, Nancy Hamilton, Iris Reamsbottom, Julia Amendt, Don Allen and Kristina Vandervoort. I would ask the House to please give them a really warm welcome.

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Hon. J. Pullinger: Today I am honoured to introduce someone who I believe is well known to both sides of the House -- certainly to this side of the House. Mr. Jim O'Dea has been chair of B.C. Housing since 1997 and, I think everybody would agree, has done a superb job of that.

As well as welcoming him to the House today, I want to acknowledge an accomplishment. Recently, at the Canadian Housing and Renewal Association's annual conference in Mississauga, Ontario, Mr. O'Dea was awarded the prestigious Graham Emslie award. He was presented that for "commitment to community-led housing solutions from Newfoundland to B.C. over a long and continuing career as an affordable housing activist." Hon. Speaker, that's quite an accomplishment; it's one that we should all be proud of. I would ask all members of the House to join me in not only welcoming Mr. O'Dea, but in thanking him and congratulating him for his wonderful work as well.

C. Clark: We are joined in the gallery today by two friends of mine. One is Joe Payne, who's a local Victoria political activist; the other is a young woman named Ann Marie Aase, who is a great friend and supporter of mine from Port Moody. I hope the House will make them both welcome.

G. Hogg: We are joined in the gallery today by four members of the B.C. and Yukon Provincial Council of the Catholic Women's League of Canada. They are here meeting with the opposition and the government, and presenting their issues. They are Jackie Leonarduzzi, Margaret Beardon, Jean Falck and Pat Battensby. Would the House please make them welcome.

Introduction of Bills

MOTOR CARRIER AMENDMENT ACT, 2000

Hon. H. Lali presented a message from His Honour the Lieutenant-Governor: a bill intituled Motor Carrier Amendment Act, 2000.

Hon. H. Lali: I move that the bill be introduced and read a first time now.

Motion approved.

Hon. H. Lali: I am pleased to introduce the Motor Carrier Amendment Act, 2000. Bill 13 consists of nine sections. Of those sections, seven amend the Motor Carrier Act. The other two sections are transitional provisions that do not amend any statute.

This bill contains amendments to the Motor Carrier Act that seek to address issues arising from the Stan Lanyon report called "A Study of the Taxi Industry in British Columbia." The amendments are requested to remove the motor carrier licensing exemption for taxis and limousines operating strictly within the boundaries of one municipality, establish a new reconsideration process that modifies the structure of the Motor Carrier Commission, implement several administrative streamlining measures and also provide enabling authority to the commission to establish mandatory provincial or regional taxi associations at some time in the future.

Further consultation with industry will be undertaken before any associations are established.

I will provide more information on these amendments during second reading of the bill. I move that the bill be placed on orders of the day for second reading at the next sitting of the House after today.

Bill 13 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

Oral Questions

MANAGEMENT OF

B.C. FERRY CORPORATION

G. Campbell: Hon. Speaker, in 1994 the cabinet was told by Treasury Board that there was an urgent need to replace the B.C. Ferry fleet. The current Minister of Finance and the

[ Page 15434 ]

minister responsible for B.C. Ferries sat on Treasury Board at that time. Now they say they were wrong in 1994. There is no need; there is no urgency.

Today, after a billion-dollar spending spree, we're told: "There's lots of life left in the boats." My question to the minister responsible for B.C. Ferries is: can she tell us why she told us one thing in 1994 and the opposite today?

[1415]

Hon. J. MacPhail: Hon. Speaker, in 1994 the corporation of the day presented what are the standards of industry in terms of the life of the particular vessels being used by the B.C. Ferry Corp. Most of the vessels were put into service in the early sixties, and the industry standard of the day was that those particular vessels would have a life span of 35 to 40 years. In fact, those accepted standards were applied basically throughout the world.

In 1999, when there was a new CEO in place, the CEO decided to conduct their own survey of the usefulness left in the vessels -- what it would mean if we invested in refurbishment and extra maintenance, etc. -- and came to the conclusion that with increased maintenance and refurbishment and supplementing the fleet with a few smaller vessels, there's a better investment in that direction.

The Speaker: The Leader of the Official Opposition with a supplemental question.

G. Campbell: So let me get it straight. The NDP has built up a billion dollars of additional debt for the Ferry Corporation, and service is getting worse. Lineups are growing each and every day, and now this minister is asking us to take the word of the same Treasury Board that we should be investing 400 million additional dollars in the Ferry Corporation.

My question to the minister is simply this: why should any taxpayer have any confidence in this minister or this government getting us out of the mess that this minister and this government created in the first place?

Hon. J. MacPhail: Well, hon. Speaker, it is a bit irresponsible of the opposition to stand up and say that there's been a billion dollars of waste. It is fair comment for the opposition to support the auditor general's report on fast ferries; that's true. However, over the course of the last decade the corporation has done several things. They've built the Spirit-class ferries; they've upgraded and maintained new facilities; they've added terminals. I think Duke Point, etc., has been added in that time. There has also been an increased maintenance program that is part of the investment in the fleet. That's what's been going on.

In addition to the maintenance of the fleet, which now is paying off, we have also put the Ferry Corporation, for the very first time -- whether it be the previous Social Credit government or the W.A.C. Bennett government that brought in the Ferry Corporation in the first place . . . . For the very first time, it has its dedicated revenue source. Yes, it's true; this government did decide to absorb the $1 billion of debt now, which has been invested in the corporation, so that the B.C. Ferry Corporation can operate on a sound financial footing.

The Speaker: The Leader of the Official Opposition with a further supplemental.

G. Campbell: Hon. Speaker, the mismanagement of the Ferry Corporation by this minister and this government has become legendary in this province. This government has taken B.C. Ferries from $60 million to over a billion dollars in debt. If the minister spent one moment asking the customers of B.C. Ferries how they were doing, the customers would tell you that those dollars were misspent, were badly allocated.

There are over a hundred questions on the order paper about how on earth this minister, this Treasury Board and this government got us to the state that we are in with B.C. Ferries. There is no one in the province of British Columbia that will trust this minister or this government to get us out of this mess without an open public inquiry into their mismanagement of the ferries. Why doesn't the minister call for that inquiry and answer those questions, so we can start building a foundation of confidence in B.C. Ferries for people in coastal communities in British Columbia?

Hon. J. MacPhail: Hon. Speaker, we have already done all of the investigation into what needs to be done with the capital plan. The Leader of the Opposition is bankrupt of ideas in terms of the future of the Ferry Corporation; this side of the House is not.

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We have done our investigation into the capital plan. There has been an inquiry done into the fast ferries. There has been public consultation on what constitutes better ferry service. That is ongoing; we meet with communities regularly. We meet with the tourism association, we meet with the municipal councils, and we meet with the passengers and the customers that use the ferry service regularly.

We are making the changes that are demanded by the ferry-dependent communities. We're making the changes that are demanded by the customers as well. We're doing it through broad public consultation. We're getting on with changing the B.C. Ferry Corporation to make sure that it works. We don't need to have a public inquiry like the official opposition always turns to for everything.

PACIFIC RACING ASSOCIATION

M. de Jong: Well, while we're looking at the government's track record, why don't we take a trip out to the track? I've got a question for the minister responsible for horse racing. Will she confirm that the NDP-created association running Hastings Park racecourse, chaired by its own NDP appointee, is essentially bankrupt and is in default on its scheduled payments and that the largest creditor is this government?

Hon. J. MacPhail: The horse-racing industry is in trouble in this province. Yes, that's absolutely true. We're working with both the standardbred industry and the thoroughbred industry to restore what was once a very thriving industry in this province. Seven thousand jobs are supported by the horse-racing industry. In the early 1990s the industry itself -- a coalition of participants of the industry, the owners, the trainers, the drivers -- came to the government and said that Hastings Park was not working under its current circumstances.

Yes, we did create a non-profit society, the Pacific Racing Association. In order to make the transition from the private sector to this non-profit society, the provincial government did

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loan the Pacific Racing Association a substantial amount of money. And yes, the Pacific Racing Association is having trouble making its payments on that loan. The member is absolutely correct. That's not a secret. What we're doing, though, is not going to let the industry go into ruin. We're working with the horse-racing industry, both the standardbred and the thoroughbred, to make it viable and to make it a thriving part of the agricultural sector.

The Speaker: The member for Matsqui has a supplemental question.

M. de Jong: Based on its performance, if this government were a horse, I'd put it out of its misery, and that's what British Columbians are going to do.

In 1992, Hastings Park was running. It was running effectively, and it was making a profit. And guess what. It was paying taxes. Now it's on the verge of bankruptcy. The prospects of the NDP's little association paying back any of those loans is remote, to say the least. How much are taxpayers on the hook in this latest experiment for the loans that the NDP made to the sport of kings?

Hon. J. MacPhail: The Pacific Racing Association is made up of representatives from the horse-racing industry. For that member to stand up and somehow suggest that the industry is out of control or facing a bleak future because of government action is simply wrong. We're working with the horse-racing industry to make the industry better.

The Pacific Racing Association owes about $5 million. Let me tell you what the Ontario government did in order to support the horse-racing industry. It's a solution, frankly, that this government has not embraced. The Ontario government was confronted with the same issues by the horse-racing industry. That industry said: "We need slots at our racetrack. We need VLTs and slots at our racetrack." That has assisted the industry in growth there. We have chosen not to impose that on the municipalities that have racetracks. What would their solution be? Would they embrace the Ontario solution? I'd like to hear.

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CLOSURE OF

CAMPBELL VALLEY WOMEN'S CENTRE

L. Stephens: The Campbell Valley Women's Centre in Langley provides intensive addiction treatment for high-risk teenage women, but the centre faces closure at the end of June because the Ministry for Children and Families has withdrawn its funding. The ministry has decided to move to the new therapeutic foster care homes model, but those beds won't be available until October at the earliest. Will the minister tell us what treatment services young women in life-threatening situations can expect while they wait for a treatment bed?

Hon. G. Mann Brewin: I appreciate the question from the hon. member. The member knows, and the association knew, that there would be a finite time to their contract, and the contract has been offered and will be filled by another organization in another community. In the meantime, it's my understanding that services will be provided for these young women.

The Speaker: The member for Langley with a supplemental question.

L. Stephens: Moving from a residential treatment program like Campbell Valley to the therapeutic foster home model is more expensive, and it provides less service. In fact, the ministry's documents confirm that the seven foster care beds in Surrey that the minister is talking about are going to cost $275 a day, and the 13 beds at Campbell Valley cost $225 a day. Can the minister tell us how she can justify spending more money for fewer services on an unproven model of care?

Hon. G. Mann Brewin: I'd be happy to offer the member a detailed briefing on the details of the work that we're doing and where we're proposing to go.

B.C. HYDRO LEGAL COSTS

IN CEO DISMISSAL SUIT

G. Farrell-Collins: Yesterday it was revealed that B.C. Hydro and, through B.C. Hydro, the ratepayers of British Columbia were going to be forking over almost a quarter of a million dollars for legal fees in John Sheehan's wrongful dismissal suit. That has now proceeded; the court case is over. Will the Premier disclose to us today what the legal costs were for B.C. Hydro in fighting this suit?

Hon. D. Miller: Subject to an absolute verification, they were in the range, I think, of about $375,000.

PHYSICIAN SHORTAGES IN

NORTHERN AND RURAL AREAS

P. Nettleton: The people of Prince George are paying the price for this government's squandering of half a billion dollars on fast ferries. Just last week the Northern Interior health board said that Prince George is short 25 specialists, ten family doctors and 75 nurses. Will the Health minister admit that his government has failed the people of Prince George by diverting much-needed money from health care into boondoggles like fast ferries?

Hon. M. Farnworth: The Ministry of Health will admit that we are working with the community of Prince George to address the issues around attracting and maintaining physicians in the community of Prince George. That's why we have concluded an agreement with rural doctors in northern British Columbia, northern areas of the province, and that is going to be ratified. It has to be done by the doctors and then by cabinet. Part of that strategy is to look at ways of retaining and ensuring that physicians want to go to communities such as Prince George, which is an important regional centre.

Second, one of the key areas that we need to move on in health care is addressing the issue around physicians in British Columbia -- not just here in British Columbia but across the country. The issues facing rural British Columbia and northern British Columbia are the same as every other province is facing. That is why it is important that we get Ottawa to the table in terms of looking at how we fund health care in this country -- to restore the partnership around health care in this country and to address issues through national strategies that can involve training of physicians who specialize in northern

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and rural health care issues. We need a short-term plan, which we're working on, and, more importantly, a long-term plan to ensure sustainable solutions.

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The Speaker: The bell ends question period.

Tabling Documents

Hon. G. Bowbrick: I have the honour today to present the annual reports of the Information, Science and Technology Agency for the years ending 1998 and 1999.

Hon. P. Ramsey: I have several reports to present. First, I am presenting the reports of the business done in pursuance of the Pension (Teachers) Act and of the Pension (Municipal) Act for the fiscal year ended December 31, 1998. I also have the honour to present the public accounts for the fiscal year ended March 31, 1999.

Mr. Speaker, I would request leave of the House to move a motion without notice.

Leave granted.

Motion without Notice

REFERRAL OF PUBLIC ACCOUNTS

Hon. P. Ramsey: I move that the public accounts for the fiscal year ended March 31, 1999, be referred to the Select Standing Committee on Public Accounts.

Motion approved.

Orders of the Day

Hon. D. Lovick: I call Committee of Supply in Committee A. For the information of members, we will continue our debate of the estimates of the Ministry of Municipal Affairs. In this House I call Bill 8, Miscellaneous Statutes Amendment Act, 2000.

MISCELLANEOUS STATUTES

AMENDMENT ACT, 2000

(continued)

The House in committee on Bill 8; T. Stevenson in the chair.

Sections 22 to 27 inclusive approved.

section 28.

G. Plant: The amendment before us is to the Islands Trust Act. It adds a paragraph which is a reference to first nations into what is

section 9 of the Islands Trust Act. The explanatory note says that the amendment is intended to authorize the trust committee to enter into agreements with first nations respecting the coordination of activities in a trust area for the purpose of the objects of the trust.

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My question around this provision relates to the interrelationship between trust councils or trust committees on the one hand and municipal governments on the other hand. As I understand it, at least now on Bowen Island there is . . . . I'm not sure if "overlap" is the right word, but Bowen Island is subject to the Islands Trust and is now also a municipal government. More of these may come in time. I think that Saltspring Island may be moving down this path; I'm not sure how far along they are.

The concern in relation to this amendment, which comes out of the municipality community, is whether the amendment will give the Islands Trust council and committees the power to enter into agreements with first nations that might end up imposing burdens on municipal governments that they won't have any input into. Perhaps the minister can offer some comfort on that front.

Hon. A. Petter: I'll try to provide the member with some comfort in regard to the concern he raises. As I understand it, these coordination agreements are largely process agreements that take place. Right now they allow for various parties to arrange their affairs in a way that allows for greater coordination and cooperation. And all this does -- it doesn't change the character of those agreements in any way, shape or form -- is that it allows the trust council, in respect of those agreements, to include first nations within the ambit of parties with whom they can reach such agreement. The member has already enumerated the other parties with whom they can make such agreements.

It doesn't change or displace the balance that exists right now between municipal governments and the Islands Trust. It simply allows one more party to be brought into the coordination agreement structure that currently exists.

G. Plant: And which would happen without leading to a situation where a municipal government found itself facing obligations arising out of these agreements in a circumstance where they've had no input into the agreement itself.

Hon. A. Petter: As I understand these agreements and am advised by staff, the only way in which an obligation could be imposed on a municipality under these agreements is if the municipality were a party to the agreement, voluntarily. Otherwise, the agreement will be between the trust council and whomever, in which case the obligations would be amongst those who were parties to the agreement. They would deal largely with questions of process and information-sharing.

G. Plant: Perhaps as a final question, then . . . . I understand what the minister means when he says that we're talking about process agreements. Could he give an illustration of the kinds of subjects that would be covered in such agreements?

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Hon. A. Petter: Yeah, I can give a few illustrations. They might involve things like working together on the identification of areas that the parties to the agreement believe require some environmental protection, or discussing land use issues or dealing with information-sharing or mapping concerns -- where the parties to the agreement agree that a greater level of cooperation, information-sharing or cooperative work on the objective would produce a beneficial result. Clearly such agreements can't impose obligations on parties who are not parties to those agreements.

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G. Plant: This will, I think, be the last question. There has been some public discussion, if not controversy, around logging in the Gulf Islands in circumstances where first nations reserves are the subject matter of the logging. Some Indian bands, I think, have proposed logging in areas where others have expressed some concern about environmental and other interests. Is the amendment here intended to create a context within which the Islands Trust could approach first nations to construct relationships that might hopefully ameliorate these kinds of difficulties?

Hon. A. Petter: If the member is offering an illustration of what these agreements can do, then I would say absolutely. That's exactly what they are designed to do. The inclusion of first nations here is to facilitate that kind of cooperation and discussion taking place.

Sections 28 to 31 inclusive approved.

section 32.

G. Plant: I want to spend a moment or two on

section 32. Really, the points I am going to make -- the questions -- also relate to

section 33. There may be one or two other members of the opposition who want to participate in the debate.

I'm wondering if we could begin by just getting the government to explain what it is that it seeks to achieve by this change to the Motor Vehicle Act.

Hon. A. Petter: I apologize, but we were just getting staff organized here.

If the member's concern is around the general purpose being sought by

section 32, it is to provide clarification and resolve some concerns that have been raised about the enforceability of the

section of the act to which it refers. This ensures that it's clear that if a blood alcohol reading is taken with respect to alcohol that was present in the person's body at the time they were driving the car, what is relevant is whether that reading -- within that three-hour time period -- exceeded the allowable limit. That removes the ambiguity about making inferences and going back about what it might have been the moment the person had left the bar, or whatever it may have been. It's to clarify that there's a three-hour window with respect to which the reading applies.

G. Plant: I think the context may be relevant. In

section 32, I think, we're talking about the administrative driving prohibition, which is a process by which a driver can have their licence suspended for up to 90 days following roadside checks and all that other good stuff. I'm told by the members of the legal professional that I've talked to about this amendment that it's intended to eliminate something called the last-drink defence. I'm told it works like this: when a person is stopped by the side of the road, the breathalyser test is often not administered until up to an hour later. The test may indicate a blood alcohol content above .08. However, the person argues that he had his last drink shortly before being stopped.

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It takes 20 to 30 minutes for the alcohol to transfer from the person's stomach to his bloodstream, I'm told. Therefore the person argues that at the time he was actually stopped, which was an hour before the test may have been administered, the last drink had not yet entered his bloodstream, and therefore, he was below .08. At least by way of moving the discussion along, could the minister indicate whether that explanation accords with his understanding of the context for the proposed amendment here?

Hon. A. Petter: Yes, I think that that explanation does, and that this would, as the member indicates, remove that defence. It is a fairly technical defence: that the amount of alcohol at the precise time was such -- because it had not been fully absorbed into the bloodstream -- that it might have produced a reading that was somewhat less than actually occurred when the reading was administered. This would remove that defence and the procedural difficulties around that issue.

G. Plant: Well, we start from the same point. Now, I guess, we get to the problem. In a way, while we might look at the so-called last-drink defence as one of those sort of unpleasant technicalities, many of which seem to pervade the law relating to impaired driving, there is also present in this law and in the case law around it a pretty admirable strain of judicial endeavour in terms of protecting the basic civil rights of citizens.

When we bring that approach to these amendments, I have some concerns, because when someone argues the last-drink defence and they succeed, they are in effect able to demonstrate that at the time they had the care and control of the automobile, they did not in fact have a blood alcohol reading of over .08, and therefore they were not operating the motor vehicle while they were impaired. We might complain about the way in which people get to make that argument, but of course its legitimacy -- that is, whether or not the contention is true -- is a matter to be determined on a case-by-case basis in trial courts.

If the contention succeeds, however, then we have a person accused of an offence -- or the person in this case subject to a notice of prohibition -- who, at the time that they were stopped, had the care and control of a motor vehicle in circumstances where they were not impaired. This amendment seems to give the government way too much latitude in terms of saying: "Well, it's no longer a question of whether you were driving while impaired; it's really as simple a question as whether or not you were impaired at any time within three hours after having care and control of a vehicle."

I guess it's possible that the minister's construction of the

section is different from mine. As a starting point, I'll give him the opportunity to defend the language of his proposed amendment.

Hon. A. Petter: I think the way to approach it is this way. First of all, this is an administrative provision dealing with a

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licence suspension provision. The principle that I think the member is raising is: have we defined this in a way such that the people understand ahead of time, in an appropriate way, what their responsibilities are, and are we then fairly assessing upon them the consequences for not living up to those responsibilities?

If in fact it were defined ahead of time that the responsibility is to remain below .08 at any time within the three hours following drinking or at the time that your car was stopped, then it would be unfair to come back to the person later and say: "However, we are now going to visit consequences on you even though you might have, at the time we stopped you, been below that level." But of course what this

section does is change, substantively, the expectation in a way that I think is altogether reasonable and responsible. It says to individuals in this province that in order to retain your licence -- in order to not be subject to suspension -- your responsibility is not to be below .08 at any time or fortuitously at the time that you were stopped, but to make sure that the level of alcohol in your system is such that it will not exceed .08 at any time within that three-hour period.

[1450]

Provided that people understand that ahead of time and provided they understand that they have to guard against that consequence, there is no unfairness here whatsoever. The substantive rule, if we pass this

section -- as I hope we do -- will be well understood. People who are in bars will understand that their obligations are to not run the risk of ingesting alcohol to a point that could raise a level of .08 within that three-hour time frame. By doing so, we will serve the public good, because we will eliminate this propensity to try to take one for the road in the hopes that you can rush home before the alcohol has been digested to the point that in fact it exceeds the limit. That is a race not only against one's self; that's a race against all the people on the road, because if you don't make it and if you are intoxicated, the consequences, of course, could be devastating.

So I do have a different view of this from the member. I think we're changing, ahead of time, the public expectation. Everyone will be aware. It's not a matter of changing the rules after the fact; it's a matter of defining the rules before the fact that all citizens will now be aware of and will have to live by.

G. Plant: But the basic principle behind all this -- the place we started from as a society when we started worrying about this -- is that you shouldn't drive while you're impaired. This changes that basic principle. This creates a different expectation, as I understand it, and my understanding is not . . . . I mean, I'm not the only one who reads it this way.

Essentially, if you blow over .08 at any time within three hours after you've been in a car, then you're going to pay a price. That's not only a substantive change in expectation; I think it's a substantial departure from good public policy. The minister talks about putting an end to a defence. The one thing I can say -- and surely he'll remember this from law school too . . . . The one thing that I know for a certainty is that whenever you put to death one technical defence in the law of impaired driving, you create two more. It is just human nature in this area.

We are not going to be able to prevent that from happening, so the question I think we have to ask is: are we making good public policy?

I think there is a serious problem in making public policy which says that the rule now is that the state can take your driver's licence away from you for 90 days in any circumstance where, having been in care and control of a vehicle, within three hours thereafter you're found to be over .08 -- whether or not you were intoxicated at the time you had care and control of the vehicle.

Hon. A. Petter: Well, I think the member's points would be better taken -- they're great points; don't get me wrong -- if in fact there were a clear defining line between what is intoxication and what isn't. In fact, there's a gradation of impairment that takes place the moment one ingests alcohol and that alcohol comes into one's system.

Let me give the member some statistical correlation. If one has .02 percent alcohol, statistics suggest that the risk of an accident rises by 20 percent from the baseline of no alcohol. If one's level goes up to .04, it's up to 40 percent; .06, up 60 percent. Then the correlation in fact gets steeper: at .08 there is a 90 percent higher risk of incurring an accident.

So this isn't a case where suddenly you hit .08 and suddenly it becomes a higher risk. There's a gradation here. Some jurisdictions, of course, have defined impairment in different places along that gradation. For the purposes of a suspension, the question is: is it good public policy to allow people who blow over .08 within three hours -- and clearly have consumed a level of alcohol that would, at that point, put them at a 90 percent higher risk -- to escape liability on the hypothetical, with the burden falling on others to show that they in fact were not below that level at some point when they were driving or when they were stopped?

The argument here is: no, it is not good public policy to provide that defence, because in fact there is a steepening of risk with every drink that's consumed. It's better to come up with a standard that can be certain and administered without opening up all sorts of opportunities for escape holes and legal arguments when that isn't necessary.

So in this case, defining it as a .08 standard within that three-hour window, knowing that there will be a higher risk and a level of intoxication that will increase the risk -- even if it so happens that they were at .06 or .07 the moment they left the bar or the moment they stopped taking their last drink -- is, it strikes me, good public policy, not bad public policy.

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D. Symons: I'd like to describe a situation for the minister and just ask for his comments regarding it. This was passed on to me by somebody in the Automobile Association. The situation could be that somebody's had a bad day at the office, or let's say a bad day at the Legislature. They get home after that bad day and they take a stiff drink. Half an hour later they start to hear this wild party going on next door. People are having a barbeque out in the back yard, and he isn't in the mood for that. This bugs him some more and he takes another drink.

The party gets really wild, so he goes across there and starts arguing with the guy who's having the party, gets into an altercation, and the fellow phones the police. The police come and they say: "We just saw him drive home an hour ago; he's obviously plastered."

What's to stop this three-hour one from going into that situation, where they take an alcohol reading two hours after the event, but actually the police didn't see him drive the car; these people assumed he did. What sort of situation would he be in, in that case?

Hon. A. Petter: Well, that's a very interesting story. I know that misapprehension was created as a result of press

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reports and the like that came out shortly after this miscellaneous bill was tabled. But in fact, if you go back to the provision that it's amending, you'll find that the operating words are "having consumed alcohol in such a quantity". Therefore this standard is clearly applied only with respect to that alcohol that can be demonstrated to have been in the person's system at the time that the person was driving. And if there was a suggestion that alcohol was consumed subsequently and that is what resulted in the higher reading, then that would be a defence, as it has been previously and as it would be under this amendment.

K. Krueger: Just to press that point a little further, because that is the concern. This whole matter of administrative driving prohibition has added a whole new area of response to an issue that we over here, and certainly all of society in British Columbia, are concerned about. But you don't have to go and get convicted of blowing over .08. You don't have to be convicted of any Criminal Code offence. You can just lose your licence for 90 days, and that's a pretty big deal to a lot of drivers in British Columbia.

In spite of the minister's assurance a moment ago to my colleague for Richmond Centre, it seems to me that the wording of these amendments to the existing legislation leaves room for all sorts of errors to occur. For example, if a person goes to a pub or a restaurant for lunch, consumes alcohol with the meal, decides not to drive home but is stopped later as a passenger or visited by police in his workplace or his residence -- because there are allegations that he, apparently, had been out driving while he had been drinking -- I think that this wording captures him.

The minister keeps referring to blowing .08, but that's not what

section 94.1(1) says. It says: "If a peace officer has reasonable and probable grounds to believe" -- it doesn't say anything about a breathalyser or blood test being administered -- "that a person operated a motor vehicle or had care or control of a motor vehicle having consumed alcohol in such a quantity" -- and the amendment kicks in after that -- "at any time within 3 hours after operating or having care or control of the motor vehicle . . . . " This whole process can lock in on him.

He can lose his licence on the spot, get issued his interim licence, have a 24-hour suspension -- which comes with a permanent record. He can lose his licence for the full 90 days. Under this wording, I think, this could all happen without him actually having driven that vehicle that day while he had been drinking at all.

[1500]

Hon. A. Petter: I can assure the member -- and more importantly, staff have certainly assured me -- that the kinds of scenarios that he talks about are not ones that are captured by this section. The peace officer has to have reasonable and probable grounds to believe, by reason of an analysis of the breath or blood of a person . . . . So there has to be some basis for that reasonable, probable grounds in an analysis of breath or blood.

That is why I refer to the breathalyser example, because that is going to be the more prevalent example: " . . . that a person operated a motor vehicle" -- a passenger is not a person who operates a motor vehicle -- "or had care or control of a motor vehicle." A passenger is not a person who has care or control of a motor vehicle. So the concerns that the member refers to are simply not well-founded, in respect of the language of this section.

And now, having said that, I don't want any member to mistake this section. It was introduced and is being amended as a reflection of a strong public policy of this government and, I think, of British Columbians, to send a strong message that impaired driving is a serious matter, that we expect citizens to take precautions to guard against that, and that if they fail to do so, there'll be consequences -- and serious consequences. And what we're saying here is that those precautions have to be ones that guard against the possibility of blowing a particular reading within a three-hour period.

And to that extent, it is changing -- the expectation we're placing on citizens. I freely admit that as well. And that too is a reflection of the fact that we are serious, and we expect that citizens who have the privilege to drive carry with that privilege an understanding that that privilege also carries with it responsibilities.

We're defining those responsibilities better here, I think, and asking citizens to abide by those responsibilities, or serious consequences will flow to them. If they don't live up to those responsibilities, serious consequences will also flow -- and not just to them, but to them and to others -- in terms of the accidents that result and the devastating consequences of drinking and driving.

K. Krueger: What about the scenario where the police visit the person in his home that they think was driving a vehicle while he had been consuming alcohol? He says: "I didn't do it. Any drinking I've done is since I've finished driving." But they do go ahead and give him a breathalyser; he agrees to it. Or he refuses and gets into that whole route. Or they give him a blood test. They've done the analysis. The argument is that he drank after he drove the vehicle. He has still certainly consumed alcohol within three hours after having driven a vehicle. How is he not captured by what this legislation sets out to do?

Hon. A. Petter: Nothing changes in respect of the example the member gives under this legislation. The breathalyser would have to be sought pursuant to the Criminal Code and the protections and provisions of the Criminal Code. The ability to then visit a suspension upon that individual would depend upon reasonable and probable grounds.

This legislation -- this amendment -- changes the test to some extent, making it clear that the test is a reading at any time in that three-hour period when the breathalyser is administered. The protections and civil liberties of individuals are not altered, except insofar as the test has been altered and citizens are now aware that there is that difference in the test. The hypotheticals the member raises are not affected, in my understanding, by these changes -- unless I misunderstand his point.

K. Krueger: I think they are. The whole response of administrative driving prohibition is a fairly recent development in our law, and now we're widening the net. If a police officer has reasonable and probable grounds to believe that person had care, custody and control of the vehicle or was driving and he finds him to have a significant level of alcohol consumption within three hours after, then the peace officer must, according to

section 94.1(1)(

b) of the Motor Vehicle Act . . . . It doesn't really give him latitude. He must launch this administrative driving prohibition process. If the person did actually consume the alcohol after he got home or subsequent to driving the vehicle, it seems to me the police officer nevertheless, because he finds him having consumed alcohol within three hours afterwards, is obliged to launch this whole process, which really impacts on a person's life.

[ Page 15440 ]

I accept that the minister doesn't intend that. That's clear from his previous answers. But I think that that could happen. There are cases of police officers operating on testosterone or whatever who tend to push the law further than legislators intend. It seems to me that we really are kicking open people's doors and widening the powers of the state to deal with people in ways that I don't know if the minister really intended.

[1505]

Hon. A. Petter: Nothing changes. The peace officer now, before the amendment, must . . . . Reasonable and probable grounds are the basis now. The analysis of breath and blood is obtainable now. All this does is say that the test is one that pertains in that three-hour window. The public policy for that is: do we really want to encourage people, before they leave the neighbourhood bar, to take a few shooters for the road in the hopes that the alcohol will not be absorbed in their blood quickly enough to produce an .08 reading before they get home? Do we really want people to gamble with their lives and ours by incurring that social behaviour?

What this legislation is saying is no, we don't want them to gamble with our lives and theirs, incurring that kind of social behaviour. We don't want to create a whole system in which those kinds of arguments can be raised subsequently, when they're arguments that are frankly based in bad public policy as well as arguments that impede the ability for us to keep our roads safe and ensure that these kinds of very tough measures, tough suspensions -- no apology from this side of the House about that -- are visited upon those who drink and drive.

R. Coleman: I have a number of concerns about this

section as well. I will tell the minister that I conducted well over a thousand breathalyser tests and was recognized as an expert witness on breathalyser and impaired driving in some of the courts in this country.

My concern is this. The case law that I dealt with back then -- and I don't think it has changed; if anything it's gotten worse, not better -- was that anything that's taken outside of a two-hour period as far as a breath sample was concerned had to be extrapolated backward by an expert relative to the exact time that somebody would be driving an automobile. I'm wondering how the minister addresses that issue relative to . . . .

If somebody is picked up at three hours, gives a positive sample in excess -- in this case an actual fact, because the 20 milligram percent allowance within what we've found in our court system -- of 100-plus of a sample, how are you going to extrapolate that back? Where are you going to find the experts to do the extrapolation within your system to deal fairly with the client who you are saying was impaired at the time of operating the motor vehicle?

Because three hours is a minimum of 20 milligrams percent loss of alcohol in the blood on a 150-pound man, the extrapolation has to be calculated on the weight of the individual and the time that they are actually brought to the instrument for the test. Even under the Criminal Code of Canada, I don't believe that you can actually gain a conviction or use outside two hours as bringing a person to the instrument, and you're bringing him within three hours. At three hours, how are you going to decide the extrapolation of the actual blood alcohol at the time of the operation or the care and control of the motor vehicle?

Hon. A. Petter: I appreciate the member's intervention and his expertise in the area. I think his intervention, in fact, points directly to what this

section is trying to achieve. First of all, as I understand it, the Criminal Code was changed so that the breathalyser could be administered within three hours. This is bringing that three-hour window into this legislation. It's true, under the Criminal Code, it being a criminal provision, that there is an extrapolation process where the breathalyser is taken. I think beyond two hours, at least, there is a requirement to extrapolate backwards. But in this case, what we're doing is to remove the need for that extrapolation. That is exactly what this does.

It says, "There is no requirement for extrapolation. The individual's responsibility in drinking before driving is to keep the level of alcohol in their system below that which would result in a .08 reading at any time in the three hours afterwards" -- based on the alcohol they've drunk prior to or during driving, not afterwards. So that requirement for extrapolation, that difficult process that the member refers to, is no longer required in this case. It simplifies the process from an administrative point of view.

But from a public policy point of view, it takes away this propensity of people to think that they can shoot a few drinks, jump in their car, drive home and somehow avoid responsibility in the hopes that they'd get home before the alcohol is ingested into their system and into their blood at a level that would produce a criminal level of impairment.

[1510]

We are saying, for the purposes of this administrative provision, that that responsibility should be one that falls upon those people who drink and drive to make sure that their alcohol level stays below .08 at any point in that three-hour window.

G. Plant: I am interrupting my colleague, and we'll let him continue in a minute. I sit here, and the minister continues to give assurances about the language of the thing. I think I've finally seen what it does. The problem right now is that there's this last-drink defence, which is the couple of shots the minister talks about before you get in the car for the quick drive home. This is intended to deal with that. The problem that it creates is that the last shots will actually now happen in the living room once you get home.

If you have a shot or two in the bar, drive home and have four or five shots, then you are in big trouble, because someone is going to have this argument about having consumed alcohol in such a quantity.

Well, how much of it was consumed and when? I mean, I don't think the argument is going to go away. I think it is just going to create different kinds of arguments. If I had confidence that the minister's construction of the way this thing would work was correct, I would feel better about this provision. I regret to say I don't have that confidence in the wording that's being used.

Hon. A. Petter: Let me just give the member confidence that nothing has changed in respect of the concern he has. Right now, if someone is observed driving in a way that raises a concern with drinking and driving, goes home and has some further drinks, and the police under the Criminal Code have reason to then visit that person and demand a breathalyser, there is still the problem of distinguishing between the level of alcohol that was consumed prior to arriving home or not and then extrapolating back. All this does is deal with the

[ Page 15441 ]

extrapolating-back part. The distinction made between alcohol consumed previously or subsequently is there now. It can't be eliminated.

Of course, if there is not reasonable and probable grounds for the police officer to believe that the level of impairment was a result of alcohol that had been consumed -- "having consumed" is the wording in the

section -- then the licence can't be suspended. So nothing has changed.

R. Coleman: In all due respect to the minister, a tremendous amount has changed. We will find that taking the extrapolation out of the process -- if you're going to follow the rule of what you're going to try and do here -- will lead to what will be termed false arrest. When an individual is read a demand to give a breath sample and is taken before a breathalyser, they are technically under arrest until they deal with that examination and test. That is based on a period of time outside of, with extrapolation, reasonable and probable grounds.

You have reasonable and probable grounds to believe somebody is over a certain level of alcohol at the time they are operating or are in care and control of a motor vehicle. You've taken away some of their rights by taking them in a police vehicle to a detachment to do a breathalyser, and you are now taking a sample of their blood or their breath, which, in this case, gives you the blood alcohol content.

My concern is that without the extrapolation, in going outside this period of time, you're saying that the Criminal Code of Canada is good enough for breathalyser convictions, but it's not good enough for suspensions. So we're going to ignore the case law of Canada, ignore the system relative to breathalysers in this country. We're going to allow for another window where now the individual has to prove -- the onus of proof now goes to the individual, as I understand -- and to extrapolate backward that they weren't at that level at the time they operated a motor vehicle.

Maybe the minister can clarify that. But according to what the minister said a minute ago, you say the application is that the extrapolation period is eliminated in the three-hour period now because of the suspension. Are we eliminating this? If we are, are we issuing a demand for people to give a breath sample, which then falls under the Criminal Code when we issue the demand for the sample?

[1515]

Hon. A. Petter: This

section cannot and does not amend the Criminal Code. The circumstances under which breathalysers can be administered under the Criminal Code are not altered by this section. The rules and protections that apply to the administration of breathalysers or blood sample tests do not change. This in no way affects that.

This deals with the consequences of a breath sample legally obtained under the Criminal Code in respect of a suspension. What it says is that if the consequence is that the breath sample or blood sample demonstrates a level of impairment at the time that it's administered -- provided that it's within three hours, based on alcohol that was present in the person's system when they were driving -- then the licence is suspended.

There's no shifting of onus here; there's a changing of test. The person cannot go back and say that they were not . . . . They cannot go back and extrapolate back; there is no extrapolating back. The requirement is that they keep their level of impairment to a point that it does not exceed .08 at any point in the three-hour period following their having consumed the alcohol and having been driving. That does not change.

This

section cannot change the Criminal Code. All the Criminal Code protections are still there. It does change the test with respect to the suspension under provincial legislation, flowing from the breathalyser that is administered under the Criminal Code. It does not reverse the onus. It changes the test.

R. Coleman: The minister just said a "legally obtained" breath sample. The only way to obtain a legal breath sample is by issuing a legal demand under sections of the Criminal Code. Now, you've taken an individual to an establishment. They've given you a sample. That legally obtained sample -- outside two hours -- with case law, has to be extrapolated. But under this, it doesn't. So you're taking the sample, which is being taken under reasonable and probable grounds under one code, which is the Criminal Code, and you're allowing for flexibility outside that code to give somebody a suspension.

Then you made the further statement that if you're operating a motor vehicle and you've had alcohol, don't go over 80 milligrams percent in a three-hour period after you've driven the vehicle.

After all, we're now going to dictate to you how much alcohol you can consume in your own residence when you get home. You'd better stay under 80 milligrams percent in the three-hour period after you arrive home, because I can now come in and say: "I have reasonable and probable grounds. I'm taking a legal sample." Then you're going to give me a suspension for a period of time relative to that, and it's up to me to prove that I wasn't -- that somebody else is going to extrapolate back and show that it wasn't over 80 milligrams percent.

Maybe I'm hearing this wrong, but that's the

interpretation I get when I read the act. Again, it's the

interpretation I get out of the minister's comments. I think that if you go outside that two-hour period, you are going down a dangerous road relative to the extrapolation, because everybody knows -- the science tells us -- that different body masses extrapolate differently and that the metabolism works differently.

Hon. A. Petter: I think I can do this but one more time, hon. Chair.

The ability to administer a breath sample in the Criminal Code was extended to a three-hour window from a two-hour window; that's already there. The province has, within its authority, constitutional authority with respect to matters that relate to drinking and driving -- with respect to public safety and driving, for example. The federal government clearly has authority with respect to its authority for the criminal law.

There are two aspects to this matter: one provincial, one federal. Case law clearly establishes that the province can establish its own standards. Indeed, it's quite appropriate that a standard that leads to certain criminal consequences may be a higher standard than one that leads to certain administrative consequences.

What's happening in this case is that the province is saying, as a matter of public policy through this change, we

[ Page 15442 ]

believe that for the purpose of a licence suspension, the test should be based upon whether there was a reading in excess of .08 within that three-hour window, without extrapolation back. That's completely within the province's constitutional ambit of responsibility, and it's being pursued for an excellent public policy reason. It doesn't alter the Criminal Code, and it doesn't in any way undermine the Criminal Code.

Furthermore, it only applies to alcohol that was in the system when the person was driving -- alcohol that was consumed prior to when the person was driving, not alcohol that would have been consumed subsequently. To the extent that alcohol is consumed subsequently, that's a problem now; it's a problem here. The police have to resolve that they have reasonable, probable grounds to believe that the impairment and the level of intoxication reach the unacceptable level, based only on that alcohol that was consumed prior to the person leaving their car and getting home.

[1520]

R. Coleman: I think what we're going to do here is agree to disagree, because I think that you're going down an extremely dangerous road. The people you're putting at risk as far as making these decisions are the law enforcement officers of the province, who are now going to be asked to step outside the box a bit more, relative to the extrapolation of that three hours, and make decisions.

I do know that even if the sample is allowed to be obtained in a three-hour period, the difficulty with extrapolation back to the time of the actual operation of a motor vehicle . . . . This isn't a case of whether somebody supports or doesn't support impaired driving. Frankly, after seeing the carnage of what alcohol and impaired driving can do on our highways, I think it's something that has to be dealt with in a stringent manner.

But at the same time, I really see us coming up with a vehicle . . . . I believe that in a year we'll be standing here and amending this, because I think we're going to find abuses in the impossible application of this type of three-hour limit outside, without extrapolation, and in application relative to these suspensions. That's what worries me more than anything, because I think it's badly crafted as far as its application for the law enforcement officer in the field.

G. Plant: I want to make one other point; it has a number of parts to it. I have another concern about this provision. It's less to do with the detail than with what the public might take from it. We were here in this chamber in 1997, and I recall the minister then introducing Bill 41, the Traffic Safety Statutes Amendment Act. There was lots of high-sounding language, probably on both sides of the House, on how we could deal with the problem of impaired driving in British Columbia.

One of the things that Bill 41 contained --

section 5 -- was a provision that dealt with remedial driver training as a condition of licence. It actually gave the superintendent of motor vehicles the power, in effect, to withhold a licence in circumstances where the superintendent was of the view that somebody needed some form of counselling or therapy for a substance abuse problem. I recall that the government incorporated this as a part of its much-ballyhooed traffic safety initiative in 1997. For a while I was kind of persuaded that maybe the government actually meant something about this initiative.

But it's not 1997 anymore; it's now the year

Section 5 of Bill 41 of 1997, which was to become

section 25.1 of the Motor Vehicle Act, hasn't been proclaimed yet. It's still not in force. The government doesn't have any problem coming in here and ratcheting up the rules around administrative driving prohibitions, giving itself a nice big club to hit people on the head with.

But the real societal problem is that there are people out there who shouldn't be behind the wheel of a car, because they have a problem with abusing substances and driving vehicles. There are tools available out there in society to deal with that problem. There's therapy; there's counselling. There's a course in Nanaimo that costs $6,000; apparently it has enormous success. I'm told that $6,000 is the going rate for defending an impaired driving charge. Instead of focusing and developing the tools to take us down that course of public policy, the government seems to think that the way to deal with impaired driving is just simply to rely on the penal provisions of the law.

It doesn't stop here. I discovered a few days ago that the Criminal Code of Canada has provisions.

Section 255 of the Criminal Code of Canada says that instead of convicting a person of certain kinds of impaired driving offences, a court may in fact . . . . If the court is of the view that curative treatment in relation to the consumption of alcohol or drugs would be the right thing to do, the court can discharge the person and direct that the person go to treatment -- which seems to me to be exactly the right thing to do, particularly for repeat impaired-driving offenders.

Then what do I find? I find that the only way that subsection of the Criminal Code works is if it's brought into force in a particular province. Notwithstanding all the high-and-mighty language from the government in 1997 about its commitment to this issue, British Columbia is a province -- it may be actually one of only three or four provinces in all of Canada -- that has not proclaimed this provision of the Criminal Code in force.

[1525]

Again, it's easy to come along, ratchet the consequences up and give government a bigger stick to hit people over the head with. But when it comes to the hard work of actually doing the kinds of things, providing the programs that need to be provided and giving administrative officials the curative and remedial tools they need to have to actually deal with the problem of impaired driving, that appears to be way too hard for this government. That appears to be way too much like hard work for this government. It's much easier to just come in and make the penal law a whole lot more difficult.

I want a good explanation from the minister, who stood up in this House three years ago -- four sessions ago -- and introduced these changes in the Motor Vehicle Act to allow remedial driver training as a condition of a licence. Why hasn't he done this? Why doesn't his government proclaim the provisions of the Criminal Code? Why doesn't his government implement the Substance Abuser Rehabilitation Act that I introduced as a private member's bill in 1997? Why does the government think that the only response to impaired driving is to give the police officers an even bigger club, when it seems to me that it isn't going to solve the problem?

Hon. A. Petter: That was passionate but not entirely accurate. Speaking personally for a second, I appreciate the member's reference to the legislative changes that were made. I haven't been minister responsible for this particular area for

[ Page 15443 ]

some time. I will answer in the context of this particular

section and try to relate it back. Otherwise, I run the risk of straying outside my area, and I'm here to answer on the section.

The fact of the matter is that this is not something that can be addressed through a single strategy. It requires us to use all the tools that are at our disposal in order to deal with unsafe driving. Huge strides were made in the legislative amendments the member refers to, which have produced very positive effects in terms of encouraging safe driving. In respect of drinking and driving, of course, huge efforts have been made by government in respect of CounterAttack programs, etc. We also, though, should not ignore opportunities to change societal attitudes through the use of penal provisions and remedial provisions.

On the remedial side, I agree with the member that we have to move towards more remedial programs, and I know that work is underway. In fact, last October, as I understand it, an interim program dealing with the worst 600 drinking drivers in the province was implemented. These drivers must now pass a two-hour assessment with a specialized addiction counsellor in order to gain their license back. So, in fact, steps have been taken in the direction the member's talking about. Can more be done? Certainly. I'm sure that the minister responsible is working on that.

In reference to the Criminal Code provision that the member references, I understand that there have in fact been concerns expressed about the use of that particular provision to provide remedial programming, because of consequences that weren't intended. I don't know the detail, but I would be happy to look into it with the member and find out. That doesn't detract from the point that remedial responses are necessary and, as I've indicated, are being pursued -- in fact have been pursued with a new program as recently as last October.

But let's not make this a case of the best being the enemy of the good. We should be doing everything. Unfortunately, there is still a culture out there amongst people that it's okay to have one for the road when you're getting up to leave your bar -- the one-for-the-road culture. What this amendment says is that if you're going to have one for the road, make sure that that one doesn't place you in a position where you're going to be in excess of .08 at any time in the three hours following driving. That seems to me a reasonable expectation. If it can help to counter irresponsible one-for-the-road behaviour, then I think that's a good result.

The member who spoke previously, the member for Fort Langley-Aldergrove, said the government was going down a dangerous road. Well, what we're trying to do here, and I think successfully, is to prevent citizens from going down dangerous roads -- roads that will become dangerous for others, those who become the victims of accidents where people who are intoxicated are driving.

I appreciate the member's concern. If the member's saying there are other areas that we should attend to -- absolutely. But let's not use that challenge that we have in other areas and the work that remains to be done there as a excuse to not do the right thing here.

[1530]

Section 32 approved on division.

Sections 33 to 44 approved.

section 45.

R. Neufeld: I'm a bit confused by it when I go to the statute.

Section 45 almost looks as though it should not just be a

section added, but that

section 63 should be changed in the present statutes. I want to go over that a little bit with the minister, because what it says presently is:

"Despite sections 58, 61 and 62, if a lessee fails to pay the rental or do work required under

section 56, the lease expires 60 days after the date the rental was payable unless on or before the 60 days have elapsed, the lessee pays (

a) the rental and does the work, and (

b) in addition, as a penalty for each 30 day period or portion of a period that he or she is in default, a sum equal to 1.5% of the rental and value of the work."

Yet the new

section that's added has another penalty to be paid, $500. It also has

section 63.1(

c) that says, "the lessee pays the rental and does the work . . . " -- which is already in the bill. So I'm not sure if there are some wording errors here, or if some of what's in the bill at the present time should not be removed and this be a totally new addition. Or is it in fact the intent of the government to levy two fines -- 1.5 percent of the rental and the value of the work, plus a fee of $500? To me it doesn't make sense, the way it's listed out at the present time.

Hon. A. Petter: I understand that this $500 fee is an additional fee-for-service for reinstatement and is substantially lower than the comparable fee in Alberta, which I believe is $5,000. It is therefore different than and above and beyond the other fees he refers to.

R. Neufeld: Well, we're not in Alberta; we're in B.C. I want to go back to my initial question; maybe your staff wasn't here. I don't have any problem with

section 63 as it is in the act at the present time. I'm sure Mr. German has a copy of it. The date . . . .

But I guess my second question has been answered. You are levelling two fines, then: the one that was in place prior to this, which was 1.5 percent, plus the $500 penalty. I'll just leave it at that.

Hon. A. Petter: Well, I'll take one shot at this. I notice that the minister has now arrived, and he may be able to give you a more detailed version. As I understand it, the 1.5 percent is an overdue penalty. This is a fee-for-service. The two are different; one does not substitute for the other.

[1535]

R. Neufeld: If that's the case, that's fine; it's in addition. Can I ask one simple question and read it before you respond? In the act now,

section 63(

a) says: "the rental and does the work, and . . . . " The new one that's added, 63.1, has

section (c): "the lessee pays the rental and does the work . . . . " You're saying two of the same things. All I'm saying is to remove one

[ Page 15444 ]

of them. That's all I'm asking. I'm not making a great big historical change to it. Just have it in there once -- unless you want to have it in there twice; that's fine with me.

Hon. D. Miller: I'll try this argument and see how the member responds: I'm advised that the drafter insisted that it be put in in this manner.

R. Neufeld: Hey, listen, if the drafter is stuck on having it in there that way, then I don't have any problem with double wording and saying the same thing two or three times. I'm not sure that the government's going to listen at the end of the day, anyhow. That's been our experience.

One last question on this section, then: what consultation was done with the industry, particularly CAPP, with this change?

Hon. D. Miller: This is really a small part of the broader oil and gas initiative, one of two that we've already announced. The changes that are contained in this legislation really have been vetted by CAPP, the Small Explorers and Producers Association of Canada, the Canadian Association of Petroleum Landmen and the Canadian Association of Petroleum Land Administration. So I think it's generally fair to say that within here -- in another section, the issue of the lease term -- there may be some who might not totally embrace this. But in general, it's been approved by the organizations I've just cited.

Section 45 approved.

section 46.

R. Neufeld: Again, just a simple straightforward question on consultation with the industry. I know I want to ask

section by

section to find out whether there was a lot of consultation with industry on this section. If it's the same as the minister told me before, then that's fine with me.

Hon. D. Miller: Yes, it is Mr. Chairman. It's interesting, the wording of the bill. There's a fair amount of language attached to these various amendments. But in its essence, the bill is an attempt to streamline administration. It's an attempt to bring more fairness where there is uncertainty with respect to a situation that might arise where a lessee, for whatever reason, fails to pay the appropriate fee at the appropriate time. It brings more regulatory certainty in terms of the ability to recognize that errors sometimes happen and not have people lose their lease as a result of that.

It provides really a very good incentive for work to be done on land that has been purchased for exploration.

Unlike Alberta, we do have a ten-year, where they have five. The provision for increasing the fee in the latter five years for new leases is one that ought to stimulate more activity in the region. It is generally, I think, supported by the industry.

Finally, recent correspondence and discussions I've held with members of the CAPP . . . . I was at the annual CAPP dinner in Calgary a number of weeks ago talking to Steve Savidant of Canadian Hunter and others -- Pierre Alvarez from CAPP. I think it's safe for me to characterize the relationship between the ministry and CAPP as being very, very positive. I've indicated to them that our stance as a government is to continue to be open where issues are identified that may be problematic, as we were last year, for example. We had not examined our heavy oil royalty for a considerable number of years.

It was completely out of date; we've adjusted that. As a result of that, Wascana is spending $100 million in your constituency.

[1540]

We're completely open in terms of our stance. If we identify problem areas that can be fixed by these kinds of amendments, then we want to proceed. I know that the member is in communication with CAPP and others on these questions and would, I hope, accept my characterization of the relationship.

R. Neufeld: I appreciate what the minister said. I guess it's typical that when I attend in Calgary, sometimes I get a bit of a different feeling about what has actually transpired in the rosy getting-along-with-government and everything. It is my suspicious nature that will make me stand up and ask the minister: have you fully consulted with industry? I don't say that industry is always going to agree with government. That in fact is true.

But as long as there's been a good consultation process in some of these changes, industry has had their opportunity to lay their concerns on the table and government has actually looked at them seriously, then it's fair ball. I just want to make sure that took place. When I go to Calgary, I don't want to hear from any of those folks that, no, there was no consultation but that, yes, there was. So I will be checking that out.

Secondly, the member talked about Wascana and the heavy oil. Maybe he's not aware -- or maybe he is aware -- that 100 percent of that work originates and happens out of Alberta. Although the wells are drilled in British Columbia, everything is provided out of Alberta because of the border and where the heavy oil is. There's very little of that, in any of the service industries or any of the things that would happen in the constituency, that actually takes place in British Columbia. It all originates out of Alberta, and all the taxes and all that go back to Alberta. The minister and I have had many discussions about that, but I just wanted to make him aware of that.

Hon. D. Miller: Two brief points. One is that I know that the member feels quite confident that there will be a role reversal at some point. I can assure him that if that ever does come to pass, he will find that the reverse might be true, as well, with respect to what he may have to say, were he in my position.

Secondly, I think we're mindful of the issue of competitiveness, and I think all members would agree that the changes we've introduced over the last number of years have significantly improved the competitive position of British Columbia with respect to oil and gas activity. And the issues that we are working on will improve that even further.

I also think it's fair to say that, regardless of jurisdiction, whether it's B.C. and Alberta or any other two contiguous states or provinces, there will always be a degree of difference in those respective provinces or states. In those border areas -- and in British Columbia it happens to be in the northeast and in the Kootenays -- you will always have a degree of debate with respect to the businesses, in this case on the Alberta side of the border or vice versa. Unless, of course, we decide at some future point that we think there's merit in the idea of having a single province called B.C. and Alberta or whatever, you'll always find these frictions. But I am very,

[ Page 15445 ]

very positive about the industry in the northeast. I don't have an exact number, but I think last year the revenue-to-government side -- which shouldn't be the only indicator -- was clearly in the range of $150 million to $160 million over forecast. That's a pretty good indication.

The member is aware that we've announced a $103 million road package, primarily in his constituency, taking the revenue stream from oil and gas and improving roads to improve access, which ought to lead to further activity. We have done an extensive competitive study within the ministry. It's interesting that that competitive study -- very detailed and very technical -- is now being used by CAPP as a base for information. We are working constantly with CAPP to try to identify areas of competitiveness and, quite frankly, areas of myth -- in other words, where people think there's a degree of difference and in fact our analysis shows there's not a difference.

[1545]

I must say as the minister I'm delighted with what I think is the success of the oil and gas initiative. I fully expect, on a net basis, that oil and gas revenue will exceed forestry revenue in this province. I think, with the discussions that I've held with the Northwest Territories, really, the kind of vision we have in British Columbia and Mr. Kakfwi has in the Northwest Territories are somewhat similar. I expect great things in the future as we look at a shifting north of the industry and the benefits that might flow into British Columbia.

We're working very, very hard to try to maximize the return or the benefit to British Columbia by some of the strategies that we're employing. Again, I know the member meets regularly with the commission, and all of this information has been made available to him. We'll continue to try to work in a positive way to . . . . I'm taking too much time, and I apologize, Mr. Chairman.

Sections 46 to 53 inclusive approved.

section 54.

G. Hogg: I note that in

section 54(b),

section 14, subsections (1.1)(

a) and (

b) are intending to increase the duties of superintendents by adding a requirement for them to investigate complaints about parental failure to provide educational programs to children registered as homeschool students, in independent schools and in provincial schools. I note also that that intent was in the legislation prior to '97, at which point, in the amendments to

section 14 in '97, I think a similar intent was removed and now is being put back in. My question is whether or not this was an oversight and was left out in the amendments in '97. Or has there been a change in public policy or intent, with respect to this matter, to see it being reintroduced at this point in time?

Hon. A. Petter: I'm informed that what occurred in 1997 was a drafting error. This was not intended to be a change in policy one way or the other. The error inadvertently removed the power to permit persons to report their belief to a superintendent of schools that a child registered as a home-schooler in an independent school was not receiving an educational program. This simply corrects that oversight.

Sections 54 to 57 inclusive approved.

section 58.

G. Hogg: Throughout the Teaching Profession Act modifications there are references to delegating responsibilities to subcommittees. My question is with respect to those delegations as they exist throughout sections 58 to

section 66, I believe -- in that range. The council is elected, and then there is reference to delegations of responsibilities that the elected council has to subcommittees. My question is: are those subcommittee members . . . ? Can that responsibility be delegated to a subcommittee member who is not also a member of the council? Or is there a delegation of responsibilities to people who are non-elected and therefore outside the purview of the elected or appointed members of the council?

[1550]

Hon. A. Petter: It's just to the elected members.

G. Hogg: My understanding, then, is that this simply allows for smaller groups to gather so that the whole council doesn't have to gather. There could be smaller delegations of responsibility -- committees who have specific tasks. They then report back to the full council. So there's no delegation through legislation to anybody who's not elected to the council.

Hon. A. Petter: Yes, that's correct. In fact the member may take some comfort in knowing that this was a recommendation that came from the British Columbia College of Teachers to clarify the current practice and to make sure that there was a clear legislative footing for the current practice.

G. Hogg: I don't take comfort from whence it comes. However, I understand the minister to be saying that this is just clarifying a practice that is currently in place.

Hon. A. Petter: Yes, that's correct.

Sections 58 to 73 inclusive approved.

Title approved.

Hon. A. Petter: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The House resumed; the Speaker in the chair.

Bill 8, Miscellaneous Statutes Amendment Act, 2000, reported complete without amendment read a third time and passed.

Hon. D. Lovick: Sorry for the delay, Mr. Speaker; I was finding my desk, because I was required to sit in another place for the last debate. I call committee on Bill 9, the Cooperative Association Amendment Act, 2000.

COOPERATIVE ASSOCIATION

AMENDMENT ACT, 2000

The House in committee on Bill 9; T. Stevenson in the chair.

Sections 1 to 8 inclusive approved.

[ Page 15446 ]

section 9.

[1555]

J. Reid: We do have a few questions on

section 9. I'll let my colleague lead off with that.

R. Coleman: The first question relative to

section 9(

a) is: what is the legislation referring to when it refers to "the member has not paid rent"?

Hon. J. Kwan: The

section that talks about failure to pay rent simply means when a member has failed to pay their rent for the unit which they are occupying.

R. Coleman: Just so we're clear, is that rent paid to the co-op with the co-op as a manager or as a landlord-to-tenant relationship? Further on, we also deal with occupancy charges and others. When you're dealing with a co-op, sometimes the definition of rent gets misinterpreted, because co-ops also have tenants where they actually operate as landlords, where some of their tenants are actually paying rent to the co-op when units are in transition.

I'm just wondering if we're dealing with rent as defined in the Residential Tenancy Act or rent as defined under a separate act. I just want to have that clarification.

Hon. J. Kwan: The cooperative structure is such that a member living in a cooperative is not deemed to be a tenant per se, because they are actually a member who holds shares within the cooperative. The rent which they pay will be a membership share or fee that is applied to the unit; therefore the relationship is likened to a tenant-landlord structure. However, because the cooperative structure is such that the members themselves are part-owners of the cooperative, it's not like a tenancy situation.

R. Coleman: Thanks to the minister for clarifying that. My only concern is that it was in the reference to rent, rather than what I think should have been left as occupancy charges -- as a member paying their occupancy charges to the co-op. Once you get into the rental definition, you're actually using a term, I think, that doesn't necessarily apply to co-ops. I think that what they're paying is their occupancy charges, not rent, because they are members of a co-op, and co-ops are a form of ownership with the membership. I was just concerned with that being included in there, rather than just dealing with occupancy charges, leading to confusion down the road.

Section 9 approved.

section 10.

J. Reid: The assistance for co-op housing members who have had their membership terminated has been explained to me as a concern in this

section of the act. Some of the people that I spoke to with regards to these amendments suggested that the ministry was wanting to address the problem of people who couldn't afford their filing fees. I don't see anything in this amendment that actually addresses that, so the question is: is there any intention in this act to address that concern?

Hon. J. Kwan: Yes, actually, it is in its prescribed form. It will be described under the regulation.

Sections 10 to 23 inclusive approved.

section 24.

J. Reid: This particular

section of the act was already amended, and we're looking at another amendment. I would ask the minister to provide a clarification as to the role of auditors and co-ops.

[1600]

Hon. J. Kwan: This change is essentially intended to mitigate some of the concerns that were raised by the Institute of Chartered Accountants of B.C. and the Certified General Accountants Association of British Columbia, both of which were consulted on it. Essentially, the change is to restrict the ability of the federation to provide auditor service to member associations that are not non-profit associations.

J. Reid: The concept of an auditor in statutes such as B.C.'s Company Act, B.C.'s Securities Act and B.C.'s Society Act is that auditors are independent. The co-op bill and now this amendment address the role of a federation to act as an auditor of its own member associations. We've got a differentiation made between the for-profit co-ops and the not-for-profit co-ops. If there's a concern with regards to one or the other, would the minister define what the concern is with one of the co-ops as opposed to the other and, if there is a concern with the one, why it doesn't relate to the other group as well?

Hon. J. Kwan: In the instance where not-for-profit cooperatives oftentimes actually would have government support or funding that would provide for an accountability at a greater level than a for-profit cooperative . . . . In that instance, the requirement to say that the federation should not audit their own members in that regard addresses the larger accountability question. For the for-profit organizations, then, the accountability is not to government but to their own membership. The application of this act would, I think, address the issue of accountability that way.

J. Reid: So there is a problem with accountability. There is a concern that has been recognized that with an auditor not being independent, there is an accountability question. The ministry, through this act, is suggesting that the non-for-profit co-ops have a greater level of concern -- a greater level of accountability -- because of government support. My question would be: for these other for-profit co-ops, would there be any situations where they would be receiving government moneys?

Hon. J. Kwan: Within this ministry's programs, where the for-profit cooperatives would not be receiving government dollars to operate their business or their venture, they are, however, entitled to apply for a contribution from government to assist them in setting up the structure of the cooperative.

J. Reid: I would like to reiterate the point that the ministry has acknowledged through this amendment in this particular bill: that there is a concern with the independence of auditors and with the federated co-ops. And I don't believe that this amendment in this bill fully covers that concern of independence of auditors and maintaining that independence of auditors. Certainly with the distinction that's been made

[ Page 15447 ]

here, I believe that the government is recognizing that there is a problem there, and it's unfortunate that it hasn't been fully covered off in this.

I guess the question is, then: when for-profit co-ops are recipients of government money, at what point is there any concern on the part of government as far as the auditing function, and is there a certain level of funding that they can receive? Or is it still considered that there isn't a concern at that point?

[1605]

Hon. J. Kwan: Within the federation, the auditors will still have to be qualified auditors, just like anybody else. So to that end, it's not that there won't be an auditing function but rather that they can utilize the federation for that auditing service.

I think the member needs to keep in mind, hon. Chair, that for the enterprises that are set up under the cooperative model, even if it's for profit, they tend to be small in their nature. They tend to be businesses that are really small in scale as well, and they're clearly looking for opportunities to decrease the costs to their operation. So with that, the federation, by offering its members an auditing service at a lower cost to them, does not mean to say that they would not receive qualified auditing service. They will still get it, because the auditors within the federation will still have to meet all the qualifications that are applicable elsewhere.

Sections 24 to 46 inclusive approved.

Title approved.

Hon. J. Kwan: I move that the committee rise and report the bill complete without amendment.

Motion approved.

The House resumed; the Speaker in the chair.

Bill 9, Cooperative Association Amendment Act, 2000, reported complete without amendment, read a third time and passed.

Hon. D. Lovick: Mr. Speaker, I now call committee on Bill 3.

BUDGET MEASURES

IMPLEMENTATION ACT, 2000

(continued)

The House in committee on Bill 3; T. Stevenson in the chair.

[1610]

Hon. P. Ramsey: I'd like to ask leave of the committee to revisit

section 44.

Leave granted.

section 44.

Hon. P. Ramsey: I'd like to move the amendment to

section 44 standing in my name on the order paper.

[SECTION 44, by deleting the proposed

section 49 (2) and substituting the following:

(2) If a peace officer has reasonable grounds to believe that

section 14 (3) or 15 is not being complied with, and if it is impracticable to obtain a warrant, the peace officer may, without a warrant,

(

a) stop a motor vehicle for the purpose of conducting an inspection under paragraph (

b) of this section, and

(

b) inspect and take samples of the contents of a tank or container, including the fuel supply tank of a motor vehicle.]

Amendment approved.

Section 44 as amended approved.

section 64.

G. Farrell-Collins: Sections 64, 65 and 66 all deal with similar matters, that is, the requirement of individuals or corporations based outside of British Columbia who sell goods or services to residents of British Columbia in British Columbia and cause those goods to be delivered to the consumer here in British Columbia . . . . They will now be required not to just collect PST -- provincial sales tax -- but also to register as an entity selling goods to consumers who reside within British Columbia and delivering those goods within British Columbia. Does the minister have any idea how he intends to enforce those provisions?

Hon. P. Ramsey: I think I'll make a couple of points here. The first point I'd make is with respect to interprovincial sales. The majority of Canadian businesses voluntarily comply, so there is not an issue of compliance for the majority. Some businesses are currently registered and remitting tax -- out-of-province, you know -- for sales into British Columbia.

The second point I'd make is this: we are not alone in the country in trying to grapple with this difficulty. One avenue for looking at compliance with this is interprovincial cooperation, because other provinces have the same set of issues.

The final point I'd make is that if it does become necessary to collect and necessary to undertake collection action, the province can pursue the formal court processes. Those are as appropriate for out-of-province vendors and debtors as for those within the jurisdiction.

G. Farrell-Collins: It would appear to me -- and I agree with the minister -- that there are other provinces that face a similar problem. Alberta wouldn't be one of them, because they don't have a provincial sales tax, but certainly the other provinces do. As well, a number of states in the United States have state tax that they are required to, or would like to be able to, collect and are finding it difficult -- as well as other jurisdictions around the globe. This is becoming an ever-growing problem as Internet commerce and sales become more prominent and become a larger and larger portion of the market.

[1615]

I can understand that the government may have some recourse to companies that are registered and incorporated in other provinces. There are ways to collect those taxes that are due. I guess the question I'm really looking for an answer to is

[ Page 15448 ]

when we get into the other -- particularly the Internet -- commerce, which I think is the area that the government is really trying to deal with here . . . . I know that other jurisdictions are having similar problems, and I know that there's a very heated debate raging right now in the United States about that -- whether the states are going to be able to collect and whether they're going to regulate the Internet or not.

I guess the question I have for the minister is: for those companies . . . ? I assume the large ones -- Amazon.com and the larger ones like that -- would probably be more willing or more able or more likely to participate in the process the government has here. But for the myriad of other companies, I would expect that the government is going to find it nearly impossible to collect on those taxes, despite the provisions in this amendment.

Hon. P. Ramsey: You're right. This is an interesting field as commerce changes and as acquisition of goods and services through e-commerce becomes not an object of curiosity and a special event but a normal way of doing business. I'd point out the following. It's for international sales using e-commerce. We already have some ability, because Canada Customs deals with that as they're imported into the country. That provides one mechanism. They collect for us, as they do for all provinces, when the goods are actually imported. They collect them at the port of entry as they come in.

I want to make it clear that there is an area that is clearly not captured. What these provisions seek to do is address sellers, if they're making retail sales in the province. That means they are advertising in the province -- advertising their products on web sites, say, in the provincial media. It is quite apparent that they are retailers in the province and that they are active in soliciting business within British Columbia.

Simply having a web site that can be accessed from British Columbia is not something that would be captured under these provisions. I do think that the larger issues here are going to have to be resolved at a federal level. I do not think that a province by itself can resolve it. Even internationally, I suspect, as e-commerce evolves there are going to have to be a range of international agreements to deal with some of the issues that you have raised.

It may seem like this has been around a long time. It clearly hasn't. We are at the beginnings of electronic commerce. As it evolves, I suspect that government policy in this province, in other provinces in this country and other countries will also evolve.

[J. Cashore in the chair.]

G. Farrell-Collins : I just want to get some clarification. First of all, am I correct in my assumption that this applies to goods only and not to services? Second of all, the minister said -- and I'm not sure I heard him correctly -- that if someone is advertising in British Columbia on other than a web site, buying television ads, buying print ads, buying radio advertisements, magazines, et cetera, that will be deemed by the Ministry of Finance as seeking to do business in British Columbia. Therefore that would require them to register under this act.

But merely advertising on a web site that one could pick up and access while living in British Columbia would not constitute, in the government's mind, an attempt to solicit business and sell goods to people resident in British Columbia. Is that correct?

[1620]

Hon. P. Ramsey: In the interests of moving things along, rather than simply repeating what you said, I'll say: "Yes." I think you've captured it very well.

G. Farrell-Collins: What about a case where a company is providing . . . ? When one buys software, for example, there may be ongoing support services that are provided over the telephone or over the Internet to support that software. Sometimes that's included as part of the costs. Sometimes it's not included as part of the cost. How would the government deal with that scenario?

Hon. P. Ramsey: Software that's sold from an out-of-province vendor into British Columbia would be subject to provincial tax. Similarly, if servicing was offered from out of province to B.C. purchasers of that software, it would qualify essentially as repair of a good, and it, too, would be subject to tax. Obviously in the case of software that's simply downloaded from the Net, it's very difficult to ascertain this.

G. Farrell-Collins: Maybe I'm not up to speed on this. Is the minister telling me that in general in British Columbia, support services for software are considered a repair, not a general service, and are subject to the PST?

Hon. P. Ramsey: Yes; they're considered repair and maintenance services to a good.

G. Farrell-Collins: The minister said earlier that currently the federal government, through the agreements that we have with what used to be called Revenue Canada -- I can't ever remember what its new name is . . . . At the present time they collect PST for us at the border, at the port of entry. If that's the case, it would seem to me then -- correct me if I'm wrong -- that that tax is being collected directly by Revenue Canada from the consumer. Therefore why would companies outside of Canada be required to register under these sections in order to collect and pay that tax? Would it not be a double taxation?

Hon. P. Ramsey: These provisions are still intraprovincial. There's no intent here to ask international vendors to register under these provisions.

G. Farrell-Collins: That's different from what I thought; I must have been wrong. I thought we were discussing international sales earlier too. But that's fine.

I'm then assuming that

section 64 of the bill in front of us amends sections 92 and 93, and that those sections apply to people or companies located outside of British Columbia but within Canada. Is that correct?

[1625]

Hon. P. Ramsey:

Section 64 is intended to deal with registration requirements for sellers located within Canada but outside of British Columbia.

G. Farrell-Collins: How much cooperation do we have from the government of Alberta in collecting these kinds of sales taxes from companies that are located in Alberta? I understand there would be some incentive from provinces which also apply a sales tax to be part of that cooperation. I'm

[ Page 15449 ]

wondering how closely we work together with the government of Alberta in them helping us to collect our provincial sales tax.

Hon. P. Ramsey: You're quite right in saying that where both provinces have a sales tax regime, the incentives to scratch each other's back is higher than in the case of Alberta. But we seek to work with Alberta on a wide range of interprovincial issues. We are part of a country, not autonomous states, so there is cooperation between folks in my department and the equivalent in Alberta.

In terms of just straight financial incentives, are the incentives there to the extent that they would be would be between, say, British Columbia and Ontario, where there are a large number of catalogue outlets? No. The incentive is far greater with Ontario.

G. Farrell-Collins: I would think that British Columbia would carry a lot more weight in those negotiations not just with Alberta but with other jurisdictions, if we had not been the one province out of bounds on the interprovincial trade issue. I would expect that trying now to go back to the other provinces and get them to help us collect our provincial sales tax must be somewhat difficult.

Perhaps it's not, but I would think that they would be far less willing to cooperate when British Columbia has been so intransigent on what is, I think, widely seen as a policy move that will be beneficial to Canadians regardless of which province they're in. I wish the government good luck on this. I think you may find it's more difficult than one thinks.

One of the provisions of this that I think can be a problem, too, is that now anybody, if it's a catalogue sales outlet or anyone who is selling -- in this case, an Internet e-commerce business located in Canada but outside of British Columbia or, for that matter, in any jurisdiction -- is going to find that they now have to register in ten provinces -- go through the paperwork of registering, collecting and submitting sales tax in ten provinces. I'm not sure how well they're going to respond to that.

I'm not sure what the solution is, but I don't think the government is going to find an awful lot of willingness on behalf of these businesses to participate in that process. I'm not sure that the government is going to have a lot of success trying to collect. We'll wait and see how it goes, but I expect the government is going to need a fair bit of luck in implementing these sections of the act.

[1630]

Hon. P. Ramsey: Through the Chair to the member, you're right. This is, as I said in some of my remarks, an evolving area of business.

I do think that the answer is not ten different provincial approaches to it but federal coordination of it. Say if a business doing e-commerce has one source of registration and one way of collecting social service taxes, whether it's GST -- which is already being collected by the federal government for e-business doing their thing in Canada -- and trying to work on PST as well . . . . I think the solutions are through federal-provincial cooperation.

Sections 64 to 71 inclusive approved.

section 72.

Hon. P. Ramsey: I move the amendment to

section 72 standing in my name on the order paper.

[SECTION 72, by deleting the proposed

section 123 (3) (d.1) and substituting the following:

(d.1) refuses to produce records or books of account or hinders or molests or interferes with an inspection, audit or examination or prevents or attempts to prevent a person from carrying out an inspection, audit or examination under this Act;.]

Amendment approved.

Section 72 as amended approved.

Sections 73 to 84 inclusive approved.

section 85.

Hon. P. Ramsey: I move the amendment to

section 85 standing in my name on the order paper.

[SECTION 85, by deleting the proposed

section 39 (4) (d.1) and substituting the following:

(d.1) refuses to produce records or books of account or hinders or molests or interferes with an inspection, audit or examination or prevents or attempts to prevent a person from carrying out an inspection, audit or examination under this Act;.]

Amendment approved.

Section 85 as amended approved.

section 86.

G. Farrell-Collins:

Section 86 does a couple of things. My understanding -- correct me if I'm wrong -- is that it changes the way the amount of tobacco that a person is licensed to or able to have at one time without a permit is calculated. It's no longer done in numbers of cigarettes but rather is done in quantity measured in grams. Is that correct?

Hon. P. Ramsey: Yes, that's correct.

G. Farrell-Collins: I think it also, under

section 86, which is an amendment to

section 40 of the Tobacco Tax Act . . . . If we go to

section 40(b)(4) here, the last paragraph of 86 in this bill, it says once again in that interesting language: " . . . is, in the absence of evidence to the contrary, prima facie evidence that the person unlawfully possesses or keeps tobacco, or possesses or keeps tobacco for an unlawful purpose." Is that new language that's being added to the bill?

Hon. P. Ramsey: The wording there parallels

section 39 of the act; that's the information I have. I don't think we have an amendment, as we did in the other sections that we changed.

G. Farrell-Collins: Again, my concern with this kind of legislation is that it establishes or alleges a set of facts and then finds the person, in essence, guilty of an offence. Then it's up to that person to prove that they're not. I know the wording isn't exactly the same as it has been in some of the other sections which we've amended. But again the reverse onus is, "We've caught you with this; now you have to . . . . You've

[ Page 15450 ]

committed an offence, unless you can convince us otherwise" -- as opposed to having the onus on the Crown to make the case.

[1635]

As I said earlier -- I won't go into it in great length -- in other sections of this bill I have a concern about that kind of reverse onus that's put on individuals. My opinion is that it's the Crown that has to prove its case; it's the ministry that has to prove its case, not the individual. There may be instances where someone has a certain amount of tobacco for themselves and tobacco for a family member, and they're transporting it back to a remote location, which . . . .

Maybe somebody is going to be living in a remote area for the duration of the winter, and they want to have that tobacco with them for the winter. They could end up in trouble because of that. I think that's perhaps not the intent of the act, but putting the reverse onus on individuals to prove their innocence is of concern to me.

Hon. P. Ramsey: I don't think there's a real difference between us about the concern. Reverse onus should be used in specific cases, and it should be used cautiously. Here it's used because . . . . In the real world, it's necessary to allow police to seize relatively large quantities of tobacco where the person who has them can't provide reasonable evidence that they hold them for a lawful purpose. Everything you've talked about in terms of, "I'm headed out to the bush for 14 days," and "I've been told to come into town to buy cigarettes for my buddies, and I'm headed back," or whatever, is evidence to the contrary.

The intent of this act is to allow police to deal not with that sort of situation, frankly, but with a U-haul trailer full -- that's really the target here -- and to enable police to deal with what clearly is unlawful activity.

Sections 86 and 87 approved.

section 88.

Hon. P. Ramsey: I move the amendment to

section 88 standing in my name on the order paper.

[SECTION 88, by deleting the proposed

section 47 and substituting the following:

Right to search for tobacco

47 If it is impracticable to obtain a warrant, and a peace officer has reasonable grounds to believe that

(

a) tobacco is unlawfully possessed or kept, or possessed or kept for an unlawful purpose, or

(

b) there are records or any other thing that will provide evidence related to tobacco that is unlawfully possessed or kept, or possessed or kept for an unlawful purpose,

the peace officer may, without a warrant,

(

c) enter and search in any place or premises, other than a residence, for tobacco, records or any other thing referred to in paragraph (b), and

(

d) stop a vehicle, vessel or aircraft, and search for tobacco, records or any other thing referred to in paragraph (b).]

Amendment approved.

Section 88 as amended approved.

section 89.

G. Farrell-Collins:

Section 89 is an amendment to

section 49(1) of the Tobacco Tax Act, and if one goes down to subparagraph 1, the second-to-last line, this is similar but not identical to some of the other provisions we saw earlier in the bill. In this case it requires the . . . . I'll just read the whole section: "If a peace officer stops and searches a vehicle, vessel or aircraft, or enters and searches a premises or any other place under

section 47 or 48, the person in charge of the vehicle, vessel or aircraft or the owner or occupant of the premises or other place must give the peace officer all reasonable assistance in connection with the stoppage, entry or search."

Again, while not identical, it sounds very similar to some of the requirements to cooperate that existed in a number of other sections of this bill prior to amendment by the government. I would be anxious to hear the minister's rationale for requiring that, especially when subsection (1.1) really describes what the person can't do. And again, the wording, although not identical, is similar. The person must not "hinder, molest or interfere with a peace officer" or "attempt to prevent a peace officer from doing anything that the peace officer is authorized to do under this Act."

It seems to me that sub 1.1 proscribes what you can't do, and I don't know why subsection 1 requires the person to give this very nebulous "all reasonable assistance to . . . . " I have a concern with that. You don't need one if you've got the other. I think it's unclear and could put individuals in an uncomfortable position.

[1640]

Hon. P. Ramsey: I've just been comparing the Tobacco Tax Act to the wording in Bill 3 here. At least my scan of it and staff's scan of it show that there is no amendment to the act being proposed under subsection (1) of

section 89 of this bill. The wording is identical to what exists in the legislation now. No changes are being proposed.

Nor is there any change to item (

a) under (1.1). That is the identical language. So the only real change here was in (

b) and was an attempt to deal with . . . . The way

section (

b) read was really requiring people to incriminate themselves by providing "all information relative to the stoppage, entry or search that the peace officer may reasonably require." That was self-incrimination, and so that has been amended. That's the only intent of this section.

G. Farrell-Collins: Well, perhaps it should be amended further. Perhaps the error has been there for longer than we know. It may or may not have been a problem in the past. I don't know how long the previous amendment has been in existence or the previous provision has been in the act.

It would seem to me that one could make this a very simple

section by essentially omitting everything after the words "section 47 or 48" and just following it through. So it would read: "If a peace officer stops and searches a vehicle, vessel or aircraft, or enters and searches a premises or any other place under

section 47 or 48 a person must not" -- (

a) and (b).

The reason for that is that it clarifies for the government's purposes . . . . Subsection (1) isn't really drafted all that well anyway, because it only requires "the person in charge of the vehicle, vessel or aircraft or the owner or occupant of the premises" to give . . . . It doesn't require someone else who

[ Page 15451 ]

happens to be there or happens to be a passenger. It doesn't apply to anyone on board the aircraft who isn't in charge. I assume that would be the pilot in command. Anybody other than the pilot in command would not be considered to be in charge; therefore they're free to not provide all reasonable assistance.

I think what the government is really trying to do is contained in the meat of the section, which is subsection (1.1)(

a) and (b). If we were to just end it after 48 and roll in the other and put it all together as just one

section with an (

a) and (b), it would be far clearer, more proscriptive and give the government more control and clarity as opposed to sort of two-status . . . . Currently, as this is written, there are sort of two categories of people there. There's the person in charge, who has some duties, and then there are all the other people that have other duties. I'm not sure that's what the government's intent was in the first place.

Hon. P. Ramsey: I'm not sure I want to enter into a protracted debate on subsection 89(1), since this is the existing legislation. We could well consult on it. Legislative counsel have advised us that there are really two different criteria here. Of the person in charge of the vehicle, vessel or aircraft, the act requires that reasonable assistance be provided to the police officer. Subsection 89(1.1) does the reverse and says that any person around, whether they're operating or not, mustn't "hinder, molest or interfere." It doesn't say anything about reasonable assistance. So they are really two different tests.

I recognize that we could debate whether it's ideal. Legislative drafters have said that there are two, and the distinction between them is important.

[1645]

G. Farrell-Collins: I also won't belabour it, and I'll take the minister's advice on it -- that there's a need for that. I'm not sure what it is, but one can speculate. If it's required to have two classes and two requirements or duties for them under the act, then I'm willing to accept that, although I do think it would be clearer if it were changed. But if there's a need for it -- in the absence of a real explanation as to why, other than he has been told so -- I'll accept the minister's word on this one.

Section 89 approved.

Sections 90 to 96 inclusive approved.

section 97.

D. Symons: On

section 97 -- the British Columbia Ferry Corporation Debt Extinguishment Act -- I note that it's dated and that they're going to take over the debt of the corporation up until the date of March 31 of this year. I am wondering if that is the complete debt of the corporation. A lot of this debt was concerned with the construction of the fast ferries and other things. I am curious whether that will include all the construction costs of the fast ferries that might occur after that date. Or is it simply that that's the cutoff date? At that date, what debt is left with B.C. Ferries?

Hon. P. Ramsey: The $1.08 billion is net of unamortized premiums, discounts and related sinking funds. The total amount of gross debt being forgiven is $1.13 billion. That is substantively all. There are some debts that remain with B.C. Ferries -- some unamortized debt. I think the easiest way, rather than going back and forth here -- unless the member wishes to -- is simply to have staff brief him on what debt remains with B.C. Ferries.

D. Symons: Yes, I'd appreciate that at another time rather than here, as you say, because I have some interest in that. Still on that thought, however, there are three fast cats up for sale right now. According to the minister responsible for Ferries, somehow there may be $120 million -- $40 million times three. Will that come back to the treasury, or will that go back to B.C. Ferries and give them a heads-up, then?

Hon. P. Ramsey: Moneys from the sale of the fast cats will be retained by B.C. Ferry Corporation.

D. Symons: So basically, if there are outstanding obligations due to the ferry construction and so forth, this will tend to mitigate those expenses for B.C. Ferries, then. One concern I have with this particular -- what I'll refer to as a government bail-out, because it's simply taking the debt obligation away from B.C. Ferries and putting it on the people of British Columbia by bringing it back into the government . . . . [Applause.]

Obviously I have an agreement here. One concern I have, though, is that I hadn't known -- and maybe the minister can confirm this -- that there is some sort of management plan put in place so that B.C. Ferries will not move itself again into the situation that we're now looking at on this particular

section of this bill.

They are now looking at going into some more capital programs and other programs of the ferries -- I think somewhere around the neighbourhood of $400 million. That would seem to be moving the Ferry Corporation back into the situation that today we're bailing them out of.

I'm wondering if you have insisted -- before you go into this program of bailing them out of the previous debt they have -- upon some program, debt management plan or business management plan being in place so that we will not get to the stage where B.C. Ferries will have increasing and increasing debt, and they'll be more and more unable to take care of the debt-servicing charges.

[1650]

Hon. P. Ramsey: First, let's deal with the issue that the member raised. B.C. Ferries has been told very clearly that it must not assume a debt, even for very needed facilities such as the ones that the Ferry Corporation announced recently, which it cannot service through its own revenues. We will be in Treasury Board monitoring this very carefully.

As the Ferry Corporation said when it released its capital plans, the first year of that has been approved by Treasury Board. That's the extent of the approval, and we'll be looking very hard at subsequent years.

D. Symons: I guess we've had those assurances over the last five years as the Ferry Corporation went more and more into debt. We found out through the auditor general that there didn't seem to be any monitoring of the debt. They simply kept on adding money into the cost of the fast ferry program primarily but also other projects that the corporation went into.

[ Page 15452 ]

I may be heartened a little bit when you say you're going to do it year by year, because you've now given the first-year funding -- that they will be able to handle that. You're going to look at this year by year, and you'll be assessing, I suspect, much more thoroughly than had been done previously to see that they are able to handle the debt. Is that the understanding I was given?

Hon. P. Ramsey: Yes, they are.

M. Coell: I wonder if the minister could break down for me the debt obligations not to exceed $1.08 billion. How much of that money is for operating costs over the past -- I would think -- decade, anyway? How much was expended on capital costs such as the fast ferries?

Hon. P. Ramsey: I regret to tell you that I don't have that information with me in the chamber. I did at one time have it in my head when we announced the debt recision of fast ferries back in February, but memory has failed. There are staff watching now. I'll seek to have them bring it into the chamber as quickly as possible.

M. Coell: The point I wish to make -- and I appreciate getting those numbers -- is that a good portion of that, now debt retirement, is operating costs that have accumulated over the years. The point that I want to make to the minister is that we're now having to borrow money to cover operating costs that we've spent just to run the system. I suspect that you're probably borrowing it over a ten-year period and paying interest on operating costs of probably 6 to 7 percent over a ten-year period, which probably will come close to adding another 50 percent to the cost of this.

So in retiring a debt for operating costs, you're actually paying twice for the operating costs of something we've already done. I don't think that sits well with most of the taxpayers. I'll be interested in hearing the breakdown of operating costs, so I can estimate the interest cos