1989 Legislative Session: 3rd Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

WEDNESDAY, APRIL 26, 1989

Afternoon Sitting

[ Page

6367 ]

CONTENTS

Routine Proceedings

Ministerial Statement

Organ donation. Hon. Mr. Ree –– 6368

Mr. Perry

Oral Questions

Fish-processing regulations. Mr. Harcourt –– 6368

Mr. G. Hanson

Mr. Gabelmann

Committee of Supply: Ministry of Attorney-General estimates. (Hon. S.D. Smith)

On vote 13: minister's office –– 6371

Mr. Sihota

Mr. Rose

Mr. R. Fraser

Mr. G. Hanson

The House met at 2:07 p.m.

Prayers.

HON. MR. RICHMOND :

It's indeed a pleasure for me to introduce some longtime friends and

residents of Kamloops, now retired and living in Celista. They're

visiting this wonderful city and are guests in the gallery. I would

like the House to welcome Joan and Archie Phillips.

MR. CASHORE :

Mr. Speaker, visiting in the gallery today are two individuals who have

provided outstanding leadership in the area of the environment and

wilderness preservation — preservation of our parkland. I would

like the House to join me in welcoming Colleen McCrory and Grant

Copeland of the Valhalla Wilderness Society.

MR. PELTON :

Hon. members, on behalf of our Speaker, I would like to introduce a

couple of gentlemen here this afternoon from the city of Vancouver, Mr.

Ernest Hui and Mr. Lyall Knott, and would ask that you make them

welcome, please.

HON. MR. VEITCH : In the gallery

this afternoon from the great Moscrop Senior Secondary School in

Burnaby, in the great constituency of Burnaby-Willingdon, I would like

to introduce to the House today a group of 29 grade 10 students. They

are led by their teacher, Mrs. Morgan, and they are in the building

today conducting a debate entitled "The Destiny of British Columbia:

Confederation or Annexation." Those history buffs in the Legislature

will realize that that debate occurred from 1866 to 1871. With this

group today is a very special young person who worked as a work

experience student in my office during the last election campaign,

Farah Nazarali. I would like the House to bid them all welcome.

MR. PERRY :

I would like to second the welcome to those two special guests from New

Denver, Colleen McCrory and Grant Copeland, who have more to do than

anyone but a few others with the Valhalla Provincial Park.

would like also to introduce to the House, if she's here now, the new

legislative assistant to me and the first member for Vancouver-Point

Grey (Ms. Marzari), Arlene McAuley. She is a very welcome addition to

the Legislature.

HON. MR. REID : It gives me a great

deal of pleasure to introduce today two very prestigious people, both

past governors of Kinsmen District 5, both very dedicated to the

community's greatest needs: Rich Coleman from Aldergrove and Jim Watson

from Port Coquitlam. Would the House please welcome these two gentlemen.

MS. EDWARDS : Japan, as a nation, is celebrating its international ice

hockey diamond jubilee — 60 years of ice hockey in Japan. In honour of this,

Japan is having an invitational hockey meet in the city of, I believe, Hachinohe.

They have invited 14 teams from throughout the world, and the one Canadian team

invited is the Cranbrook peewee team. I would like, when I send them a telegram

when they begin play on the 30th, to say that all of the Legislature joins me

in offering congratulations.

HON. MRS. JOHNSTON :

I stand to speak as the minister responsible for sports. A very

important announcement has been delivered to my office which I feel

should be shared with all members of the Legislature. Informed sources

have revealed that the team captained by the hon. Speaker of the

Legislative Assembly defeated the team of lightweights purportedly

headed by the second member for Boundary Similkameen (Mr. Barlee) at

tennis at the Oak Bay bubble on April 25 and 26, 1989. When

interviewed, the second member for Boundary-Similkameen conceded

vanquishment and promised to abide by all rulings of the Speaker in the

future.

MR. G. HANSON : In response and in fairness,

it should be duly noted that the second member for Boundary-Similkameen

used a gold-panning thing instead of a tennis racquet.

HON. MR. PARKER :

I'm pleased to introduce to the House today Mr. Norman Slavik,

president of Norvik Timber Inc., and Mr. Jim Watson, chairman of the

board of the Man in Motion Society. With the cooperation of my

colleagues the Minister of Regional Development (Hon. Mr. Veitch) and

the second member for Vancouver-Little Mountain (Mr. Mowat), we have

been working over the last several months with Norvik to establish an

alder-manufacturing plant in the province. We are pleased to see that

our discussions have brought together all the necessary elements for

Norvik to purchase the Fletcher Challenge Tilbury sawmill. When this

project is completed, approximately 90 sawmill workers presently

employed in the Fletcher Challenge Tilbury operation will be employed

with Norvik. They will be upgrading and modernizing the plant into a

value-added manufacturing facility that will be operating on alder, and

will hire additional workers, many of whom will be disabled. I would

like the House to please make them welcome.

MRS. GRAN :

In the members' gallery today is a very special lady from

Esquimalt-Port Renfrew who I would like to pay tribute to. She recently

retired after over 30 years of looking after geriatric patients with

the kind of love and compassion that you seldom see. She raised six

children and supported them on her own. Would the House please welcome

my mother, Hilda Masson.

[ Page 6368 ]

Ministerial Statement

ORGAN DONATION

HON. MR. REE :

On Monday, my colleague the Minister of Health (Hon. Mr. Dueck) clearly

outlined the importance of organ donation and the need for all British

Columbians to carefully review their feelings about organ and tissue

donation. Unfortunately, at that time I was called away to Toronto and

could not make a statement.

In support of the organ donor

program, our Premier launched the B.C. organ donor registry in August,

1988. The registry operated by the motor vehicle branch of my ministry

records the names of all those who wish to be organ donors. The

registry, accessible to the British Columbia Transplant Society, gives

them an indication of an individual's willingness to be a donor.

[2:15]

When an individual's driver's licence is up for renewal, he or she

is sent a "Gift for Life" pamphlet to give them time to consider

becoming an organ donor registrant. When individuals arrive at the

motor vehicle licence office, they are asked if they wish to be donors.

Upon their consent, they are included in the registry.

Research

tells us that many people will volunteer to be donors if they are only

asked. Once you have registered at the motor vehicle licence office,

you receive a licence with the words "Organ Donor" printed next to your

photograph.

Almost one-third of all organ donations occur

as a result of sudden death from motor vehicle accidents. The licence

an individual carries can serve as a signal for the doctor and the

family of his or her wishes. Since August 1988, over 80,000 British

Columbians have made the choice to register. British Columbians have

shown, once again, that they care and are willing to make the difficult

decision to register as organ donors. I wish to do all I can to help

other British Columbians make the same decision.

In 1988 we began issuing a new tamper-proof security driver's licence and

a B.C. identification card. Under our present program of asking each driver,

upon renewal, if they will become an organ donor, it will take five years to

fully canvass all drivers of this province. As an incentive, commencing May

1 and continuing for six months, anybody wishing to replace their driver's

licence or B.C. identification card for the new tamper-proof security card may

do so without paying the $10 replacement fee. They may do this by registering

as an organ donor at any motor vehicle licence office. The new card will have

the words "Organ Donor" imprinted thereon.

wish to stress that it's only by attending a motor licence office that

a new tamper-proof security card can be obtained. Also, the forgiveness

of the fee applies only to the replacement card. If the individual

requires other services such as change of address or renewal, they will

be required to pay the usual fee This offer is one way of thanking

those who have made the important choice to support the gift of life

program.

To ensure that all British Columbians — not just drivers —

can register, we have developed an organ donor registry card which can

be mailed in by anyone who wishes to register. This card has been

included in the "Gift for Life" pamphlet and is available at all motor

vehicle licence offices, Autoplan agencies, health units, government

agent outlets and hospitals.

Mr. Speaker, since a kit

developed by the Ministry of Health and my ministry has been made

available to all MLAs, I hope they will also be available at their

constituency offices throughout the province and that they will support

this program.

The Premier, the Minister of Health and I,

just prior to the sitting this afternoon, signed up as organ donors. At

this time and until 5 o'clock this evening, staff of my ministry will

be in the Hemlock Room downstairs, where any member of this chamber or

any member of the media may also go and sign up as an organ donor and

receive, of course, the tamper-proof security driver's licence.

The

proof of the importance of organ donation can be seen in faces, the

faces of the family of the recipient of the recent heart and lung

transplant performed at Vancouver General Hospital last week. My best

wishes to that family, and my encouragement to others to register as

organ donors.

MR. PERRY : I am delighted by the

announcement and by the fact that the government has seen fit to deal

with this issue on two occasions this week, which I think is

appropriate. I would just like to say that I canvassed members of our

opposition caucus, and many of us have already signed up. Our staff in

the NDP caucus have been asking how they can sign up as organ donors as

well, and I will be informing them of the opportunity this afternoon

between two and four, which I assume is open to them as well.

HON. MR. REE : That's 2 o'clock and 5 o'clock.

MR. PERRY : Wonderful.

I'd like to commit myself as well to writing to the Canadian Medical Association Journal

to inform the rest of the physicians of Canada of the initiative taken

in this province, which I think is a wonderful example for the rest of

the country.

Oral Questions

FISH-PROCESSING REGULATIONS

MR. HARCOURT :

I have a question to the Premier. Today the federal government

announced changes to the fish-processing regulations which would lead

to the destruction of the B.C. fish-processing industry at the cost of

millions of dollars and thousands of jobs. Can the Premier inform this

House that he is now prepared to amend provincial legislation over

fish-processing and buying to protect those B.C. jobs?

[ Page

6369 ]

HON. MR. VANDER ZALM : We have had discussions before today

with Mr. Crosbie and others in the federal government regarding this

matter. Yesterday I also spoke to Mr. Crosbie and urged him to come out

here today with Mr. Oberle and explain to us just exactly what the

government in Ottawa entered into with the U.S.

After a

meeting this morning with Mr. Oberle, Mr. Crosbie and the ministers

responsible in government and getting the details from him, I am

terribly disappointed with what has taken place so far. It doesn't go

far enough. We obviously now will have a landing requirement for salmon

and herring. There will be provincial buying stations, and anyone,

regardless of where they're from, will need to deal with these buying

stations. That's one way of ensuring that there's proper conservation

and proper management of the resource.

But when you're

dealing with herring, you're dealing with more than just the herring;

you also must consider the roe. Simply taking account of herring, or

weighing the herring, doesn't go far enough. So we need to have a means

of processing the roe right here in British Columbia — eviscerating, taking out the roe —

in order to have a proper means of ensuring that we're managing the

resource and conserving the resource for the industry and for the

people of the province.

This morning Mr. Crosbie and Mr.

Oberle assured us that before the end of June and before the herring

season, they will take the necessary steps within GATT to make certain

that we protect that right of being able to process the herring in

order to remove the roe, as a part of that conservation and resource

management process.

Based on that assurance, we're willing

to see what happens as a result of what they do and how they do it

before the end of June. Several suggestions were made. However, they

must be within GATT, because we don't want to be faced with this again

and again, or we'll have a totally uncertain industry. So it has to be

within GATT; we were told it could be done within GATT. It will be done

within GATT before the end of June and before the next herring

season — food herring in the fall and roe herring in the spring of next year. It will be done before that.

the meantime, we've made our displeasure known to the federal

government, with the fact that they hadn't gone far enough. We'll await

their further decision.

MR. HARCOURT : Mr. Speaker,

to the Premier. Your government walked out of the talks with the

Americans three months ago claiming federal incompetence. We'd like to

know what specific measures you've taken since that time to protect

these B.C. jobs and these millions of dollars that are going to be lost

HON. MR. STRACHAN : Give him the long answer this time, Mr. Premier.

HON. MR. VANDER ZALM : No, Mr. Speaker, I don't think I need to be too long in my answer; it's relatively simple.

we took the approach as outlined by the Leader of the Opposition and

said we were going to forget about GATT, free trade and whatever

agreements happen to exist between nations or between various groups

within the world economic community, not only would we endanger the

whole of the fishing industry but we would endanger the forestry

industry, the mining industry and the manufacturing industry. We would

irresponsibly be putting every job and the future of every British

Columbian at risk. Therefore we in government cannot take an

irresponsible position. We have to act responsibly in these matters.

MR. HARCOURT :

The Premier just said they haven't done anything except sell out the

lumber industry and the fishing industry in the last year and a half.

In November 1987 your fisheries minister said that if the free trade

agreement was going to harm the fish-processing industry, we would

reassess our support of the free trade agreement. Mr. Premier, are you

prepared with this sellout by John Crosbie, rolling over Tom Siddon, to

reassess your support of this free trade agreement?

HON. MR. VANDER ZALM :

I think perhaps if the Leader of the Opposition has questions to ask of

members on this side, he should get the information in order to

properly ask the question in order for us to provide the necessary

answers, because he's obviously not aware — and I would suggest he

do some homework before he comes to the House — that this is not a

free trade matter but a GATT matter.

MR. HARCOURT :

Then why is it that all of the Maritime premiers were able to take care

of their fish-processing industry and you left ours out to dry?

HON. MR. VANDER ZALM : It's easier to deal with ignorance than with irresponsibility, so I think I can answer this question fairly easily.

The

reason that the matter of fish was dealt with differently for the east

coast as opposed to the west coast is that during the time a free trade

agreement was being negotiated there was already a GATT application in

process. It's this GATT application that is now being dealt with.

The

Leader of the Opposition is still confusing free trade with GATT. He's

obviously not aware that if we do not act within the provisions of

GATT, then every country could in turn retaliate against us. The

retaliation — which could come from the U.S., obviously —

would be or could be considerable. If we were to act irresponsibly and

fly off the handle in such a way as has been suggested by the Leader of

the Opposition, then we would be endangering not only the fishing

industry — which I and every member on this side wish to see

maintained in this province, and which we will fight to see

maintained — but we would be risking forestry, mining,

manufacturing, all other forms of industry.

[ Page 6370 ]

We owe it to our people, to our children, to our children's children, to act responsibly in this matter.

[2:30]

MR. G. HANSON : A question to the Minister of Agriculture and Fisheries.

is apparent that the Premier doesn't understand that what we're

fighting for is to protect B.C. jobs in the fishing industry. I want to

ask the minister what specific proposals he has advanced to protect

jobs. Fish could be trucked to fish processors at Bellingham in the

United States. Fish processing ships from the United States could come

into our waters and process fish. What steps have you taken to Stop

that?

HON. MR. SAVAGE : Just to correct the statement

of the Leader of the Opposition, first, that nobody had attended a

couple, we did have staff at every meeting in the joint negotiating

process.

To answer the question: what process have we

taken? We do not license processing vessels in this province. We have

not licensed them. Further....

MR. MILLER : You haven't refused to, either.

HON. MR. SAVAGE : I beg your pardon?

MR. SPEAKER : Order, please.

HON. MR. SAVAGE :

We've never licensed one. On the other occasion you asked what we have

done to protect, you said, jobs. To use that term is not GATT

consistent, as the opposition well knows. We have stated very clearly

that we are, as a government, coming wholly on-side with the Fisheries

Council, the fishing industry and the UFAWU, supporting exactly what

they're asking for. This government has shown leadership in that

respect, and I commend the Premier and all the members of cabinet for

doing so.

MR. G. HANSON : That minister was asked for

regulations on the landing and evisceration of salmon and herring over

a year ago on the floor of this House. Why did it take you over a year

to do that?

HON. MR. SAVAGE : The jurisdiction is federal for landing requirements.

MR. G. HANSON :

I want a specific response to this question: what action will be taken

to stop processors from loading up fish in British Columbia and

trucking them into the United States for processing?

HON. MR. SAVAGE : That question was answered previously. All licences have to be issued by this government.

MR. GABELMANN :

I have a question for the Minister of International Business and

Immigration. Several months ago, when the minister's representatives

were in Washington negotiating together with Ottawa over this same

issue and the talks broke down, the minister's representatives walked

out of the meetings. Why didn't the minister's representatives walk out

of the meetings with John Crosbie and issue a statement yesterday?

HON. J. JANSEN :

I'm kind of curious as to the line of questioning here, because if

there's one issue we've worked on very closely with industry, it's this

entire question of getting landing requirements and getting

requirements regarding our industry. As the member opposite knows, we

have worked on trying to resolve a number of these issues and trying to

ensure that the industry and the conservation and management, as the

Premier has indicated, is protected. Perhaps the Premier has answered

most of the questions in this regard and I can defer to the Premier to

carry on.

HON. MR. VANDER ZALM : Perhaps this may clarify it for everyone in the House. Most here — and certainly all British Columbians —

will remember the many debates and arguments during free trade. I can

remember the NDP saying: "We don't need free trade; we have GATT."

Today we have a decision by GATT, and where is the NDP, the wafflers?

They are on both sides of the fence, as always. They can't make up

their heads where they want to be. They're no place at all. They are

living in the past. They're a bunch of has-dones.

Interjections.

MR. SPEAKER : Order, please.

MR. GABELMANN :

During the FTA negotiations, the Maritimes and Atlantic Premiers made

absolutely certain that their position was well protected in respect of

GATT under the FTA. British Columbia did not even show up to protect

its own position. My question to the Minister of International Business

is: what steps has he now decided to take to ensure that these federal

regulations will not be in place and, in fact, that proper regulations

will be put in place by the federal minister at our insistence —

at the insistence of all the people involved in this industry: the

unions, the employers and all those many thousands of people who work

there? What is the British Columbia government going to do to make sure

those regulations are appropriate and effective?

HON. J. JANSEN :

I don't know how many times we have to give the message over there. We

have talked about this with the industry on a regular basis. We have

put in place our position to the federal government. The federal

government has given back a number of areas of regulatory response that

are required. The Premier has indicated — and I repeat — that

we are disappointed. We didn't get the number of areas that we wanted

to see, particularly in grading and the herring issues, and we will

continue to represent those. We hope that eventually we can see further

resolve in these areas.

MR. HARCOURT : Mr. Speaker, I

stand under the provisions of standing order 35. I move that the House

do now adjourn to discuss a matter of urgent

[ Page 6371 ]

public

importance: namely, the April 25, 1989 joint announcement of new

federal regulations, done by the Ministers of International Trade and

Fisheries and Oceans to permit the export of unprocessed B.C. salmon

and herring.

As my motion indicated, I rise to seek leave

for the adjournment of the House for the purpose of discussing a

definite matter of urgent public importance; namely, the threat to the

B.C. fish processing industry and the jobs of about 6,000 British

Columbians — many of them women — as posed by the federal response to the GATT ruling.

The

matter is urgent, because if we are to stave off his federally created

disaster, we must put up a united front against Ottawa and let them

know that their capitulation to the American demands is absolutely

unacceptable to British Columbians. With the watering down today of the

federal landing regulations, it's clear that no progress has been made

in the last three months to protect B.C. jobs.

The

conditions and concerns that prevailed in January prevail today. There

is no other immediate or timely parliamentary opportunity to discuss

this. We need to discuss it today.

HON. MR. RICHMOND :

On a point of order. Mr. Speaker, if it will assist the Chair, I have

just a couple of points. First of all, I think that the Leader of the

Opposition's motion is flawed in that it says "a joint announcement of

new federal regulations," and we would like clarification of that.

Secondly,

I would submit to you, with all due respect, that the debate on this

issue has just taken place in question period, and that the reasoned

response of the government clearly prevailed.

MR. SPEAKER : I thank the Leader of the Opposition for giving me advance notice. I will take this under advisement and report later today.

Orders of the Day

HON. MR. RICHMOND :

Before we get on to Committee of Supply, I would ask leave of the House

for the Select Standing Committee on Agriculture and Fisheries to meet

this afternoon as requested.

Leave granted.

The House in Committee of Supply; Mr. Pelton in the chair.

ESTIMATES: MINISTRY OF

ATTORNEY-GENERAL

On vote 13: minister's office, $254,015 (continued).

HON. S.D. SMITH :

I know that members opposite are prepared with a number of questions

that they want to send along today. While I am waiting for some staff

to assemble, it would be appropriate for me to advise the House of some

of the things taking place within the ministry, particularly as they

relate to the office of the Crown counsel in the criminal justice

branch of this ministry.

Upon assuming this responsibility,

I said it was my view that we ought to buttress the resources of the

Crown counsel's office to ensure that the Crown counsel's office

understood its role in the criminal justice system. It would be one

where we had a considerable number of people on contract — be they

fixed-term contracts or ad hoc Crown counsel appointments — and also

the Crown counsel's office itself would be a place where people might

aspire to develop a continuing career in the public service.

One

of the most important moves forward in that regard was the appointment

of Mr. Bill Stewart as the ADM responsible for the criminal justice

branch. Mr. Stewart has high regard throughout the system, not only by

members in the Crown office, but also by those many members in the

defence bar with whom he has come into contact, as well as members of

the judiciary throughout the province of British Columbia who know of

his work and his ability to lead within that Crown counsel system. So

it is the case that in the budgetary allocation this year there are

more resources, both in terms of funding and in terms of personnel, to

improve the service levels and the ability of the Crown counsel office

to perform on behalf of the citizens across this province. More about

that will become known, in terms of the specific allocation of those

resources, when we introduce in the next two or three weeks or a month

the specific enactments associated with the justice Reform Committee

report.

[2:45]

As well, I would like to apprise members of the House that during

the next two days the Crown counsel of British Columbia are having a

conference of some 250 members. They have chosen to hold that

conference in the city of Kamloops. The conference is going to deal

with a number of issues which I think are important not only to them

but to many members of our community at large. There will be a session

dealing with how one approaches and works with witnesses, particularly

children, who are involved in matters relating to cases where there is

a prosecution of sexual assaults.

It is probably one of

the most challenging areas of all for the Crown office, because often

the evidence of the witness is obviously critical to the advancing of

charges and putting fairly before the courts the circumstances and

information that has been collected by policing agencies. As well, that

has to be done in a way that, above all else, shows a certain

sensitivity to the age of the witnesses and the traumatic effects that

may impress on those witnesses simply as a result of their being in the

courts to begin with in that kind of a trial.

In addition

to that, workshops will be held during this conference that will deal

with three recent Canadian cases: the Thatcher matter out of

Saskatchewan; the Nelles matter in Ontario; and the Marshall matter

from Nova Scotia. The focus of those workshops will be on the issues of

ethics and the liability, or potential liability, of Crown prosecutors,

associated with their

[ Page 6372 ]

work,

and the focus of that will be in relationship to those three relatively

high-profile cases. In addition to that, there will be a number of

other workshops dealing with jury addresses and matters involving

impaired driving and the admissibility and

interpretation of various

kinds of evidence.

I would like, on my own behalf, to thank

Jean Connor, who is one of our senior and very outstanding Crown

counsel. In addition to her many other functions, she has taken on the

task of organizing this very worthwhile conference that is going on as

we speak in the city of Kamloops. I will have the pleasure of

addressing the 250 delegates at some time over the next couple of days.

That said, we'll carry on.

MR. SIHOTA : I will be

commenting a little bit later on with respect to Crown counsel and some

of the experiences in that office, and also in relation to the

difficulties with sexual assault. We may, depending on how we proceed

today, get on to those matters fairly early in the afternoon.

have some thoughts I would like to share with the Attorney-General in

terms of sexual assault and the way in which we handle those matters;

specifically, lessons we have learned from one case in particular that

I want to canvass in some depth with the Attorney-General.

Yesterday,

I started off dealing with legal aid. After I had concluded my opening

comments, some of my other colleagues wanted to speak. In order to

facilitate them, I didn't really get into legal aid beyond duty

counsel. I want to spend some time this afternoon talking about legal

aid funding in particular.

In that regard, I note that the

Attorney-General made several comments — during my absence, in part —

with respect to legal aid, some of which I heard. I had the opportunity

to read it in Hansard again today. It's interesting that the

Attorney-General yesterday in his comments talked about a 56 percent

increase in legal aid funding and omitted to indicate that in the case

of family law alone the cases being handled by the Legal Services

Society still, in numbers, fall below the '82-83 restraint levels, when

all family law cases met the income eligibility standards and were

being handled.

In actual numbers, my information is that

we've dropped the second.... I'm not suggesting that there was anything

intended here, but I think it should be clarified for Hansard and for

the record. If you read the Attorney-General's comments from yesterday

morning on page 8, you get the impression that funds for maintenance

are going up at quite a level, and a level I wouldn't mind seeing. But

it's not true — because the Attorney-General seems to have added

numbers twice —

that they are getting $640,000, as he indicated on

page 8 yesterday, plus another $500,000. It's my understanding that

the $640,000 that is being provided for maintenance includes the

$500,000 that he seemed to add twice during the course of his comments.

Also,

it's my understanding, with respect to the comments he made about young

offenders, that that money is mandated through the federal legislation,

which is then administered through the Legal Services Society. Anyway,

those are just minor points.

Dealing with legal aid, I said

yesterday that I'm going to be building the case that the government

has severely underfunded legal aid in British Columbia over the years

and certainly has not met the standard expected of it, both from the

1984 task force and with respect to the Hughes commission. I want to go

through some of the matters, starting with non-family matters in the

civil realm, to talk about where, as I said yesterday, the government

is not meeting the statutory obligations.

The legislation

is set out to ensure that legal services are available to all those who

don't have the financial eligibility to secure service and are

threatened with a legal problem. But under the legislation, provision

is made, or the desire is expressed, that the service be provided to

individuals when their family's physical or mental safety is at risk,

and when their ability to feed, cloth and provide shelter for them and

their dependents or their livelihood is threatened.

In 1984

the federal evaluation of legal aid identified in their study, which

I'm sure the Attorney-General is aware of, the absence of an office in

a community as a major deterrent to anyone seeking assistance for a

legal problem who may be financially eligible for legal aid. There are

a number of areas in this province where no civil assistance is

available without substantial travel, and some of those areas are

Vernon, Golden, Revelstoke, Invermere, Kaslo, Port Alberni and Sechelt.

My question to the Attorney-General is: when is the government

intending to provide service in those areas I've just enumerated?

HON. S.D. SMITH :

We work with the Legal Services Society to identify the areas in which

resources ought to be directed when we add services, community offices

and so on. As I indicated yesterday, we are working with the Legal

Services Society and presently adding the office component in Terrace,

Maple Ridge and Cranbrook. In addition to that, I have entered into a

whole host of discussions with the Legal Services Society and will

continue to do that on alternative models of providing service in a

number of areas, so that we might better use the resources that we have

to provide a broader range of services around the province in areas

that may now not be served.

Just so that the arithmetic

doesn't get confused here, the $500,000 amount and the $640,000

amount are indeed separate. The $500,000 amount applies to social

service matters for the family obtaining and varying family maintenance

orders, and the $640,000 is for the non-social services.

MR. SIHOTA :

The Attorney-General was talking about alternative models, and I know

that his ministry looked at models in Cranbrook, Maple Ridge and

Terrace for the provision of those services through

[ Page 6373 ]

the

private bar. It's my information that the proposal with respect to that

model in Cranbrook was not met with any degree of universal acceptance,

and similarly in Maple Ridge there wasn't a tremendous amount of

interest in providing that through the private bar.

I'm

just wondering if the Attorney-General could elucidate, then, the

government's intentions in that regard, given the reaction received in

Cranbrook and Maple Ridge — and tell me if I'm wrong on that. Is the

Attorney-General reassessing his view that these services ought to be

provided through the private bar?

HON. S.D. SMITH :

One of the things I have found most comforting — in some senses, I

guess — about my work in relation to legal aid is the tremendously good

relationship that has developed between my office, the ministry and the

Legal Services Society I meet with them frequently, both formally and

informally, and when I say that we're exploring a number of models, I

mean just that. Some will be tried and found wanting, and others

doubtless will be tried and successful. I think it's a good and useful

part of the process, and it will continue. It's very helpful. As I

indicated yesterday, when I think the member wasn't in the chamber, as

much as we have done in substantially augmenting the budget for legal

aid.... I'll go through it again in detail in a moment, all the matters

that we've done with respect to tariff and non-tariff items and the

money that goes in in an ancillary way from other parts of the

provincial budget. As much as we have done in that regard, I want to

see us do more, and we will do more. That's a responsibility I have. I

believe very strongly in the proposition, and I know that the Legal

Services Society does as well, because we've had many discussions in

that regard.

One of the ways that we can best assist in

enhancing the resources available to legal aid.... Some people have the

view that those resources somehow go to fatten up a profession already

too fat; I reject that notion, but it's fairly widely held in our

society, and it knows no political boundaries. I'm of the view that one

of my primary tasks is to be certain that the resources are available

for us to be able to fulfill our commitment and our desire to broaden,

enhance and augment people's access to justice.

In order to

do that, it seems to me important to acknowledge successes where they

occur and not simply to try to diminish the improvements being made.

Certainly the Law Society, too, but I know the Legal Services Society

and I have a good deal of common cause about that. We have put

significant amounts of new resources into providing legal assistance to

people. We've changed the flexibility so that the people at the

margins, the working poor, are assisted. We've provided more

discretionary authority and that sort of thing, but I would certainly

like to do more.

[3:00]

MR. SIHOTA :

I think we'd all like to do more, but I really take issue with the

Attorney-General when he suggests that they've made steps to assist the

working poor. We'll get to that in a minute, the lack of coverage for

clients of modest means. I vehemently, in very strong terms, take issue

with the Attorney-General on that matter. At the same time, I want to

tell him that at the end of all of this, I intend to make some

suggestions to him in terms of how to operate, because I believe that

it's just not adequate for me to say more and more without offering

some suggestions on how you ought to proceed.

Dealing with

this matter of models, first of all, you say that you have reviewed

many of these matters, Mr. Attorney, with the Legal Services Society

and that there are several models. Perhaps you could indicate to me

again what types of models you are actively considering with respect to

the delivery of legal services.

HON. S.D. SMITH : One

of the important components of a process of consultation that I like to

embark on is to not presume that I have all the answers for all the

models. What I have done, in fact, is say to the Legal Services Society

that together we should look at ways in which we can deliver those

services more effectively to the public, number one, and at a greater

ability to use the resources, number two. They've made some suggestions

to me and I've made some suggestions to them, and together we're going

to continue to look at a whole host of ways we might be able to do

those things. When we come to some specific conclusions, then of course

we'll make everyone aware of them. That's the process going on, and I'm

very pleased that they're willing to participate in it, because they

have the same concern as I do that we have to maximize the use of our

resources — and in part that will help us get more resources.

MR. SIHOTA :

I don't think that's much of an answer in terms of what models you're

looking at. That's all I was trying to find out. I know the

Attorney-General has a bias towards making sure these services are

provided through the private bar; he publicly expressed his interest in

doing that to many forums shortly after he was sworn in. I think he

would agree with me that experience has demonstrated that the bar is

resistant to that mode of delivery simply because of what is required.

would like to have heard the Attorney-General — and I will allow the

Attorney-General an opportunity again, I guess — saying he now realizes

that delivery of this type of service through the private bar is not

the best way to do it and that the model we have embraced to date is

indeed better. I will leave that up to the Attorney-General. I don't

want to belabour the point.

I indicated during my earlier

comments that without substantial travel, civil assistance is

unavailable in communities such as Vernon, Golden, Revelstoke,

Invermere, Kaslo, Port Alberni and Sechelt. I don't think this is an

acceptable state of affairs. The Attorney-General replied that he was

trying to remedy the situation, which the government cut back several

[ Page 6374 ]

years ago with respect to the elimination of the three offices in Terrace, Cranbrook and Maple Ridge.

Interjection.

MR. SIHOTA :

That was the implication of what the Attorney-General had to say. If

the Attorney-General does not believe that was the implication, then he

has an opportunity to correct the record, and I invite him to do so.

HON. S.D. SMITH :

Perhaps the best way to correct the record would be to invite the

member to put accuracy on the record in the first place. That would be

a more productive use of our time, particularly when the accuracy is

staring one in the face.

I just want to clarify a couple of

things. With respect to the expenditure of legal services money, the

largest proportion of the service is, of course, spent in the private

bar; that's who does the service. That is the model now used by the

Legal Services Society. I don't have the percentages here, but the

overwhelming proportion of the money that they spend goes to hire

people in the private bar to provide the service The Legal Services

Society and I sit together and try to develop where the resources might

more appropriately go and where the priorities ought to be. I don't

bring to that piece any biases about delivery of service. I try to

bring to the piece some sort of ability to do a decent and honest

analysis and to advise this House in a decent and honest way what that

analysis is so that we can inform people and not in any way cause any

opportunity for disinformation to get out.

There's no

question at all that I want to get more resources for legal assistance,

as I said yesterday. I want to do that not only from the public

treasury, but we're looking as well at some of the other foundations —

that is to say, the Legal Services Society and ourselves working

together. I want as well to do my part to try to ensure that the public

understands and that all politicians in this chamber understand. From

time to time I have listened to several on both sides of the House who

don't see the provision of public moneys for legal aid as an access

issue; they see it as only an issue of paying money to lawyers. Of

course, you do pay money to lawyers, but they somehow see it as a kind

of guaranteed annual income for lawyers rather than as an issue of

access for those who are served by lawyers. That's a real challenge

which I know one will have to face as they seek those additional

resources.

MR. SIHOTA : In terms of more money for

lawyers — let's deal with that very quickly — it seems to me that the

Attorney-General has his work cut out for him. I want to draw his

attention to the debates of the Legislature during my comments on the

budget on the afternoon of April 4, 1989. 1 was talking about the

Premier and his attitude with respect to the provision of legal

services in B..C., and in response to my request for additional

assistance for legal aid the Premier said, if I may quote from Hansard:

"More money for lawyers." On several occasions he indicated that I was

asking for more money for lawyers.

HON. MR. VANDER ZALM : Some lawyers.

MR. SIHOTA :

No, you did say that, Mr. Premier. Don't say you said "some lawyers."

I've got it here in Hansard. The Premier said: "More money for

lawyers." That's the Premier's

interpretation of what legal aid is all

about, and it seems to me that to begin with the Attorney-General has a

selling job to do on the Premier in order to get some of these things

through cabinet. If education begins, it must begin over there with the

Attorney-General correcting what the Premier had to say on April 4.

any event, having made that point with the Premier present, I'm sure he

will recollect heckling me on that point, and I'm sure that now the two

of you will be able to caucus and the Attorney-General will be able to

draw to the Premier's attention the need for the Premier to understand

what legal aid is all about. If he wishes to chastise the Premier in

public in the House I invite him to do so, and if he wants to do it

privately within the confines of the woodshed I invite him to do that

as well. I'll leave that up to you guys to decide.

With

respect to coverage for people of modest means, I guess I should get on

with the point I was trying to make. I disagree with the

Attorney-General. First of all, civil assistance is not available in

the communities that I've outlined without significant travel;

secondly, coverage is not available in a whole realm of civil areas

where it ought to be available for people of modest income.

Coverage

is not available in matters such as foreclosure. There are situations

where people come forward to the Legal Services Society with a defence

to a foreclosure that they're facing. I know the Attorney-General,

during his time as a practitioner, and I myself, during my time as a

practitioner, received many calls from individuals in communities

wanting legal assistance with respect to a foreclosure matter. They may

have a legitimate defence, but the bank has all the resources and the

individual has few, and he cannot secure legal aid. Working people in

this province who can't afford counsel can't get the legal defence they

need on a civil matter to deal with a bank that wants to take their

house away from them within six months, or sometimes less. Surely it

ought to be a priority for government to begin to provide that type of

service.

Nor is legal aid available when the

Attorney-General suggests inroads are being made with respect to the

people of modest means. Nor is service provided with respect to WCB

matters; I elaborated on that yesterday. It is frightening for an

individual to have his stream of income interrupted due to an injury at

work, through no fault of his own, and to have to deal with a

bureaucracy that turns him down — as the WCB often does — and then have

to deal with that massive legal network at the Workers' Compensation

Board and not receive assistance for legal aid.

If you're

affluent, you can do it. When we talk about access to the courts, it

seems to me that legal aid ought to cover those areas where individuals

of modest income don't have access to either an admin-

[ Page 6375 ]

istrative system such as workers' compensation or to the courts in terms of foreclosure matters.

There

are other areas. I think the Attorney-General would agree that in all

our constituency offices we get a fair number of complaints on landlord

and tenant matters. A quick survey of the bar would indicate the extent

to which individuals require assistance in landlord and tenant matters.

Little assistance is available in this area to tenants who wish to

ensure that their premises are in a proper state of repair in order to

resist an eviction application which may be wrongful.

There

are other administrative areas. There is the whole matter of refugee

claims and the area of unemployment insurance and appeals under the

social assistance program. I am aware of several situations in New

Westminster and Vancouver where people have been scoring close to 100

percent in succeeding for their clients through advocacy centres with

respect to handicap allowance appeals. But again, there's no legal aid

provided in that regard, nor is there the broad range of services that

ought to be available in a community.

[3:15]

Someone served with an illegal eviction notice who is receiving UI

at $850 a month often doesn't have a lot of options in terms of where

to go should he be evicted. If that notice is not proper, clearly the

person has a potential remedy, but he can't afford it because of the

inadequacy of legal aid coverage.

I've talked about

matters in the non-fairly civil end. My question to the

Attorney-General isn't as to whether he'll provide these services

overnight, because I don't realistically expect that either; but I

would like to know whether the ministry has made a commitment to the

Legal Services Society to a two- or three-year funding plan to begin to

provide coverage in these areas.

It's great to say that the

government is desirous of making sure that the service is provided, but

the record of absence of coverage, of cutbacks between '82 and '83, and

of neglect with respect to the task force recommendations in '84

suggests that the government has little commitment to beginning to

provide services in these critical areas that other jurisdictions do.

question to the Attorney-General is not so much will you begin to make

inroads, but what types of commitment are you prepared to make to the

Legal Services Society with respect to a financial plan that will see

us getting to that level of coverage so that people know that the

government will indeed deliver those services within a certain time?

HON. S.D. SMITH :

Unfortunately some of these matters were dealt with yesterday. I know

that the member had a lot of work to do outside the chamber, and so I

will try to go through them again somewhat more briefly perhaps than I

did yesterday.

In relation to the issue involving immigration matters, there is currently,

as I said yesterday, a process being developed which is being headed by staff

in the Premier's office working with Canada to develop policies for immigration

matters generally. As part of that, any changes that are wrought with respect

to assistance on these refugee claims, and so on, we would have to make consistent

with that process.

One

of the things that I want to correct for the record is in relation to

the member's comments on the Premier's support for additional moneys

for legal aid. I want the record to know — although I suppose I run the

risk of touching on the outer limits of what is cabinet solidarity when

I say this, but I've never been particularly disinterested in taking

risks, so I will go ahead — is that the fact of the matter is, as I

pointed out before, that there are members on both sides of this

chamber who share the view that funding for legal aid is somehow

fattening up the wallets of a profession that is already seen to be

fairly well off, thank you very much. It is not seen as an issue of

access. Each of us has a responsibility to make certain that we try to

negate that notion to the extent we can and advance the notion that is

au contraire.

When I was able over the last ten months to

get a significant increase in the coverage of legal aid in this

province — and it has been a tremendously significant increase in terms

of inside the system, inside Legal Services Society, money through the

family maintenance enforcement program, eligibility criteria, new

offices opened up, and so on — I gained a tremendous amount of support

for that from the Premier of this province, in my discussions within

cabinet and within caucus, and a very real and full understanding that

that issue is one that deals with access.

When the Premier

in this House, in response to some comments from the member for

Esquimalt-Port Renfrew, asked the member if he was talking about

wanting more money for lawyers, that's precisely the nub of the issue.

When we increased our resources to legal aid, we made certain that the

first thing we did was broaden the coverage and the eligibility; in

other words, put the resources into the services, put the resources

into those areas that were going to help people first, put those areas

into providing new offices, put those areas in together. We asked

ourselves whether, as a matter of priority, we should raise the tariffs

first. Because it's important, and we have raised the tariffs. That's

important. The money that is paid to lawyers is very important, and we

asked ourselves that issue. We asked ourselves: which should we do

first? Should we broaden the service coverage base, change the

eligibility criteria to make that the focus of our initial buttressing

and increase the lift in money to the Legal Services Society? Or should

we make the initial focus the question of more money for lawyers and

increasing the tariff?

You can make the argument for either

one of those propositions. There is no question that there is a great

deal of pro bono work done by lawyers. Lawyers contribute well in this

society to subsidize legal aid greatly. Someone asks the question: "Do

you want more money for lawyers — an increase in the tariff — or do you

want it to reflect an increase in service to people?" It seems to me

that is a perfectly legitimate question to ask.

[ Page 6376 ]

The

point I want to make to the member for Esquimalt-Port Renfrew — and he

should understand, because I think all members of the legal profession

should know this — is that when I went, as I have on three or four

occasions in cabinet, to get additional resources for legal aid, that

was strongly supported by the Premier of the province. To no small

extent, the success in that regard has flown as a result of that

support.

To get to some of the other issues that the member

for Esquimalt-Port Renfrew raised: there are a number of ways in which

I think some of our programs that we are now looking at will go towards

assisting on the civil side, in terms of cost. One of them, obviously,

is the initiatives that have been taken by the Ministry of Labour and

Consumer Services to provide a different system for recovery of damage

deposits, so that people will be able to do that outside the system

they are now doing it in and at some lesser expense.

The

workers' compensation organization is providing more assistance —

advisory people — to claimants who have appeals. Right now we are

examining — and I am very inclined towards giving greater priority to

this, because prior to getting involved in the public service, I was

interested in it and tried to develop one — the provision of pre-paid

legal service plans through the non-government agencies who have some

collective strengths. I sought to do that and indeed initiated a

program like that with the credit union movement on a lawyer referral

service basis. It worked out well and expanded, actually, before I left

the private practice, with a trade union organization that was looking

at it. I know that the Law Society is looking at that.

in our ministry are going to be looking at some very exciting options

available to us to draw together the resources in the community to deal

with legal services on a pre-paid legal plan basis. That would bridge

some of the areas that now are not covered for people who simply don't

have eligibility. But perhaps more importantly, that would provide an

ongoing system on a pre-paid plan basis for those who might even be

able to afford it.

Additionally,

one of the most exciting

things coming out of the changes to the system contemplated by the

Justice Reform Committee report — which we'll see in the next

little

while when I introduce the new Supreme Court Act and other

legislation — is the economical litigation program. The object of

the exercise

there is to reduce, the cost rather than to pay people to go in and do

something and leave the same old system in place; to change the system

around to reduce the cost in a way that will allow people either to go

in themselves — in the case of small business people where they

have

liquidated amounts — or to allow the profession to undertake some

those matters, particularly on the civil side, at fees that bear some

reasonable relationship to the amounts in dispute.

As the

second member for Central Fraser Valley (Mr. De Jong) is well aware, in

many instances someone may have a legitimate dispute but simply doesn't

go forward with it, because they know that at the end of the day

they're going to be paying out more in expenses than they might

actually collect, assuming they're successful. I hope those initiatives

will disclose some currency on the part of the government to look at

some progressive ways to deal with these problems in that area. I

suspect, without knowing the answer, that they may not be sufficient to

satisfy everyone, or indeed the member for Esquimalt-Port Renfrew.

Certainly, we're alive and sensitive to the issue, and we're working at a number of ways in which to improve our system.

MR. SIHOTA :

I'm not suggesting that you're not working at ways to try to resolve

the system. What I'm asking for is a commitment from the government,

because at the end of the day, all these things cost dollars. We need

some kind of commitment on the part of government to enter into some

type of plan to take us towards the provision of these services, as has

been recommended to you in at least one study of the two done. It may

well have been recommended in the second one; I can't remember.

want to address several of the comments that the Attorney-General did

deal with, but I want to come back and ask him basically the same

question.

By the way, since the Premier is still here, let

me say that I was here in the House and the Attorney-General wasn't,

and I can tell you that the Premier pulled out a scratch pad and was

mocking me about wanting more money for lawyers. I would suggest to

you, sir, that it wasn't a matter of the Premier understanding the

nature of legal aid. Of course, he had ample opportunity yesterday and

that day to clarify his position.

All those alternatives

that the Attorney-General went through as a way of addressing some of

the matters that I talked about aren't working, and that's why we are

raising them. If they were working, that would be fine. Let me give him

examples of where they're not working and of how they could be dealt

with.

The first one that the Attorney-General mentioned is

the recovery of damage deposits. I assume — correct me if I'm wrong —

that the Attorney-General is talking about the small claims process

with respect to the recovery of damage deposits. The Attorney-General

may not be aware of this, but the waiting-time in Victoria to get one

of these cases set down is six or eight months. Most people,

particularly in ridings like mine, where many people are in the Armed

Forces and serve this country in that capacity, can't wait six or eight

months to have a damage deposit of $300 or $400 resolved. They are on

their way to Calgary or Halifax or elsewhere.

I assume that

when you talk about damage deposits, you are talking about recovery of

the same through the small claims process. There's a tremendous amount

of revenue that remains fixed in landlords' hands because people just

don't recover, because they don't want to take it to small claims. If

[ Page 6377 ]

we're talking about something different, then correct me.

The

economic litigation program you mentioned is a good program, and I've

already said publicly that I support it. I'm not convinced that it will

do wonders in terms of opening up access to the type of people I'm

talking about. It's a good program for what it desires to achieve, but

it's not going to help a single parent whose income is around $1,200 a

month, who faces an application to have a maintenance order reduced.

It's not going to help that, and contrary to what the Attorney-General

said yesterday, that situation in all likelihood would not be remedied

by the flexible criteria provided.

[3:30]

Secondly, that economic litigation program is not going to help a

separated individual, living in an interior community in British

Columbia, who has a small business that's failing, deal with a

maintenance application when his or her income is $700 per month. It

won't help such people. They can't afford legal counsel, because their

income is $700 a month and they are not eligible for legal aid under

those circumstances. Economic litigation isn't going to help them, nor

is it going to help someone on welfare, living in a community in

British Columbia, who wishes to obtain a divorce and — particularly in

the case of a woman — get on with her life. Economic litigation is not

going to help such people.

Economic litigation is not

going to help an individual who works periodically and sometimes

collects UI, and who wishes to adopt some children, particularly

children of someone he is married to. In those instances, because the

requirement is not urgent, legal aid assistance is not available, and

economic litigation is not going to help that type of person.

would grant to the Attorney-General that the economic litigation

program is a good one, and I would support it when legislation comes

forward to make the appropriate amendments. It will help some people in

some circumstances. It will help somebody deal with debt collection or

builder liens problems — that kind of stuff. But it's not going to help

those kinds of common, human examples that people face, such as I'm

talking about here, which relate to maintenance, adoption and divorces.

Those are things that people experience on an ongoing basis in this

province.

To try to suggest that all this falls under the

rubric of economic litigation is ignoring the fact that legal aid is

not available — as I said at the outset — to those working people of

modest income who can't afford counsel. Therefore they are left on

their own to deal with it, whether it be a foreclosure or WCB problem.

On the matter of prepaid insurance, I agree that it is a good idea. I know

that the Attorney-General in Kamloops and I in Esquimalt entered into those

types of relations — with both, in my instance, trade unions and credit unions.

The more of that we see, the better. I also know, as the Attorney-General I

trust knows, that there are some problems with the super-intendant of insurance

in that regard, and those things have to be worked out, and, you know, we'll

let time run its course. That is indeed one answer. But the examples that I

raise aren't covered by the models the Attorney-General put forward to remedy

problems. They don't touch upon the types of problems that I've dealt

with; they don't deal with a person on foreclosure or a person with those

types of family problems.

any event, the only thing I'm looking for is a commitment from the

Attorney-General, through his ministry, for the 18 months or so between

now and the next election, for the government to enter into an

agreement with the Legal Services Society, a funding formula that will

see a commitment from government to take us toward those task force

recommendations so that we can provide some of those services that

we're talking about. All I would ask is that the government make the

commitment. Like I say, I would talk about the alternatives. We would

be prepared to enter into a two- to three-year program to fund legal

services to the point necessary. I've asked the former Attorney-General

to do that in the last two years, and that hasn't happened, and I guess

it won't happen until we're elected, unless this current

Attorney-General wants to make some commitments.

I've dealt

primarily with the civil end of the claim. You know, there is the

criminal end of the service that requires coverage. Some very serious

crimes do not get covered. A classic example is someone who's facing a

charge of assault causing bodily harm — I've got two cases that I can

refer to here — where a person earns about $875 a month and, again, is

not eligible to have legal aid coverage in those types of situations. I

don't want to belabour the point, in terms of legal aid. I get the

Attorney-General's point that he's trying to do his best, and I can

assure him I'm going to do my best to push the government along, as I

have in the last two years, to begin to recognize the importance of

beginning to deal with the requirement to provide assistance to that

segment of the population that does not have eligibility to legal aid

and hence no access to the courts, and to remedy the problem that those

who can afford it get into the courts.

I do not intend to

make any further comments with respect to legal aid, because I am

mindful of the time and the need to canvass other issues. But out of

deference, I will sit down for a second — maybe longer, I guess — and

allow the Attorney-General the opportunity to respond to those points.

Like I say, I think he's got my point and I've got his, and we'll move

on to other matters. But I'll give him the chance to make a remark or

two with respect to legal aid before I move on to some of the other

matters I want to canvass.

HON. S.D. SMITH : Mr.

Chairman, let me do them in reverse order. With regard to the criminal

matters that the member raised, I quite frankly would have to respond

in the specific. If there is someone who is being denied eligibility,

then if I could get the particulars I will take a look and find out

why. If there's

[ Page 6378 ]

some reason for it that does not accord with the policy of the Legal Services Society, then I'll deal with it.

The

Justice Reform Committee report suggested that over the next three

years we put ourselves in a position to implement the report of the

legal aid task force to bring it up to some of the levels that are

suggested there. We are in fact above the levels suggested by that task

force in some areas now, and we are endeavouring to augment those

services, as I've said several times.

With regard to the

questions that were raised respecting a single mother whose income was

a certain level, looking for enforcement of a court order, a family

maintenance order, I said yesterday that I thought that that was

covered, and I stand by that. If you register your court order with the

family maintenance enforcement program, then the program takes steps to

enforce it. I can't understand why there wouldn't be coverage in that

situation. In addition, that program would respond by providing

assistance in certain circumstances where there was an application for

a variation of one of those orders in certain circumstances, and I

think this would be one of those circumstances. I say that only because

that program of family maintenance enforcement is very much part and

parcel of providing the legal assistance that we want to provide —

through a different program, albeit. It really does greatly enhance and

buttress the legal aid services in this province.

Generally,

we are going to go about fulfilling our desire to extend service and

improve service in a number of ways. A couple of them I have mentioned

with respect to some new programs that we are looking at. Some will be

involved with the Justice Reform Committee; others we are working on

together with the Legal Services Society in terms of finding better

ways to deliver services that we now have.

I must make

clear to the House that we work carefully with the Legal Services

Society in this regard. The priority developed by them — and certainly

endorsed by us — is that you seek to expand the flexibility of the

coverage that we are now providing. That's the first priority — that's

what we are doing. Secondly, you broaden the range of coverage. We

acknowledge we don't cover every situation. It will be the case that

every year someone, I am sure — given the nature of the law — would be

able to stand up and point to a range of services that aren't covered.

I accept that.

To give you some indication of how

fast-moving this is, the member spoke eloquently about the difficulties

of recovery of damage deposit for renters, and the tremendous backlog

that we have in our small claims courts. The person moves to Calgary

and so on, as he said, and they have to wait six months for the backlog

in the small claims court.

I know we are not the best in the world at communicating, but we try our best.

Recommendation 133 of the Justice Reform Committee report, which was released

on November 30, recommended that we remove that damage deposit recovery process

from the small claims division. That was something that I certainly endorsed,

and so did the Minister of Labour (Hon. L. Hanson). That is why on December

29, 1988, the Minister of Labour announced that those changes had been made,

that amendments had been made so that there is a new system for recovering damage

deposits that will not involve the small claims division. That was done by press

release in terms of informing the public. We'll see those legislative amendments

going through the House this session.

MR. SIHOTA :

We may be just dealing with a backlog then. Those cases keep on

dribbling in. I wasn't intending to make any further comments on legal

aid. I want to give the Attorney-General the final opportunity to

comment on it. Now we can move on to other areas of coverage, an area

that is similar, I think, in theme to legal aid, and it may be best to

move on to that one.

It gets back to the equality rights

provisions within the Charter. The heart of the Charter — as the

Attorney-General is aware — is

section 15, where all equality rights

are guaranteed, and which prohibits discrimination on the basis of sex,

age, racial origin, mental or physical disability.

[3:45]

Despite the debate we have had with respect to Americanization of

the courts, that provides individuals with a tremendous level of

protection. Recently I did some research into this matter and became

aware of some issues that relate to

section 15 that I want to raise

with the Attorney-General. If you begin to take a look at who is taking

advantage of

section 15 of the Charter, it's obvious that those

provisions are being utilized not by those you would think would be

utilizing those provisions of the Charter — particularly the minorities

and disadvantaged groups as they are defined in legal parlance — but,

interestingly, primarily by corporate interests. It's companies like

Safeway using it to challenge Sunday-opening bylaws; it's decisions

with respect to marketing boards and the regulation of air landing

fees; it's examples such as the manufacturing of pop cans. Those are

the kinds of cases, to name a few, that come in front of the courts

with respect to

section 15 of the Charter.

A study was

conducted recently by a group out of Ottawa with respect to who is

challenging the equality provisions under the Charter and taking them

to court. That study reviewed the first 600 cases that came up in the

last three years. Of those 600 cases, 44 involved sexual equality — in

other words, about 7 percent of all of the matters that have come

before the courts — and 22 involved other disadvantaged groups. It's

evident from the findings of that study that those who have the most

need for equality guarantees have the least ability to utilize the

Charter of Rights. They don't have the funds for litigation; indeed,

the cost of taking a matter to the Supreme Court of Canada can go into

the millions of dollars. Other provinces such as Ontario have funded

Charter decisions and Charter challenges. Is this province intending to

provide that same ability and opportunity to British Columbians?

[ Page 6379 ]

HON. S.D. SMITH :

As the member probably knows, that is one of the matters in the justice

reform report — which changes will, I've said, be announced in a couple

of weeks. That's a matter of policy consideration. I don't know if the

member was in the House yesterday when I referred to the Newfoundland

case just heard by the Supreme Court which specifically addresses his

problem — or the concern that he raised; I don't know whether he sees

it as a problem or not.

Before I get to that, I want to

clarify again something that comes up. A reference was made to my being

concerned about the Americanization of our courts. just to say it

again, perhaps in a way that will make it more clearly understood, my

concern is about the Americanization of Canadian society. That is what

I have said, and that is all I have said. The courts may very well find

themselves taking on a more American tone, particularly in the

appointment of judges, because of the kind of work they are now doing.

But my concern, which I spoke about at length to a Charter conference

at the University of British Columbia some months ago, is about the

change that will, naturally, be wrought to our society, and the

direction it will go. It will become more Americanized.

think there is nothing particularly earth-shattering about that

statement. That was an understood consequence of the adoption of the

Charter. That's the difference between a parliamentary democracy and

one that has its ultimate test of jurisdiction rooted with the courts.

It's the society that changes The court may change as well, but the

society is what changes first.

The Newfoundland Workers'

Compensation Commission appeal that was heard by the Supreme Court —

the decision was rendered just two days ago — deals with

section 15 of

the Charter. In fact, it restricts those

section 15 applications to the

matters that are enumerated in

section 15, as well as those matters

which might be — and I put it in quotation marks — "akin" to them. It

precisely will not allow

section 15 applications to come forward about

pop cans and this, that and the other thing, which is the member's

concern. That is in fact the position that has been argued by B.C. each

time we've been involved in a

section 15 application.

MR. SIHOTA :

That's not my concern so much as it was an example of what the equality

provisions were being utilized for, in terms of the examples that I

gave. I also gave examples, ones which I'm sure the Attorney-General is

aware of, with respect to things like Sunday-shopping legislation. I

don't think the Newfoundland decision will endeavour to terminate those

kinds of challenges, and that decision itself caused me some concern.

point here is that there are all sorts of groups in society that one

would have thought would take advantage of

section 15, and it's turning

out that they're not, largely because they can't afford to take the

matters to court. The Attorney-General has said that there are some

recommendations in the "Access to Justice" report in that regard. I'm

just trying to find out whether or not this province is prepared to

provide funding to groups who wish to utilize the benefits of

section

15 in front of the courts. Will you either act upon that recommendation

or, apart from that recommendation, provide financial assistance for

groups who wish to take

section 15 matters to court?

HON. S.D. SMITH :

Mr. Chairman, I can't divine why people do or don't pursue a

section 15

matter. But the member is not correct when he says Sunday shopping was

section 15 matter; it was, in fact, a

section 2 matter of the Charter

and related to a person's freedom of conscience and religion.

Our

thrust with respect to

section 15 has been to argue that there ought to

be a relatively confined

interpretation of that matter. I agree with

the member that the Charter itself was not intended to enhance the

corporate interests and the pecuniary interests of the relatively

strong in our society. I understood that the Charter, if it was going

to be anything, was going to be a vehicle by which those who had the

view that their individual rights were somehow being adversely affected

by the collective rights of society could pursue them through the

courts rather than through their legislatures, as had previously been

the case. It is interesting to see, however, how this thing has been

interpreted.

MR. CLARK : It's democracy.

HON. S.D. SMITH : As the second member for Vancouver East says, it's a matter of democracy, and that's quite correct.

The

Charter doesn't make anyone any more or any less free per se. What it

does — certainly in the Canadian context — is impose a Franco-American

system of law upon a British parliamentary system of government. It is

also about power. It's about who exercises the ultimate authority and

discretion to make certain decisions. Previously that had been

exercised by legislators. Now, depending on how activist the judiciary

is, the ultimate power rests with the courts, and that, I believe, will

make our society a more litigious one. I believe that making our

society more litigious is not a particularly welcome model.

MR. CLARK : Unless you're a lawyer.

HON. S.D. SMITH : Unless you're a lawyer. I also believe it makes our society more American. That's the context in which I say what I do.

we examine some recent cases in that context, it's very interesting to

take a look.... I know the second member for Vancouver East is

concerned, and he and I have discussed this several times. Let's just

look at the three big cases in B.C. and see what the decision has done

in terms of power.

In the Sunday-shopping case we had the

interesting situation where Canada Safeway was arguing freedom of

religion. I hope they blushed when they made that argument. The

consequence was that communities like Cranbrook, Williams Lake, Quesnel

and Smithers, who had voted not to have that particular form of

enterprise on the weekends, now have it.

[ Page 6380 ]

Who

does that benefit? It benefits large corporate interests: Canada

Safeway, Overwaitea, Real Canadian Superstore. Who does it adversely

affect? Small business people and the people in the community who

didn't want it. That was done in the name of the Charter of Rights and

Freedoms.

MR. CLARK : Are you blushing when you say that?

HON. S.D. SMITH :

No, I'm not blushing when I say that. Listen, I recognize the difficult

situation I put myself in by arguing the position I take with respect

to the Charter, because it's very unpopular. Politically it is an

unwise thing to do, and I understand that. But I believe we have to

warn ourselves about where we're heading.

Take a look at

the billing-number decision. Whatever you may think of the partisan

decision to have billing numbers — Bill 41, or whatever it was — what

is the consequence of the decision? The consequence is that using the

Charter the most wealthy and powerful profession in our society have

had their economic rights advanced by

section 7 and the adverse

consequence rests with small communities in rural parts of the province

who now cannot be guaranteed an equality of medical service.

Look

at the decision we've just seen in the Dixon case, in terms of

electoral boundaries. Look at the consequence of that. This is not a

partisan thing. The two constituencies that were dealt with were Atlin

and Coquitlam-Moody, by way of example. This Legislature, as a matter

of historical record, has taken the view that the constituency of Atlin

ought to have special consideration in terms of representation in this

House. That is an historic consideration by all sides of this House.

Why is that? Because you can't drive across Atlin from east to west

continuously, even if you want to; from north to south it takes you

goodness knows how long to get up and down it. It is an area as large

as France to serve. It is an area where the largest numerical group is

the Nisga'a and Tahltan people. It is a very difficult area to serve.

It's not like the Victoria constituency, where you can ride your

bicycle to the chamber in the Legislature by day and be home on your

wee, little pillow that night. It is a very difficult one to serve, and

historically that has been taken into consideration by this House.

You

have to ask yourself who is best capable to take into consideration

those kinds of anomalous factors, attempting to give some democratic

expression to people in this society. Is that something that should be

left to judges and lawyers, or should that be left to the Legislature?

[4:00]

Interjection.

HON. S.D. SMITH :

It is not a specious argument, Mr. Opposition House Leader. You see,

the fundamental error that those who supported that change in society

never took into account is that, in addition to giving some expression

and another vehicle through which people can advance their individual

rights against the collective will — and that's what it does — it does

ultimately shift power. It shifts power away from the people through

their elected representatives to appointed judges. It makes your

society more litigious. I don't think that's a desirable route.

So I just take those three examples.

Interjection.

HON. S.D. SMITH :

You were in the House of Commons at the time that Charter went through.

I'll bet you dollars to doughnuts — if I were a betting person, and I'm

not — that no one in that House ever anticipated that

section 7 of the

Charter would be used to advance economic rights for a profession as

wealthy and powerful as the doctors.

Section 7 was never

intended to extend economic rights to groups who already have strong

economic rights. I don't think anyone in the House with a straight face

at that time could, in their wildest imagination, get up.... But that

kind of thing is happening. So you must ask yourself who benefits. In

the case of Sunday shopping, I put to you the proposition that the

beneficiary is the large corporate interest. If there's a beneficiary,

there's also a consequence. The adverse consequence is for the small

business person in small communities.

In the case of Bill

41, the beneficiary is the most wealthy and powerful profession in our

society; the adverse consequence is with medical services for

individuals in small communities. In the case of Atlin constituency,

the beneficiaries are those of us who live in more urban areas, and the

adverse consequence is suffered by the Tahltan and the Nisga'a people.

I don't think that is a desirable result.

MR. SIHOTA :

The Attorney-General is full of doublespeak and double standards when

it comes to talking about the Charter. His whole history of dealing

with that issue is symptomatic of that.

Let's take those

cases one by one and take a look at what the Attorney-General is

saying. Of course, with respect to the Sunday-shopping decision, the

parties that are really injured are smaller communities like Quesnel,

Smithers and Vernon which like to close down operations on Sundays — or

on Wednesdays. I can remember working out of Quesnel when everything

used to be shut down on Wednesdays, because everybody decided that

would be a good day to have a half-day or full day off. Indeed, my

notes — later on we're going to get to Sunday shopping — to myself are

in relation to the vested powers in terms of the large corporate

sector, which the Attorney-General would criticize now, which have

enjoyed access to the Charter in challenging those Sunday-shopping

provisions. The two points were made.

If the

Attorney-General is sincere in terms of his talk about the Legislature

being supreme, then the invitation is extended to him to bring forward

remedial legislation. He's got the ability to do that. In fact, many

commentators with respect to that Sunday-shopping decision —

constitutional lawyers; I don't have their work here with me, but I can

bring it back

[ Page 6381 ]

the House later on — have commented on the ability of the

Attorney-General's department to bring forward remedial legislation.

But instead, the Attorney-General's ministry has chosen to bow to those

corporate interests; instead of fighting them through the legislation

he could bring in, he has decided to vacate the field. If you want to

articulate your supremacy, then bring forward the legislation.

[Mr. Rabbitt in the chair.]

Secondly,

if I'm not mistaken, that decision was not appealed. The other

option — and I stand to be corrected on this — was for

the Attorney-General's

ministry to appeal that decision. If it was so concerned about the

powers that had been attributed to a large corporate interest like

Canada Safeway, it could have exercised its option to appeal. That was

a B.C. Court of Appeal decision, and it's my understanding that you

chose not to appeal. I don't know if you got leave or didn't get leave;

if you didn't, well, that's fine.

By the way, I should say

that I did recognize that as a

section 2 case, not a

section 15 case. I

should have made that clear when I was making my original comments.

That's the situation with respect to Sunday shopping.

Then

you have the doctors'-billings case. Again, many constitutional

commentators have reflected on that decision. Your comments flowing

from that, together with the comments of the good Minister of Health

(Hon. Mr. Dueck).... You have juxtaposed those with your desire to

entrench the right to property, and then have suggested that it is as

close to a right-to-property case as one can imagine. I will bring that

to your attention tomorrow. I don't have the

article here, otherwise I

would.

The point is that the Attorney-General, who talks

about a litigious society and the expansion of litigation in this

country — and his "unpopular position, " as he calls it, with respect

to the Charter — would like to introduce amendments to expand the

ability to litigate into the matter of the right to property. You want

to have it both ways. On the one hand you want to play the politics of

the right to property, but on the other hand you complain about the

litigious nature of our society and your deep concern about the fact

that we are becoming a society that is far more anxious to take matters

before the courts.

Then there is the Dixon decision, which

came down from the B.C. Supreme Court. It's a good decision. It

remedies the intolerable situation in this province with respect to the

gerrymandering activities that you, Mr. Attorney-General, are fully

aware of from your tenure in the former Premier's office.

Interjection.

MR. SIHOTA : You, Mr. Attorney-General — through you, Mr. Chairman — created the problem with electoral boundaries.

Interjection.

MR. SIHOTA :

I'm going to give the Attorney-General a minute. If he wants to listen

to me, he can listen. If he wants to argue, he can wait.

MR. CHAIRMAN : I would ask the member to direct his remarks to the Chair.

MR. SIHOTA :

The Attorney-General could have remedied that situation quite some time

ago by not getting into the incredible entanglement of gerrymandering

we've seen through the Eckardt commission, Gracie's Finger and

Socred-only double-member seats. It is a web that the Social Credit

Party tangled for itself. It's a web that it was politically

ill-prepared to untangle, so the courts have called your bluff. The

sting the Attorney-General feels with respect to that decision tells

him that his party can no longer continue in the back rooms to tilt the

electoral map to accommodate the government's political desires.

Interjection.

MR. SIHOTA :

What I am saying to you, Mr. Attorney-General — through you, Mr.

Chairman — is that if the government hadn't got into manipulating that

electoral map, it wouldn't have been confronted with the crisis it now

has as a consequence of the Dixon decision.

HON. S.D. SMITH : What's the crisis?

MR. SIHOTA :

The crisis is that the government now has a map deemed to be

unconstitutional, and it has to come forward with a remedial map at

some stage in the game.

HON. S.D. SMITH : Is that a crisis?

MR. SIHOTA :

It is a crisis for the Attorney-General and some of his colleagues, who

are ill-prepared to walk into that committee in the Legislature and

simply move the recommendations of the Fisher commission. We all know

that there is an internal crisis in the Social Credit caucus with

respect to the way in which those recommendations affect the political

life of certain members of this House on the Social Credit side.

Our

position with respect to that matter is very clear. We believe that the

principles in Fisher are bang on. It creates a further crisis — if the

Attorney-General would care to listen — within his own party, which

took the position of there being a 25 percent variance one way or the

other. It is a little obtuse for the Attorney-General to come into this

House and be the defender of ridings like Atlin, when his own party,

during the course of their submissions to the Fisher commission, asked

that those principles that Fisher supported at the end of the day....

MR. CHAIRMAN :

I would like to remind the member for Esquimalt-Port Renfrew that we

are discussing the Ministry of Attorney-General's estimates, vote 13.

Maybe we've strayed a little from that, and we could get back to the

estimates.

[ Page 6382 ]

MR. SIHOTA :

This is heading right back towards the question the Attorney-General

has not yet answered. His own party went in front of that commission

and asked for a 25 percent variance, knowing full well what effect it

would have on ridings such as Atlin. It is hypocritical for the

Attorney-General — who is well aware, I am sure, of the representations

his party was making in front of the Fisher commission with respect to

a plus-or-minus 25 percent variance, and that it would have an

implication for Atlin — to be some type of defender of that riding.

MR. CHAIRMAN :

I would just interrupt. It would be my

interpretation that the issue

involving the Royal Commission on Electoral Boundaries falls within the

jurisdiction of the Provincial Secretary, not that of the

Attorney-General.

MR. SIHOTA : It may, Mr. Chairman,

but the point here is in relation to

interpretation of the Charter of

Rights. That's what we're talking about, in all respects. That's what

allowed the Attorney-General to make the comments he did, and I am

going to continue to deal with

section 15 of the Charter. It is a

decision in front of that ministry right now in terms of how it wishes

to proceed — i.e., whether to appeal. That clearly is within the

purview of the Attorney-General's ministry.

Threaded

throughout all these comments is an argument with respect to who is

benefiting from the Charter. The argument, which I initiated and which

the Attorney-General appears to have accepted, is the fact that those

groups which one would think would be able to enjoy opportunities

through

section 15 of the Charter have been unable to do so. Of the 600

cases that have come before the courts with respect to

section 15, only

66 have been brought forward by what the study called "disadvantaged

persons or groups": only one case on the matter of aboriginal ancestry;

only four cases on the matter of mental disability; only four cases on

the matter of national or ethnic minorities; and only one case on the

matter of racial minorities.

The answer — as the

Attorney-General correctly notes — to why we have this problem is

simply that certain groups cannot afford to take Charter of Rights

cases before the courts or to defend them. They cannot afford access to

the courts with respect to

section 15 litigation.

What

got

the Attorney-General off on the tangent — which I felt I must

reply to — was his unwillingness to answer that question. You

correctly note

that there is a recommendation before you with respect to funding for

section 15 cases. Will the government provide funding for

section 15

cases to the types of groups I have outlined during the course of my

introductory comments on this topic? Will you assist those groups which

you suggest you are concerned about — the disadvantaged, ethnic

minorities, racial minorities, native groups, women — who cannot

secure

access to the courts under

section 15, and ask for advancement of their

rights, which the Legislature here in this province is obviously

unwilling to expand upon?

I don't want to get into the

matter of the human rights commission, because it falls within the

purview of the Minister of Labour (Hon. L. Hanson), and we will deal

with it then. The simple question to the Attorney-General is: will he

provide funding to those groups requiring assistance with respect to

section 15 matters?

[4:15]

HON. S.D. SMITH :

I am not sure how many different ways I can say it, but let me try yet

another one. The matters that the member is referring to are presently

under consideration and will be disclosed to the House as a matter of

future government policy. I've said that three times now. I'll say it

again if it is necessary.

I would add as well that since I

have been Attorney-General, there have been no requests for assistance

at all in any matter relating to the Charter. We frequently get

requests from individuals who want us to be involved in a related

action and in various ways in private litigation — in this ministry

that's quite a frequent occurrence actually — and who have suggestions

to us about matters that ought to be litigated.

We in this

Legislature, when looking at the rights of individuals and the services

that can be provided, should encourage people to look to the

Legislature itself to advance their rights. I think that is one of our

most noble and fundamental responsibilities. It is an ombudsman role,

of providing additional services to people, and probably why many of us

got here. I certainly would want to have the Legislature considered the

place to do that, before I would shuffle people off to some litigation

lawyer to follow that route.

Nevertheless,

if I can say it

again — because I don't want impressions to be left of lack of

answers — those issues are under consideration, and in due course,

when a

decision is taken, it will be disclosed. I don't know what else I can

do. I say that because it is — and has been — government

policy, I

suppose, since Confederation in British Columbia not to fund those or

similar kinds of actions by all governments always in this House. So

that's the answer.

MR. ROSE : I was provoked by some

of the minister's responses. As he pointed out, I am probably the only

one here that was in the federal House at the time of the Charter, and

it's all my fault. It's not my fault that property rights weren't put

in there, though; it was the fault of a lot of Conservative Premiers,

including the one from Saskatchewan and the one from Prince Edward

Island at the time. It had nothing to do with us in Saskatchewan — or

anybody else as far as our governments were concerned; it was somebody

else. But that's another debate.

I would like to say that

Sunday shopping was a matter of freedom of the individual, and I agree.

I don't think the Charter was necessarily intended for that or to

protect people, but it was there to enhance the rights and freedoms of

individuals so that they

[ Page 6383 ]

would

know, in a written form — if you like, an American form, if that's not

just a distraction.... You don't like some of the decisions so you call

it American as a way of criticizing, which is a bit racist, I think.

AN. HON. MEMBER : Nationalist.

MR. ROSE :

Nationalist, jingoist. We can all do that with great skill, since we're

Canadians because we didn't want to be Americans some hundreds of years

ago.

Sunday shopping. I think it would be very difficult to

find a chamber of commerce person in a small town who doesn't parrot

the old phrase about getting the government off the backs of people,

out of business or out of their lives. They'll believe in that until

they want protection against things, and then they want closing hours.

When I was an alderman, I would say to those people who made those

representations: "Look, I don't believe in cluttering up your lives.

You're always calling for more freedom, so I'm not going to legislate

you to stay open or closed at particular times." That was my attitude

because I have a great feeling for freedom, especially when dealing

with chambers of commerce.

The same thing is true of the

freedom of the individuals. You spoke of a highly paid, lucrative,

powerful, well-educated group that is hosting us for something next

week. They can afford it and we'll probably go there, but they are

individuals too. They have the right to have their rights advanced.

This

applies, I think, to the election question about the Dixon case. What

do you do if you have a Legislature with a powerful majority that can

exert a tyranny over redistribution? We have seen that through a series

of gerrymanders. I think the Attorney-General, in his former role as

assistant to the Premier, knew well the result of creating 12 extra

ridings. As a matter of fact, he bragged about it at the time with one

of his colleagues, and it was reported to me. Do you know how it was

done? It was done by the

definitions.

HON. S.D. SMITH : What did I say?

MR. ROSE :

You said that no matter how badly the Bennett government was doing, you

need not worry because you would create 12 new double-member ridings.

Interjection.

MR. ROSE : No, it's you, Mr. Attorney-General. I'll tell you outside the House who it was and when it happened.

In any event, you succeeded. You did it by definition. As pointed out in the

McLachlin-Dixon case, my riding is the largest in the province. It's got

460 square miles but it's the most populous riding. Central Fraser Valley

has two members and 160 square miles. Based on population, it's lower and

it's smaller This whole thing was engineered by definition to re-elect this

government. I've got good news for you: you can't even change this thing

for a couple of years, because you can't change the boundaries, even if

mine grows, for two elections. Those boundaries have to last six years.

This

is why we have reference to the courts. It's to get over and give the

individual some rights against the tyranny of the majority, and we've

had this kind of tyranny for a number of years now. I think that you,

on other occasions, would be prepared to argue that that's what the

courts are for: to redress unjust laws or unconstitutional positions,

notwithstanding — and I don't use that in the legal sense — the fact

that these were duly elected representatives, even if the election was

rigged. That, I think, was all it was supposed to do.

think to badmouth the Charter on the basis of an Americanization of

something is really specious, and that's what I said earlier. I don't

accept your premise at all, and I hope that you learn to mend your ways — like schoolchildren.

MR. R. FRASER : It's always a

pleasure to address this chamber when you are talking about things to

do with the Attorney-General's ministry and to hear the opposition

refer to the courts and say things as lofty as "tyranny of the

majority." That's the way this country runs, my friend. It's the

majority. That's democracy and it always will be. Of course we can

complain; of course we can go to the courts. Who would object to anyone

having the right to do it? In this country anyone can go the courts.

Interjection.

MR. R. FRASER : I can't believe he would do that. No, the Attorney-General wouldn't do that.

We can talk about Sunday shopping. You're right: it should be left with the municipal districts, cities and things like that.

you want to talk about charters, which we do occasionally, one thing

that I find very frustrating about the Charter, about the laws in

Canada at least.... I think the Attorney should think about it; maybe

we should all think about it a bit more. How is it, for example, that

criminals from other countries can come into this country and be

protected by our laws against us? I don't like that idea, Mr. Chairman,

and I think maybe the federal government should be approached by our

Attorney and others, saying: "What are we doing to endanger our

citizens by keeping criminals here?"

He said he didn't like

dual ridings. We've had dual ridings in the province of British

Columbia for 117 years, and they've done not too badly. I didn't see

one word in the newspaper between '72 and '75 that said the NDP wanted

to get rid of them. They liked them then, didn't they? If they ever won

again, which is unlikely, they probably would like them again, but they

don't like them now.

The member for Esquimalt-Port Renfrew

(Mr. Sihota) some months ago said Fisher was not a realistic choice

because he knew the Premier; therefore he

[ Page 6384 ]

would be prejudiced. Now he wants the Fisher report. Isn't it amazing how we switch like that?

went to talk to the Fisher committee, and I said: "I don't believe in

more than 69 members in this House. We've got enough politicians in

British Columbia now; we sure don't need any more." For me to suggest

that we should have 75 politicians in this House is not possible. I

can't support that and I don't intend to support it, so we are going to

have a lot of fun on that committee, although I suppose I could be

removed by the member over there.

It's an interesting thing

to have more and more people in public life. What we want is more and

more people working, more and more people earning money, and a better

organization here. That's what we want, not more and more people just

because they think they might win one more seat. Go ahead; win one more.

MR. CLARK : Go back to the private sector.

MR. R. FRASER : A tempting idea. It was a lovely place, you know. I still like it. I might do it.

Oh,

it's funny how they change. A little riding like Atlin. Maybe it's

unrealistic to have a riding with so few people, but maybe in Canada,

and in British Columbia in particular, we make special exceptions for

people who are a long way from Victoria, the capital of the province.

Maybe we try really hard to make sure they have representation. They

might need a better representative, but they've certainly got

representation.

For them to suggest that we're against

Atlin is, of course, ridiculous. We've done a lot of things to help

Atlin. You remember the former member for Atlin, who said: "I got a lot

of things for my riding because I went to see the government." The

opposition members would do well to visit the government from time to

time, because if they did what our late friend did, things would be

better in British Columbia.

Mr. Chairman, I would like to hear from the Attorney on some of those things.

MR. CHAIRMAN :

I would like to remind all the members in the House that we are on the

Attorney-General's estimates, and we are endeavouring to keep our

discussions to those estimates.

HON. S.D. SMITH : One

of the interesting phenomena associated with discussion of the Charter

and its impact on the role of this office and the things we do in

government is that there is such a dearth of understanding, in my view,

of what the Charter does and was intended to do. You see discussions

characterized as win-loss versus this government or that government or

whatever, and it is characterized in a partisan way. That's

interesting, but I think that over time what will happen is what has

happened in the United States: it is not discussed in a partisan way

but in terms of looking to — as they call it — the Bill of Rights for

support. You don't see it in a partisan sense, and the debates aren't

articulated in that way.

[4:30]

It's

odd for me to be standing and arguing the position I am, when I speak

of partisanship, because of course what a Charter does and is intended

to do, as I said in the many discussions I have had with the second

member for Vancouver East (Mr. Clark), is change where ultimate power

rests. That's its purpose. It thereby enhances individual liberty and

consequentially diminishes community rights, collective rights,

societal rights. That's an interesting notion for me to have to argue

against, since I believe very strongly that, because of the nature of

our nation, the incredible geographic distances in our nation and our

province, and the level of service that we have tried to get ourselves

to — and have achieved.... One of the only ways we have been able to do

that has been to make certain that we are alert to the need to have

those societal rights and that kind of broad-base coverage — that we

understand the community of interest — and to necessarily accept that

responsibility, even where that diminishes individual rights. That is

not something that one ought to characterize as good or bad; that is

simply a choice about how you organize your society.

I know

we'll never get rid of the Charter. I certainly will accept it, do

accept it, and understand what it is and how it operates. I simply

raise these issues because I think it is important for legislators to

understand the direction we're going in. I don't argue the merits of

the decision I've talked about. Once you get past the constitutional

issues of whether the courts or the Legislature should make those

decisions, I find the logic of the decisions themselves quite

compelling. I don't have any difficulty with the logic of the decisions

themselves, but to get to that logic in each instance there has had to

be, by the judiciary, a certain

interpretation of the Charter which

lets them take those powers unto themselves. When you read

section 7 of

the Charter, you wouldn't immediately, through a leap of natural logic,

conclude that it was designed for the purpose it was used for in

relation to Bill 41. That is what I argue about; that's what I am

trying to warn people about.

I think what will happen over

time is that there will develop cases and a body of jurisprudence.... A

lot of people are going to all of a sudden wake up and say: "Holy

George, that ain't the way we thought our society was going to look.

How did we get here?" In our own field, in the case of criminal law,

again it's a matter of power. Yes, individual liberty is involved, but

so is the protection of society. Every time the Charter is used to help

a crook, it makes it tougher for the police to protect society.

I'll

give you a simple example: Regina v. Dupont. An individual gave

evidence admitting an offence — under oath, represented in court, and so

on — and subsequently, through a second trial, the individual decided

not to take the stand. It was given in our courts under oath, through

representation. The Supreme Court of Canada said that in the second

case that evidence could not be heard by the court. It is very

difficult to understand how that enhances our society. Obviously the

Charter can correctly be used to make that kind of

interpretation;

that's what it is

[ Page 6385 ]

there

for. But surely to goodness it's legitimate for legislators to ask what

is the best model to follow to develop, enhance, augment and protect

our society. I think that question is worthy of debate and discussion.

I think it's a question that, in fact, we should think about; I think

it is an issue we should try to deal with.

There's no

simple answer to it. You get into how many angels can dance on the head

of a pin; I understand that. But I think it is fruitless for us, every

time you raise the issue of the impact of the Charter on how our

society operates, to immediately try to fudge the issue with some sort

of personal attack on individual cases. That isn't the issue we're

dealing with at all.

What we're dealing with here is a very

fundamental change taking place in how our society is organized and the

kinds of things we can do. I don't deny that there are incredibly

compelling arguments to be made for the proposition that an individual

should be able to go to the courts using something like the Charter to

redress wrongs. Legislators make mistakes; so, Mr. Opposition House

Leader, do judges. Where the hell do you go when they make a mistake

under this new system?

MR. ROSE : You change the law.

HON. S.D. SMITH :

The point is that under certain circumstances you can't; you don't have

the power. You have to wait for the court to get another case up to the

highest court so it can reverse itself. That's exactly what I was

talking about yesterday with Brown v. the Board of Education in the

United States. People use it, and I've used it, as a great example of

how the courts changed the course of American history, certainly, and

that of many of our pluralistic democracies, by accepting the

proposition that separate was necessarily unequal.

We all

applaud that decision; we all understand the reality and the logic of

that decision. What we don't recognize in terms of process — I'm

talking about process here; I'm not talking about the case — is that for

the 80 years prior to that decision, the same Supreme Court was asked

on several occasions to adjudicate on the same issue and came to the

opposite conclusion. The legislatures in many states wanted to make the

change, tried to make the change, and had laws struck down by that

court. I am trying to say that as a matter of process we have to

understand that we have been reduced in terms of the kinds of things

that legislatures are going to be able to do. It is a change in our

society. It is something we will learn to live with, that we are

learning to live with. There are going to be times when you'll point to

individual decisions and say: "Good on them for doing that." But over

time, what we have done is to transfer ultimate power to nine appointed

individuals. When you transfer power, you take power by extension

somewhere else. What you have done is reduce the power of the people

through their legislature. That is the purpose of it.

MR. ROSE : That argument was used throughout the debate.

HON. S.D. SMITH : Yes, I know it was.

You

ask me why this government, having taken that position — and this

government did; certainly I did, and many members of the former

government did — has a concern to put property rights into the Charter.

It's very simple. If you're going to have a Charter society, then you

should have a full Charter society, not just a partial Charter society.

The process that we're talking about here in terms of property rights

is to protect one of the most fundamental values that citizens of our

society have: the right to own property and to be certain that it

cannot be taken away from them except in accordance with the due

process of law, and to have that embedded in your constitution.

creating the Charter society, what we have done is to create the system

where things that are absolutely certain are no longer in the public

domain but are inside the Charter. It's a Franco-American system of law

imposed on a British parliamentary system of government, as I've said.

Under the British parliamentary system, my friend, you have all those

rights except that which the parliament takes away from you. Under a

written constitutional system, your rights are to be enumerated in the

written constitution. That's the difference. That's the purpose of it.

That's the idea of it.

For you to have some absolute

certainty, you have to embed those rights if you want them in your

constitution. That is why it's important to put property rights, in

terms of process, into the constitution. That's why it's important to

put it into the Charter. That's why the resolution.

MR. ROSE : The right to a job. The right to clean air and water.

HON. S.D. SMITH :

I'm talking to the process. The process of what you own, what you have,

cannot be removed from you except according to due process of law. Then

it is for the courts to interpret the meaning of property. That's what

a property system is all about. That's what a Charter system is all

about. That's the system we're now into. That's what we have to

understand. There's no point being mean-spirited about it and

partisanly objectionable with one another, because it is the system in

which we now are rooted in Canada. It's a system about which we need

greater understanding. It's not a question of good guys and bad guys;

it's a question of understanding.

Interjection.

HON. S.D. SMITH :

No, no, no. Not in a mean-spirited way at all. When I have spoken on

the Charter, I have tried to address the philosophical notion of where

it is we're going. I talk about the Charter not in a partisan way; I

talk about the Charter because I want people to understand the kind of

society we're developing. I run risks every time I do it because I

[ Page 6386 ]

expose

myself immediately to the kinds of personal attacks I hear here today.

I understand that, and I do it in spite of that. I tell you, I will

continue to do it until the last bloody breath in my body, because I

believe it.

MR. ROSE : As I say, even sotto voce the

Attorney-General usually ends up provoking me. I can't be too partisan

on this subject, but I would just like to remind him, whether he

realizes it or not, that I can quote speeches he has made on this very

subject — I can look them up in Hansard — where he has become intensely

partisan and intensely aggressive on this. He's Mr. Moderate today, and

Mr. Philosophical, but that's his new role. I've never seen him dressed

quite like this before. I think it's an improvement, as a matter of

fact. I think he should learn from it. He could become a really lovable

fellow if he....

Interjections.

MR. ROSE :

Everybody laughs, you see; they don't believe that. I'm glad to see him

put away his hatchet and bring out his chamois and polish us all up for

this. His lessons are just a little bit hollow, as far as that's

concerned, when he talks about it.

As far as the Charter

itself is concerned, legislatures had 80 years to do something about

that. You use the example of the Brown case. It wasn't the courts that

prevented the legislatures from doing things; it was the legislators.

The only reason we had the Brown case as being successful was that

there was no other way. That's why it's there.

far as

the Charter and its imposition on us in a parliamentary system, I don't

think anything is perfect, and it should stand the test of time. I

think that some of our rules here are pretty antiquated, too,

especially the ones on rule 35. I'm going to be ruled out of order

here — and the Leader of the Opposition — in a little while

on the grounds

that we are on the business of supply so therefore we can talk about

fish any time. We've got all kinds of senseless, archaic rules by which

we live.

I still maintain that the rights of the individual

are paramount in society. I thought it would be argued there from

across the way. I thought that we were the collectivists, or regarded

as such, and therefore individuals didn't matter very much to us but

the community did, or society did. So I think we have seen a reversal

of roles. I welcome the minister's new one. I urge him to carry on with

the practice. He'll get to like it.

HON. S.D. SMITH :

I must say that I am happy to be partisan at any time if the member

wants. Admittedly, as I have said on many occasions, I am a person

who's fairly combative and, I suppose, a person who holds his views

very strongly. I don't make any apology about that to anyone.

[4:45]

It troubles me when I hear about property rights as I did a few

years ago — last year or the year before, I can't remember when it

was — when I spoke in the Legislature. I had read some of the

things that

had been said and had been said in a partisan way in another chamber. I

certainly responded to those things, and I don't make any apology for

that. I'm a person who believes in playing the game according to the

rules that the opponents want to play. If they want to play in a tough

partisan field, I'm delighted to accommodate them. If they want to have

reasoned debate on the philosophy of something, which I happen to like

doing, I'm quite pleased to participate in that. I'm happy to respond

to whatever avenue my friend wants to walk down.

The

issue, though, that is important I think for all of us to try to....

Maybe it isn't. The member says there are some anachronistic rules

here. I guess there are some anachronistic members in here too.

Goodness knows, maybe I'm anachronistic before my time. I'm indeed

taking a position that I well know is not considered to be the nouveau,

progressive position. Well, fair enough. I believe it strongly. I

believe very much that our society has benefited tremendously from

taking the view that there are certain community rights that have to be

advanced both in social and economic development. On the balance of

convenience between that and certain individual liberties that can be

put forward in opposition to them, we should probably opt for the

greatest good for the greatest number.

Clearly, when you

have a society rooted in that proposition, there rests a much greater

onus on individual legislators to be alert and sensitive to the impact

of those pieces of legislation on individuals. There is no question

about that. I think Canada and this province have had an exemplary and

honourable record in that regard. I think we have achieved many things

that other societies in this world would want to achieve through a

system that allows its legislators to pursue those societal

developments and community rights and the enhancement of collective

responsibility and services. At the same time, we have done it in a way

that has been fair to individuals. We have made mistakes, goodness

knows; of course we've made mistakes. But on balance our society has

been a fair one; it has been sensitive to the liberty of others. On

balance, as well, it can be properly stated that we have done more to

enhance the real liberty of individuals in this society than almost any

other society I can think of anywhere in the world. We have done that

at the same time as being able to pursue our collective interests, our

societal goals and the kinds of services we want for our community.

understand, as I have said several times, that the position I take

leaves me open for attack politically, personally and philosophically.

It is something that if I were looking only at what is politically good

for the second member for Kamloops I would avoid doing. I am not going

to avoid doing it, because I believe it is something that we should be

alert to and sensitive to and that we should understand can take us

down the wrong path. The American model of social organization is not

one that I want to pursue at all. I don't believe in it. I don't want

it.

The effect of the Charter, not the individual cases.... I'm not attacking the judges; I'm not attack-

[ Page 6387 ]

ing

their sense of history or their understanding of the issues. I am

simply warning people that the process upon which we are embarked,

because necessarily to change a process has moved power.... Power: it's

always about power in this human world we live in. It has moved

ultimate power away from the people, through their elected

legislatures, to an appointed judiciary. It has augmented the power of

lawyers. It makes our society more litigious. I don't think a litigious

society is a particularly desirable society. I have said that in my

view — as I have come out of the other side of the law, other than

litigation, I may carry a certain bias — it's a lot better to jawbone

than it is to litigate, and I think Canadians have been darned good at

jawin' over the years, and we've built a darned fine place as a result

of it; and we have in British Columbia. I hope we are sensitive to that

reality, as we see the impact of the Charter take hold over the next

number of years.

MR. CHAIRMAN : Before we proceed, I

would just like to remind all the members that the Chair has been

extremely lenient for the past hour in the debate going back and forth.

I would like to remind members of the rules of relevancy, which I know

all the members of this House are familiar with.

MR. SIHOTA : Mr. Chairman, please listen to the question that I arrive

at at the end of all this, because it's going to be the same question. It

deals with power, and real power.

want to raise a numbe