2000 Legislative Session: 4th Session, 36th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

WEDNESDAY, APRIL 19, 2000

Afternoon Sitting

Volume 19, Number 1

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The House met at 2:06 p.m.

Prayers.

R. Neufeld: In the Legislature today are two city councillors, Don Stewart and Pat Pimm, from the city of Fort St. John. Also attending from the city of Fort St. John are Colin Griffith, the city manager, and John Locher, the public works superintendent. Will the House please make them welcome.

Hon. P. Priddy: Today in the members' gallery we have special guests joining us from Norway. I would ask the House to join me in welcoming the political representatives from Akershus County Assembly in Oslo. The delegation is on a study tour in British Columbia until April 22 to look at health, education and public transportation issues. So I would ask the House to give them a warm welcome, please.

Hon. C. Evans: Somewhere in the gallery today is my friend and assistant Pratik Modha. But more importantly, his brother, Ronuk Modha, is visiting from Manitoba. Members will no doubt be interested to know that his brother has reached the great height of being assistant to the Premier. Will the House please make him welcome.

E. Gillespie: It's my great pleasure today to welcome 53 students from Village Park Elementary in Comox, accompanied by their teacher Ms. Tanya Borden, their principal Mr. Roy Taylor and vice-principal Al Pullin, as well as about ten parents who have accompanied these students on their trip here today. I ask all members to please make the Village Park students most welcome.

D. Symons: Many years ago -- and I won't say how many -- when I got married, my wife's family and her extended family took me in as one of them. Today, Betty and Walter Martens are in the gallery, and I wish you would make them welcome, please.

[1410]

Hon. J. Smallwood: For those of us on both sides that represent Surrey ridings, I think we all know that at some point in your life, you end up either living in Surrey or knowing somebody that does live in Surrey. For that reason, I'd like to extend a warm welcome to visitors from Sanford, Devon, England. Chris Symons and her children, Jessica and David, are travelling with friends and are the family members of Fred Girling, an activist and a valued member of North Surrey.

Oral Questions

CHARTER FLIGHTS FOR

EMPLOYMENT AND INVESTMENT MINISTER

C. Clark: The opposition has obtained documents that indicate that the Minister of Employment and Investment chartered private flights between Victoria and Vancouver at least five times last year. The Victoria-to-Vancouver route is probably the best-serviced air route in British Columbia; there are 75 scheduled flights available every single day.

Can the Minister of Employment and Investment tell us why he sees fit to charter private flights between Victoria and Vancouver, instead of taking any one of the 75 flights that are available to the rest of the mere mortals?

Hon. G. Wilson: I've been Minister of Employment and Investment for about seven weeks. If these flights were chartered by the Minister of Employment and Investment last year, I'd be happy to deal with that in estimates.

The Speaker: Member for Port Moody-Burnaby Mountain with a supplemental question.

C. Clark: I wonder if the minister can think back really far -- not quite as far back as when he was the leader of the PDA or not even further back when he was the leader of the Liberal Party, but just as far back as when he joined the NDP. Just think back that far and try to remember what it was that made him decide that he had to charter flights between Victoria and Vancouver instead of taking any of the ones that are scheduled, which are available to everybody else.

We have documents that show that on at least five occasions, he decided that it wasn't good enough for him to take any of those publicly available flights, any of those flights that have crying babies or pesky members of the public that might sit beside you on the plane. No, instead the minister decided that he wanted to take these private charter flights at over double the price.

Can the minister just give us the satisfaction . . . ? Tell the public why they should be paying over double the price to ferry him back and forth between here and Vancouver instead of getting him on a regularly scheduled flight like the rest of the people in this province.

Hon. G. Wilson: The member opposite should well know that question period is for the members opposite to ask questions of the minister with respect to their ministerial capacity. The flights that this member is referring to deal with a number of ministries at the time I was minister, and the appropriate place for those kinds of questions to be raised and discussed is in estimates.

The Speaker: The member for Port Moody-Burnaby Mountain with a further supplemental.

C. Clark: I understand that timing is an issue. You know, if you have your own private scheduled flight, they might have time to roll out the red carpet for you when you arrive or have the band and the masses assembled for you when you touch down.

For goodness' sake, the government's policy on this, for any minister, states that in order to take a privately scheduled flight, you must get the most economical airfare. It also says that if you are going to take a private charter, you can do it only in cases where it's the same price as the scheduled airlines. Neither of these is true in this minister's case. So can the member for Buckingham Palace tell us what it is that makes him so special that he doesn't have to live by the rules that govern the cost of airfare, which apply to everybody else?

[1415]

Hon. G. Wilson: Hon. Speaker, I'd point out that Powell River-Sunshine Coast is very cosmopolitan and would take a

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dim view of being referenced as Buckingham Palace, frankly. There are people from many different cultural backgrounds who live there, not only those who may come from the palace which that member opposite is more familiar with.

The member well knows that question period is for those opposite to ask questions of a minister with respect to their ministerial capacity. If those members have questions with respect to past travel -- and they may well do so -- those may be put toward the appropriate minister during estimates. I can assure the members of this House that all travel has been done in accordance with the rules of this Legislative Assembly and of the government.

M. de Jong: Well, it seems that the minister's charter airline of choice is actually located out at the floatplane dock at Victoria International Airport. It also appears from the documents we've got that it was too onerous for him to actually drive all the way out to those docks, and he paid to have the aircraft brought downtown so he could just walk across the street. That little aeronautical taxi service cost taxpayers $1,000. My question to that minister is: is there something about driving 25 minutes out to the airport that this minister finds beneath him?

The Speaker: I'd ask the minister to answer the questions in the respect that it applies to his ministerial responsibilities currently.

Hon. G. Wilson: I appreciate that, hon. Speaker. I have answered those questions with respect to this ministry, and I think the members opposite know that.

The Speaker: Member for Matsqui with a supplemental question.

M. de Jong: Let's go to a different set of documents. They relate to May 18 and May 21 of last year, when the minister was the only passenger on a charter flight to Powell River. On both of those occasions the minister stayed overnight in Powell River. We checked his

schedule for those dates, and there was no record whatsoever of him performing any ministerial duties on those days. My question to that minister is -- and if he doesn't want to answer, maybe the Finance minister, who's responsible, will answer: why did he charge taxpayers for performing ministerial business in his home riding when it appears that all he was doing was going home for a quick meal?

The Speaker: The Chair will remind members that these questions must relate to the minister's current responsibilities.

PEDIATRIC INTENSIVE CARE UNIT

AT VICTORIA GENERAL HOSPITAL

C. Hansen: I guess in contrast to where some of the taxpayers' dollars are being wasted in this province, I'd like to take a look at areas where dollars are not being spent.

The pediatric intensive care unit at Victoria General Hospital is in jeopardy of being closed. This means that in the capital of British Columbia, a child cannot be treated immediately if injured in a serious car accident. As a result, this will mean that seriously injured children will have to be flown to Vancouver, to Calgary or perhaps even to the U.S. for treatment. Will the Health minister tell us how closing the pediatric ICU in the capital of British Columbia is consistent with providing quality health care?

Hon. M. Farnworth: First off, I would like to make a couple of points, the first being that I do not expect the pediatric unit to be closed in the capital of British Columbia. Second, I understand the comments that the member has been making or has heard, and he's heard them in discussion around Victoria and in some of the media. There's a couple of things he needs to realize. One is that the budget has yet to be released, so any discussion around that is premature. As I said, I don't expect it to be closed. Quite frankly, I expect the board to examine . . . .

Interjection.

Hon. M. Farnworth: Hon. member, I'm trying to answer a very serious question here, and I'd appreciate not being interrupted, thank you.

The Speaker: Through the Chair please, minister.

Hon. M. Farnworth: I don't expect it to be closed. We've indicated that we want to work with health units to ensure that when they get their budgets, they can deal with them in the most appropriate way, and our staff are willing to do that.

Hon. Speaker, I understand the member's concerns, but I want to assure him that I do not expect, nor do I support, the closing of the pediatric unit here in Victoria.

The Speaker: Member for Vancouver-Quilchena with a supplementary question.

[1420]

C. Hansen: The residents of Victoria do want to hear that the Minister of Health doesn't expect an ICU to close. They want to hear the Minister of Health say that it will not close. I'd also like to remind the minister, when he says that they don't even know what their budgets are . . . . We're three weeks into the fiscal year, and the health authorities in this province do not yet know what their budgets are. That is on his shoulders, hon. Speaker.

It costs $750,000 to operate the children's ICU at Victoria General. Meanwhile, three weeks ago this government was prepared to pay almost that amount of money to CUPE to cover the cost of their negotiating expenses. Will the Health minister tell us why the government would rather pay for CUPE's bills than they would to ensure that the children's ICU is properly funded?

Hon. M. Farnworth: Just to repeat my comments, in case the hon. member didn't hear them, the health authorities have a job to do. That means managing a budget. But I will tell the hon. member that I do not support, nor do I expect them to close . . . . In fact, they will not be closing, because any decision has to come back here for approval. They will not be closing the pediatric intensive care unit for children here in the city of Victoria. So let's be clear on that, hon. member.

Second, we need to deal with health care issues in this province in a constructive manner. We're working with health authorities throughout the province to ensure that we can identify areas where funds can be expensed to improve the delivery of service.

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Also, we're working on developing a plan that we can take forward to Ottawa in conjunction with other provinces to ensure -- not only in terms of what the province is doing to fund medicare but how we get the federal government back to the table -- that we have a 50-50 partnership on health care issues in this province, so that it's back to the partnership it was supposed to have been when medicare was first set up -- to find ways of addressing the challenges in the health care system around such areas as technology, nursing and information technology, to ensure that we have a sustainable medicare system that can carry British Columbia into the decades to come.

FOREST WORKER TRANSITION PROGRAM TAX ISSUE

G. Abbott: Last Friday, I received a letter from the Forests minister regarding my comments on this government's inept and absolutely pathetic handling of the forest worker transition program tax issue. In this letter the Forests minister says that my "misrepresentation of the facts does a great disservice to the forest workers."

Well, perhaps I should have used the words of the NDP member for Malahat-Juan de Fuca. According to that member, FRBC "lied, they misled the people, they totally screwed up, and they should be fired." Will the Forests minister tell us whether he's also sent a letter of reprimand to the member for Malahat-Juan de Fuca?

Interjections.

The Speaker: Order, members.

Hon. J. Doyle: I would just like to say to the hon. member across the floor and all other members in this House that on March 29, I think it was, I brought out a solution for the forest workers who were concerned about the moneys that they got through forest worker training. Also, I said that 80 percent of the people who took this training from Forest Renewal are working today in full-time jobs. So I'm very, very proud of the actions this government took.

The member opposite said that the government should do something; we did something. The member for Matsqui said that the provincial government should look at paying the provincial tax; we did that. So it's been solved.

Actually, there have been 198 calls to the FRBC office on this issue from March 30 until April 14, and 95 percent of them were positive as to the action that the Minister of Forests took on this issue.

The Speaker: The member for Shuswap with a supplemental.

[1425]

G. Abbott: One of the great things about this government's agreement-in-principle on that issue was that it never included the people who were affected by it. The 63 displaced forest workers were one party who were not part of that agreement. It's another example of the pathetic management of this issue by this government.

In fairness to the member for Malahat-Juan de Fuca, hon. Speaker, he points the finger not only at FRBC; he also points the finger at his own caucus members. For example, he says: "If the Minister of Social Development had the moxie, she'd clean up this mess in cabinet." Can the Minister of Social Development tell us if she has the moxie to stand up for the thousands of displaced forest workers in this province who have been abandoned by this cabinet?

Hon. J. Pullinger: Well, hon. Speaker, I'm not sure that I could claim all the credit myself, but I can say that we have resolved the problem on this side of the House.

G. Farrell-Collins: It's always interesting to hear what the member for Malahat-Juan de Fuca has to say. I know he may not want to get up in the House and ask his questions, but we'll ask them for him. I also want to let him know that if he decides to cross to this side of the House, he'll get his opportunity in question period to ask those questions.

On behalf of the member for Malahat-Juan de Fuca, I would like to ask the Minister of Social Development: does she have the moxie to clean up the mess in cabinet? What has she done to clean up the mess in cabinet that was so ably identified by the member for Malahat-Juan de Fuca?

The Speaker: The bell ends question period.

Orders of the Day

The Speaker: Government House Leader.

Hon. D. Lovick: Thank you . . . .

Interjections.

The Speaker: Order, members.

Hon. D. Lovick: Mr. Speaker, I am the epitome of patience, and I can indeed wait. I call committee on Bill 3.

BUDGET MEASURES

IMPLEMENTATION ACT, 2000

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

Sections 1 to 6 inclusive approved.

section 7.

G. Farrell-Collins: At a number of places in this legislation, there's a requirement for the tax collected and the tax collected in error to be held separately. Those are the words that appear. They don't appear in this section,

section 7, of the bill. I just want to ask the question, "Why?" so I don't have to ask it and be out of order at a later date in the debate.

[1430]

Hon. P. Ramsey: I think the member got briefed on the section. The purpose of saying that if a person collects an amount as if it were a tax, he "must remit the amount collected to the director at the same time and in the same manner as tax collected . . . " is simply to avoid having the province placed in the situation of being responsible for repayment of a

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tax in error that it hasn't received the money for, when it would be eligible for refund. Having listened to the member's question, though, I'm not sure I'm precisely on the point he raised, so he might wish to restate the point.

G. Farrell-Collins: This

section is similarly repeated in other places in the bill in regard to other tax acts. In those cases it requires any person collecting tax to hold that tax separately. I'm assuming that means in a separate account or a bank account or whatever. Perhaps the minister can clarify. But in this

section of the act, for some reason, it doesn't mirror that. Perhaps he can tell me why.

Hon. P. Ramsey: Taxes that are collected are to be held separately -- that is, staff advising the general provision. Holding separately does not necessarily mean a separate bank account, although the collector might choose to do that. What it does mean is that it must be entered separately on the collector's accounts so it is identifiable as tax collected and held in trust, really, for the province of British Columbia.

G. Farrell-Collins: I just wanted to ask that question at that point, because the amendment that does that comes up in

section 10. I didn't want to be out of order and not be able to ask the question later.

Perhaps we can move on to

section 8 then, Mr. Chairman.

Section 7 approved.

section 8.

G. Farrell-Collins: This is the

section that is the first occurrence in this bill of a provision that recurs throughout the legislation in one form or another. It's an issue that was raised yesterday in second reading as an area of concern -- primarily subsection (4) of the to-be-amended

section 16.1, where it says: "Under this Act, an affidavit by the director, or the authorized person referred to in subsection (1), in which are stated the facts necessary to establish (

a) compliance by the director or authorized person with this section, or (

b) default by a person on whom demand was made under this

section must be admitted as evidence in any court and is proof, in the absence of evidence to the contrary, of the facts stated."

The concern that we have on this side of the House is that this

section reverses the onus of proof, the burden of proof, to the accused as opposed to the accuser. Can the minister explain to us why he feels that type of a provision is required under this act?

[1435]

Hon. P. Ramsey: The intent of the act is, as the member says, that an affidavit is evidence of the facts stated in the affidavit, unless there is evidence to the contrary. That's what the words say, and that's accurate. What this provides is evidence of the facts, not proof of an offence. Proof of an offence has to go . . . . It has to be proved that this was done wilfully under this provision of the act.

G. Plant: I think what the minister is saying is that the affidavit is not all that's required to prove an offence. That may be so, but that doesn't answer the thrust of the question, which is: why does the government need to reverse the onus of proof with respect to those facts that are set out in the affidavit? Why is it that the government needs to, in effect, tilt the playing field against the accused in respect of these matters and so strongly in favour of the government?

Hon. P. Ramsey: What this provision, this amendment to the act, provides is that the person seeking to get the information on taxes has done the following. In other words, as the person responsible for collecting, I have said that the director or the authorized person may file an affidavit. The affidavit will state facts to show or to establish "compliance by the director or authorized person with this section, or . . . default by a person on whom a demand was made under this section."

So in the first case, hon. member, what we're doing here is saying that if the director submits an affidavit that says, "I took the following steps in collection of the tax," and submits an affidavit to that effect, that shall be taken as evidence of that fact. It does not mean that an offence has been committed. It simply says: "Here's the evidence that I, as director or authorized person, have done the following in order to ensure compliance with the act."

G. Plant: Then the evidence in the form of the affidavit "is proof, in the absence of evidence to the contrary, of the facts stated." What we're talking about here is, I assume, among other things, the things that are talked about earlier in the

section -- that is, that "the director or a person authorized by the director may, by demand notice, require from any person . . . a return . . . any information . . . the production of any records, or . . . a written statement."

So the affidavit is going to say: "I'm the director or the authorized person. I made the demand for a return and all these other things. I asked the person to provide the records, and they haven't done it."

What happens when the person, who is later accused of the offence of failing to comply with the obligations to provide those documents, goes into court instead of, in the traditional sense, being met with someone who comes into court and actually gives oral evidence, saying: "These are the things that should have happened, and they didn't happen"? What he sees is an affidavit on the table. He may see nobody else in the courtroom, for all I know. He has to then bear the burden, in front of the justice or the judge, of essentially rebutting the truth.

[S. Hawkins in the chair.]

I mean, it's conceivable that there are important reasons of public policy for why that is so. But I think the concern we have on this side of the House is that we haven't heard those reasons yet. All this looks like is kind of an expedient way of making it easier for the government to prove offences under the act by not requiring people to actually go off to court and give evidence on these matters.

[1440]

Hon. P. Ramsey: The member is right.

Oh, welcome to the chair, hon. Chair.

The provision of this is indeed to streamline that part of it -- this part of any proceeding under this

section of the act. What I would say to the member is this: if the situation is such that the person on whom the demand is made has responded

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in some way, that will be part of the affidavit. What the director must file is: "This is what we've tried; this is what the response has been. This is where we are." He or she is reporting on his or her actions and stating that in the form of an affidavit as to the facts. That's what they're doing -- correct?

G. Farrell-Collins: Still, I guess the question here is why it's necessary. If the director has that information -- copies of e-mails, copies of faxes, copies of letters, receipts for double-secured mail -- it would seem to me that you staple that together and plop it in front of the judge. They flip through it, and they say, "Well, what have you got to say?" and then they balance it. I don't understand why the government needs this provision in the act to essentially just miss that entire step of proving whether or not the person was notified.

You know, it's not unheard of for somebody in the public sector to misplace something or think they've sent it. People are busy; I can understand that happening. And somebody at the other end may say: "Look, I never received that letter. I didn't receive that fax." It's not unheard of for that to be the case, that the fax may not have been sent. I think that to just arbitrarily give the benefit of the doubt to the government -- the tax collector, in this case -- without some reason why is going too far.

If the minister can convince us otherwise -- that it's not just arbitrary, that there's a real justice requirement to make that the case in this legislation -- then I'd be interested to hear it.

Hon. P. Ramsey: Thank you, hon. member, for the question. I think it needs to be pointed out clearly that what we're dealing with here is not a situation in which the tax collector and the taxpayer are getting along well -- okay? This is when you have some acrimony between the parties.

Collection is difficult. People may be taking a variety of steps to avoid the remittance of taxation. They may, for example, be simply refusing to collect their mail or receive registered letters or acknowledge receipt in any way. They may have moved and sought to conceal -- that may be too strong a word -- where they're going to.

For the sake of these provisions of the Hotel Room Tax Act -- and the member is correct; there are other such provisions -- the goal here is not to say . . . . Just because I file an affidavit and say, "Look, this is what we've tried to do to contact them. This is what the responses have been to date; we haven't had a response," it's not to say that that constitutes an offence, and the guillotine comes down and it's over. It's simply to say: "These are the facts and what we've tried to do to date. This is the response we've had to date." Period.

Proving wilful avoidance is what's required for an offence. So the reason, as I said, is that this is not for a situation when things are going well; something has seriously broken down. This is a step to say that you can't chase forever; you have to at some point say: "This is what we've tried."

[1445]

G. Plant: At least we're making some progress, I think, in understanding what the government has in mind here. But this is really still . . . . It's all wonderfully convenient for the government. I mean, if someone's not paying tax under this act, the government can charge them with not paying tax or do whatever the government does, and then the government goes off to try to prove that case in court. This is kind of that new version of criminal law which is beloved of bureaucrats and administrators, which is: "Well, now we can make it a whole lot easier on us as government.

We can impose a whole bunch of additional requirements that the taxpayer give us information. Then when they don't give us information, if we can't charge them for failing to pay tax, we can charge them for failing to give us information."

As I read the offence and penalty sections under this act, and as I read this proposed new section, that will be the effect. The government gets another chance to whack that taxpayer on the side of the head because, as the minister says, they're not getting along very well. The minister has a good answer to that: "If you won't answer my letters, I'll charge you for not answering my letters. And guess what.

All I'll have to do to prove that offence is prove that I sent you the letter and you didn't send anything back." It seems to me that taken altogether, that stacks the deck a little bit too much in the favour of government at the expense of basic fair treatment for taxpayers, even reluctant taxpayers.

Hon. P. Ramsey: If we poll the set of reluctant taxpayers, it might be a very large number. But let me say that this is where things have gone seriously wrong. Here's the problem with the existing provisions of legislation that the amendment is seeking to improve. The existing legislation says that administrators can request information. It provides no recourse if the taxpayer refuses to do so -- to provide information.

What these provisions say, then, is: "Well, for the sake of that part, if you have an affidavit by the administrator as to what has been done to seek the information, that is evidence of the fact that that's how you've sought the information."

Let me give you a couple of examples. Say that collection action is being considered and you need information confirming the whereabouts and the value of assets that are subject to statutory liens. You've tried to get it; you can't. It's not that an offence has been committed, but you have to have some recourse if the taxpayer simply refuses to respond and provide the necessary information.

G. Farrell-Collins: Without getting out of order, there are a whole bunch of sections coming up that deal with this in one form or another. One really does need to look at them together. So if the minister will permit me the opportunity to comment . . . . If the case he's making is that someone is not supplying the government with information they require in order to administer the tax system, and this person is wilfully avoiding contact with the tax collector in any way, shape or form, and the government is sitting there, sending out all these e-mails and faxes and letters and getting nothing back, they are sort of held there with nothing that they can do.

Sections to follow create the provisions in the act that will make that an offence: a failure to cooperate. What's the wording in

section 13? It's: " . . . wilfully . . . fails to comply with this Act." Those are the kinds of things that the minister is talking about as being the offence. That's fine. If that's what the government feels it needs to do, we can have that debate when we get to that section.

But when you come back to

section 8, what it's doing is saying that the government doesn't need to prove its case relevant to the failure to cooperate. Really, all they have to do is file an affidavit that says that this person won't talk to us.

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Therefore that's proof that the person won't talk to you, and then you go ahead to the next

section and say that that is wilfully failing to cooperate. And that's the offence.

[1450]

G. Plant: And they don't even have to go into court to say that. All they have to do is file an affidavit.

G. Farrell-Collins: As the member said, you aren't even required to go to court to do that; you just file an affidavit. What you're doing is putting the person . . . . I understand that this isn't when things are great. If everything was great and everybody was getting along and everybody loved paying their taxes, we wouldn't need this bill. We'd just have a list of how much tax everybody had to pay, and you could nail it to a fence post somewhere, and everybody would remit them.

This is in a case where people obviously aren't talking. Read together, the government is creating some pretty onerous requirements for cooperation from the taxpayer and then jigging the rules to make it that much easier for the government to convict the person of the offence that follows in a later part of the bill. The minister is shaking his head; perhaps he can explain to me why I'm wrong.

E. Gillespie: I ask leave to make an introduction.

Leave granted.

E. Gillespie: I would ask the House to join me in welcoming the second half of the group of students from Village Park Elementary, who are here with their teachers and a number of parents. I see Mr. Al Pullin, their teacher, here with them. Please join me in making them most welcome.

Hon. P. Ramsey: Two points. First, I think your colleague there was actually shaking his head as you were through the second part of your assertion, because the facts submitted in the affidavit saying that there is a default by a person -- you know, "We've issued these notices; we've gotten no reply . . . . " That by itself is not sufficient for proof of an offence. The offence is tied up with wilful refusal.

Second, I would say this: the affidavit must be admitted as evidence, and it is proof of the facts stated in the absence of evidence to the contrary. If there is contrary evidence, it is an affidavit. It is, "This is what we tried to do," and that's all it is.

G. Farrell-Collins: That isn't all it is; it is also proof. It is proof. It is evidence and proof, in the absence of evidence to the contrary, of a set of facts. Those facts then become the basis for which somebody -- or the government -- goes and tries to obtain conviction for an offence. It shifts the burden of proof of those facts from the government, from the tax collector, to the person who's supposed to remit the tax. The government makes its assertion, the other person makes theirs, and it's the other way around. It's up to the person who's supposed to be remitting the tax to prove their case.

They're the defendant; they're the ones who have to go in and prove that the facts aren't as the government has stated. In fact, it's the government's obligation to make those facts, to state that case and to convince a judge that that's the case.

What the government is doing by saying that it becomes proof is giving the judge no opportunity whatsoever to evaluate the credibility of the government's assertions in the affidavit. It comes before the judge, who says: "Look, this is what the act says." Or I'm the lawyer for the government, and I say: "Here's our affidavit. That's proof, and unless the defendant can prove otherwise, we have a basic understanding of the facts in this case. Now you can understand, Madam Judge, why I want to charge this person with an offence under failure to cooperate."

It's the first step, but it's nine-tenths of the way to a conviction. It may not convict somebody of an offence, but it gets you nine-tenths of the way there. It gives no leeway to the judge. That's why we give judges the ability to make those determinations based on the evidence. The government is requiring the defendant in this case to prove their innocence beforehand. The government then has the balance of power in this case. It shifts it dramatically, and it does that repeatedly throughout this bill.

[1455]

Hon. P. Ramsey: I guess I'd say this. What this provision provides is that the director or person authorized must provide an affidavit that says: "This is what we've done." He has to show that the provisions of this act have been adhered to. Those provisions include the serving of demand notice, and it lists ways in which that can be done. You can do it by personal service, registered mail or electronic file. It has to specify a reasonable time. It may require the written statement. These are the things that have to be done. What the affidavit says is: "This is what we've attempted to do; in the absence of evidence to the contrary, this is what occurred."

I understand that . . . . I'm not quite sure what the procedure would be, absent this provision. The director would go into court and do the same thing. So in a way of getting to some understanding of what this

section does, that is my understanding of what we're doing here. How are you going to show that you've taken the following steps? Well, produce an affidavit saying: "This is what we've done, and in the absence of evidence to the contrary, this affidavit is evidence of the fact as stated."

G. Farrell-Collins: If it's the way the minister says -- that it really is just a way of putting it out there -- then he doesn't need the clause in the bill that says it shall be proof. You just say that you submit an affidavit. That's your evidence. The other person can be there and submit their evidence, and the judge decides. The judge can cross-examine the defendant. The judge can't cross-examine an affidavit, though, because the director isn't there; just the affidavit is there. It makes it much more difficult for the judge to determine what happened and what didn't happen.

What does a judge do if the government gives an affidavit that says that this is what happened, and the defendant shows up and says: "Well, that's not what happened. This is my case." So the lawyer for the government cross-examines the defendant; the lawyer for the defendant can't cross-examine an affidavit. So the judge is left there trying to make up their mind. Now all they're doing is weighing the evidence that's put there to the contrary. They have no ability to weigh the evidence that's put there with the affidavit.

Depending on what's going on over here, with no opportunity to cross-examine the government's person -- the director -- who provided the evidence, the judge has to decide in favour of the government. If that's not the case, then the government doesn't need this section.

[ Page 15079 ]

As it would be now, my understanding is that the director or someone would come in and say: "This is what we've done." They could submit it. They could hand in an affidavit; they could give a list; they could staple it all together and hand it to the judge -- submit it as evidence. The defendant would say: "Here's what I've done, and this is my side of the story." And then the judge would listen to the cross-examination and make a decision.

I don't see how that's a bad process. If there's something . . . . What's wrong with that process that requires this new process to be in place? What is it that's wrong with the way it's done now that requires this legislation to be put into place?

Hon. P. Ramsey: I don't think that the members opposite and I are really disagreeing greatly on what the provision does. I think we have an understanding of that. I think we are in some disagreement about whether it is necessary to ensure a smooth operation of the act and collection of taxes.

[1500]

Interjection.

Hon. P. Ramsey: Smooth and fair -- okay?

Interjection.

Hon. P. Ramsey: Absolutely. Efficient and fair -- both sides.

I would point out to the members opposite that this provision is not unlike -- in fact, it is mirrored in -- other provisions of tax collection acts. For example, the notice of assessment says that this is the assessment, contrary to evidence that says it isn't. There are a variety of provisions in this bill and others that mirror this procedure.

I would point out that what is being attested to in the affidavit is the actions of the director or his designate: "This is what I've done. Here are the attempts to communicate. Here's when the faxes have been sent. This is what I know, within my ken, about what has been done."

If the person contesting it provides an affidavit to the contrary . . . .

An Hon. Member: It doesn't say that.

Hon. P. Ramsey: Well, hold on now. If a person who's contesting it has evidence to the contrary, then this affidavit is not evidence of the facts stated.

G. Farrell-Collins: I think we've come to some understanding on both sides as to what it does. The question I have for the minister is why. Why the need to change this? What's wrong with the current process that it requires this change?

Hon. P. Ramsey: This provision provides that there is an end point to the process, that there is certainty about what has been done and what the facts are. That's what it does.

G. Farrell-Collins: There's an end point to all processes. This doesn't provide an end point; it provides an easier end point or an earlier end point or a smoother end point or a more efficient end point, from the government's point of view. From the taxpayers' point of view, it may not be earlier or better or smoother or more efficient; it may just be more unfair. This is about fairness. This isn't about what's comfortable for the government or what's easy for the government. This is about fairness.

If it keeps the system the same way as it is now -- which I would argue is fair -- then why is the government so excited about the earlier end point? Obviously to get an earlier end point or bring it to a conclusion quicker . . . . It's putting the balance in favour of the government, so it's harder for the defendant or the judge to decide against the government, given the wording that's here.

That's the problem with it. There is no need, if the current system is fair, to do this. The only need I can see for it is for the government's sake. It makes it easier, less expensive, more comfortable, more efficient, etc., and I would argue that those aren't sufficient grounds to remove and reverse the onus of proof for evidence that goes before a judge in this case.

Hon. P. Ramsey: The only thing I can say about our disagreement about the necessity of this is that these provisions are put forward to provide the province with the ability to get information. This provides an end point for saying that this is what has been done.

We have a common agreement about what these provisions do. I think that what we're debating is the necessity for it. I would point out to the member that we are not dealing with potential taxpayers who are cooperating with the collection of taxes. These are folks who are not providing information, who are seeking to avoid the provision of information, who are going to do a lot to impede the collection of taxes that are owing.

I understand that you want to balance -- and I think both sides of the House would agree -- efficiency with fairness. I believe this is a fairly elaborate procedure. What the affidavit does not say is: "Here's an affidavit. An offence has been committed. It's over." That is not what these provisions do. All they do is say: "Here is what we've done to obtain the information. Here's what we've done in an effort to communicate. Here's our affidavit as to what we've done." If whoever is adjudicating the matter doesn't have evidence to the contrary, then those are the facts before the adjudicator as he or she looks at the provision or the requirement to pay taxes.

[1505]

G. Farrell-Collins: I think that for the most part, we have similar understandings of what this does. I think the minister is making the assumption -- and I think the government is too -- that because this person is failing or choosing not to deal with the government on this issue, they're necessarily guilty. Therefore we can amend and take shortcuts and tighten up the process in order to obtain a conviction. That's essentially what it is. The government has decided that these people, whoever they are, as a group and as individuals are bad actors and the government is going to change the rules to make it easier to get those people that the government has already decided are bad actors.

The problem is that it's not up to the government to decide they're bad actors; it's up to a court to decide whether or not they're bad actors. In order for a court to decide whether or not they're bad actors, the balance of evidence should be weighed fairly. The minister can't tell me that this is just going to make it a little more efficient and that, really, all it's about is an affidavit about what's done, because at later sections in this bill, particularly

section 13, it does create an

[ Page 15080 ]

offence. It does say what an offence is, and it makes an amendment. "Offence" used to mean that you had to obstruct or hinder an investigation; now you can be charged with an offence just if you don't cooperate.

It's not unheard of for an individual or a business person and the tax collector to have disagreements. That happens a lot, I would imagine. And in some cases the government's right, and in some cases the business person is right. That's why the government keeps coming back here year after year closing loopholes as a result of tax legislation they passed years previously, where they've lost court cases. I mean, the government repeatedly loses court cases on its tax policy, on tax legislation, and the defendant wins.

I would assume that the reason the government took those people to court in the first place was because they thought they were bad actors. They weren't paying their taxes, as the government understood the legislation. When the government loses those cases, or repeatedly loses cases, the government puts into place legislation like this to change the balance of the rules of evidence, to change the provisions, to create new offences such as failure to cooperate with the tax collector. And therefore they're going to solve their problem.

It may well be that you've got a really bad actor out there who just simply refuses to remit any taxes, continues to collect them, refuses to submit them, won't talk to you, doesn't return mail, etc., and the government needs to go after them. But what about the person who just really disagrees with the

interpretation of the legislation and gets into a strained-at-best relationship with somebody in the Ministry of Finance who's collecting those taxes? The communications break down for whatever reason, and they stop talking to each other. Now that can create an offence under the act, and the evidence required to convict you is weighed in favour of the government because of the provision that we're putting here in

section 8.

That's my concern with the legislation. The minister, in my opinion, has yet to prove that he needs these changes to the legislation in order to ensure a fair levy of taxes and a fair process of collecting taxes. I don't buy the explanation that we've received to date. I don't think it's sufficient to warrant these provisions, and unless the minister can quickly convince us otherwise, we won't be supporting this section.

Hon. P. Ramsey: I'd only say this: we can have the debate on what offences are being created later, when we get to that

section -- okay? We are dealing with

section 8 and the provision of affidavit information as to attempts to obtain information by the director or authorized person. That's the part that we're dealing with here.

We can have the debate further down the line about what the offence provisions are here. But I can only go back and say what I've said before. I have really nothing to add to why or what this section,

section 8, provides.

[1510]

G. Plant: Well, I can't figure out whether I can accept the

section that we have before us, the idea of this affidavit, without having some sense of what the affidavit is going to be used for. When I turn the page and see that in a later

section in this bill, the affidavit is going to be available to assist the government in proving a wider range of offences than is currently the case, I get a bit concerned. Most of the points have been made. I think we have reached a certain level of understanding not only about how the

section works but on the way in which we disagree with each other.

One of the things that's very interesting about the discussion is that I think we have been having this discussion on the assumption that all we're doing is talking about people who should be paying hotel room tax. Oddly enough, subsection (1) of the

section in front of us does not limit the director's ability to require affidavits from people who should be paying hotel room tax. The director can write a letter, or whatever it is that the director does, to anybody they want to -- the Leader of the Opposition, the minister's staff, the guys who live down the street -- and say: "You know what? I'm making a demand under this act. I require that you file a return, that you provide me with information about the tax I've decided you owe, that you produce all the records you have and that you produce a written statement.

You've got -- oh, I don't know -- ten days, 14 days, to return; that's a reasonable time. I've delivered this to you personally; I can prove that. And actually, because I don't even know who you are, I require that you go and get an affidavit."

Now, the person on the receiving end of this may never have actually set foot in a hotel in his life, let alone operated one. He may think that when he gets a letter from the government, his best way of dealing with it is that before he reads it, he burns it. Oddly enough, by doing that, he will have committed the offence in the next section. He may never have walked into a hotel, and he may never have operated a hotel, but one thing he surely will have done, under this act, is refuse to cooperate with the director. When you take that and add that . . . .

I know the minister's going to stand up and say: "Oh, surely we have to assume that the director would never do anything so unreasonable as that."

Well, the sad fact is that directors, from time to time, do in fact do those sorts of things. I think that is why, when we're drafting provisions like this and looking at giving the state the power to invade the privacy of people's lives, we should be fair about how we do it. When I look at what this does, this effectively allows the government to presumptively prove all of the necessary ingredients of offences under this act without anything more than an affidavit.

The minister says: "Well, surely in those circumstances the guy on the receiving end of all this is going to go off to court and defend himself." Well, the guy on the receiving end of this shouldn't be in court. He's never been in a hotel; he's never operated an hotel. He's never had anything to do with hotels. Why should he be in court?

I think this goes further than the government needs to go in order to meet its requirements of efficiency. What it does is compromise the fairness that taxpayers should be afforded, in the interests of government efficiency.

Hon. P. Ramsey: Until that last one, I thought we were actually narrowing the gap between us. I think we've just widened it again. Let's make the following points again.

The affidavit that we're referencing under

section 8 does not constitute proof of an offence. It simply does not do that. It provides, in the absence of evidence to the contrary, the facts about attempts to gather evidence.

Secondly, the assumption that because the word "person" is used in subsection (1) of this act, anybody could be filed and have information requested on any subject under this act is

[ Page 15081 ]

simply false. I think the member knows that. You can't jerk this

section out of the act. A director operating that way would be way outside any legislated mandate. The word "person" here is somebody who has an obligation under that act. You simply can't jerk it out of the middle of

an act like that.

[1515]

Interjection.

Hon. P. Ramsey: Hon. Chair, I think we're engaging in good debate back and forth, but I do believe that the member's suggestion . . . . I think I can assure the member that we're not going to demand information of him if he's not subject to provisions under the Hotel Room Tax Act. This is

an act about how people operate in the provisions of that act -- those who have an obligation and those who are required to administer the act.

Section 8 approved on division.

Sections 9 to 12 inclusive approved.

section 13.

G. Farrell-Collins: This is the

section that I think relates back, although other sections in the act do also, to the provisions we were just debating. This is the concern that I raised earlier. In this

section it changes what the act used to say, which was something to the effect of . . . . It was an offence to hinder, molest, interfere with an inspection, audit or examination or prevent or attempt to prevent a person from carrying out an inspection -- yadda, yadda, yadda. So essentially, if you are actively going out to hinder, molest, interfere with an investigation -- an attempt to obstruct an investigation -- that was an offence.

Now, under this

section of the act, it becomes an offence just to not be happy about it. It says: "If you fail to cooperate with the government, then you're creating an offence." So a failure to respond to the notifications, etc., itself . . . . You're not actively hindering the investigation. You're just not being terribly cooperative with the government, because you don't, quite frankly, agree with the way the tax is being levied. You think that their

interpretation of the act is different from your

interpretation of the act, and therefore you're not going to deal with them. That's a failure to cooperate. That is in fact an offence now, under this legislation. Perhaps the minister can tell me why the need is there . . .

G. Plant: Why should we cooperate with them?

G. Farrell-Collins: Exactly.

. . . to expand the provisions of an offence to include failure to cooperate. As the minister said, at the point we get to this stuff -- these sections coming into play -- there's probably not a really good relationship back and forth between the Ministry of Finance and the individual they're trying to get the tax revenue from. So I'm wondering: why the need for failure to cooperate? And it puts that onus on somebody.

Hon. P. Ramsey: Here's my understanding of why this provision is being incorporated here. First, the offence sections of all the consumption acts that we're dealing with here -- Hotel Room Tax Act, Motor Fuel Tax Act, Social Service Tax Act, Tobacco Tax Act -- are being amended to eliminate reference to what are called minor infractions and to bring consistency to those provisions of these acts, which are very similar.

All of those acts -- the Motor Fuel Tax Act, Social Service Tax Act, Tobacco Tax Act -- currently have a provision in them that a person subject to an audit or inspection must provide all the information requested by the director or commissioner and that failure to do so is an offence. All of them except this act already do that. But they are called minor infractions or minor offences. Those provisions are all being repealed, and for consistency we're moving them all into this clause.

At the same time, we're making the Hotel Room Tax Act consistent with the other three in saying that failure to provide information requested is an offence. That's what this provision is doing. I don't think it's as momentous as the debate that we're having about it. The offence is there currently in all acts except the Hotel Room Tax Act -- these four. It's being moved to this section, because we're repealing

section 38(1).

[1520]

G. Farrell-Collins: Again, perhaps the minister can tell us why it's necessary to take out the minor provisions and put in failure to cooperate as a catch-all which, one could argue, is now elevated to the level of a full offence.

Hon. P. Ramsey: We need to retain it simply in order to carry out the business of doing audits and getting information. Otherwise, somebody could simply say: "I'm not cooperating; I'm not giving you the information."

Interjection.

G. Farrell-Collins: Thank you; I appreciate that. My colleague was trying to make a point. I'll try and make it to the minister, but let me ask a question first. The minister is telling me why they need to retain something in the act. He's not telling me the rationale for the two amendments. Why change from what's there now to what the government is trying to put in?

It seems to me that what the government has now done is that instead of having two classifications of offences -- i.e. the hinder-molest ones, which I would say are class 1 offences, if you want to put it that way, and then sort of class 2 offences, which are about failing to give certain information when requested, etc . . . . What the government is doing is wiping out class 2 and getting rid of all those -- the failure to provide information -- and is instead elevating them to a class 1 offence and sticking them in there, right at the front, as failure to cooperate. That, in effect, is what the amendment is doing. What the minister needs to do is explain to us why he needs that amendment.

Hon. P. Ramsey: I'll try to be to your point, because you're really . . . . I think the member is looking at

section 14 in conjunction with

section 13 and asking: "So why are you doing

section 14 and moving this one provision of

section 38 up into the provisions of

section 36(1) under

section 13 of this act?"

G. Farrell-Collins: Yes.

Hon. P. Ramsey: Okay, good. The reason for saying that we're going to do away with those and rationalize the offence

[ Page 15082 ]

provisions is to make sure . . . . Well, first, we are doing exactly that. We have a rationalization of offence and prosecution provisions of the act and other acts. Under the existing provisions, any infraction -- regardless of how minor or unintentional, including something like failure to post a certificate of registration -- is deemed to be a prosecutable offence and is subject to court-imposed fines and terms of imprisonment.

Well, the province simply doesn't do that. It doesn't prosecute for those offences, for minor and unintentional infractions. Therefore including those minor offences, as I understand it, provides little guidance to assist the court in determining what's serious and what's not. As I understand it also, the courts then become hesitant to impose the higher penalties of serious infractions, because it's not clear what's serious and what isn't. So what we're doing in this act -- and it's paralleled in others, as you've pointed out -- is removing the offence provisions under

section 38(1), the references to unintentional infractions. They will still be subject to administrative compliance measures, but you don't go to court and prosecute and seek jail time.

[1525]

G. Farrell-Collins: So the minister is removing those smaller provisions from the act . . . .

Interjection.

G. Farrell-Collins: Right. But earlier the minister said that the reason for needing the failure-to-cooperate provision under what is an offence is because the government is removing these small items from the list. What the minister is saying is . . . . He's arguing two things, and I can't mesh them. Perhaps he can mesh them.

He's arguing two things. One is that we need to get rid of these little provisions, because we really don't use them anyway. It's not very good to have them in there; it clouds things. And then he's arguing that the reason we need to elevate and put cooperation in with all the other major offences is because we're removing these little things.

If the minister is saying that they're not important, so they're going out of the act, then why do they go back in the act as a full-fledged offence under the category of failure to cooperate?

Hon. P. Ramsey: I'm sorry if we have not understood each other on this point. First, the removal of the minor infractions from

section 38 of the act as prosecutable offences and moving those down under

section 14, the next one we're looking at, is simply to say that you shouldn't be prosecuting those. You should have administrative ways of dealing with that sort of thing. I think we're in agreement that that makes sense.

What I hope I didn't misstate is the idea of failure to comply or cooperate. That is not seen as minor. Failure to cooperate is seen as something that can indeed block the ability of the administrator and officers to actually enforce provisions of the act. So, yes, it is seen as something that is important. That is why it is being included in

section 36(1) of the act, under

section 13 of Bill 3.

G. Farrell-Collins: Now that we've returned from the minister's segue into

section 14, which I never raised at all but rather the minister raised as an attempt to justify the need for the cooperation provision in this section, let's get back to the beginning of the debate.

The minister, then, if I heard him correctly, is saying that a failure to cooperate -- to provide information that's asked for, etc. -- is, in his opinion and in the government's opinion, as severe an offence as interference, hindrance or obstruction. Therefore the government intends to elevate to the same level as those others that I just mentioned the offence of failure to cooperate, without defining what failure to cooperate means. Is that correct?

[1530]

Hon. P. Ramsey: The member is correct in saying that we do consider this

section important to administration of the Hotel Room Tax Act. Failure to provide information under the inspection and audit provisions of the act can indeed not only impede but frustrate application of the act. That is an offence of seriousness, we believe, and we have included it along with the other matters that you've talked about in this act.

G. Farrell-Collins: I would hazard a guess here as to what's happened. The minister is saying that failure to cooperate means not providing information, not being forthcoming, and that that in fact . . . . I think his words were that that hinders the investigation, etc.

If failure to provide information meets the test of hindering an investigation, obstructing an investigation or molesting somebody attempting to engage in an investigation, audit or examination, then I would think that the government could be able to prove that in court.

I would hazard a guess that what has happened is that the government tried to do that and failed that test and lost the case, whatever it was. Perhaps the minister can advise me if that is what happened. The government lost that test in court, came back and said, "The court has said or perhaps the ministry themselves have determined that failure to provide information doesn't meet the test of hindering or obstructing or molesting," and then has gone and drafted this legislation, this catch-all failure to cooperate.

At no point that I can see in this amendment does the government define what failure to cooperate is. It's a very broad offence provision. It could be consistently not showing up on time at your place of business when the auditors arrive. It could be taking your time to rummage through the attic finding information, or perhaps looking for it and not finding it, because your filing system isn't very good, and the auditor has to get up in the attic and rummage through there and find it. There could be all sorts . . . . It's such a broad provision, this failure to cooperate.

Perhaps the minister can tell us what it means. What is the definition of failure to cooperate? How broad is that? How malicious does that failure to cooperate need to be before it becomes an offence?

Hon. P. Ramsey: I will go back to the starting point of this debate as well. All of the acts that we're debating around these provisions -- the Hotel Room Tax Act, the Motor Fuel Tax Act, the Social Service Tax Act, Tobacco Tax Act -- now contain a provision that requires a person subject to an audit or inspection to provide all the information requested by the director or commissioner, except the Hotel Room Tax Act. We are putting that into the Hotel Room Tax Act by

section 13, the one that we are debating now.

[ Page 15083 ]

G. Farrell-Collins: That may be the case; it may not be the case. I'll argue that in a minute. If the minister is saying that because and only because of the lack of legislation that requires information be provided when requested -- his statement is that that doesn't exist in this act -- we need to create this provision of failure to cooperate . . . . Let me ask, first of all: is that the case the minister is making?

Hon. P. Ramsey: We are providing consistency across the acts. Failure to cooperate with an audit or inspection by providing the information, by providing the records, is an offence under the other acts, and now it will be under this act.

G. Farrell-Collins: Then perhaps the minister is going to be able to explain to me when we get to the other sections in this bill, where failure to cooperate is also added to the offence provisions there, why it's required if it already exists in the act.

Hon. P. Ramsey: We'll wait till we get to those sections.

[1535]

G. Plant: I also want to pursue a line of questioning here, but it would be very helpful, as a beginning to that line of questioning, to ask if the minister knows the answer to this question. Is failure to cooperate currently an offence in respect of any other provincial taxation statute? I want to be really precise about this. I'm no longer interested in talking about specific acts of failing to provide documents. I'm talking about the word "cooperate" as an ingredient of an offence. Is that word already in the laws of British Columbia in respect of taxation statutes -- in offences under those acts -- or are we doing this for the first time now?

Hon. P. Ramsey: I'm advised by staff that the words "to cooperate with an inspection, audit or examination" do not occur in that particular wording in the other acts. The concept that you must provide records and books, you must avoid hindering or molesting or interfering with an inspection audit, you must not prevent or attempt to prevent a person from carrying out an inspection -- that language and that concept are there.

G. Plant: I followed the debate that preceded this debate, and I have all of the concerns that my colleague the Opposition House Leader has, but I want to add this to those concerns. I think "cooperate" is just a stupid word to use when you're talking about creating a quasi-criminal offence. That's the point. Cooperation is about working together. I want to be really careful and really precise about this, because some poor soul is going to get dragged in front of some poor judge, and they're going to spend a day arguing about the word "cooperate." What's going to be at stake is thousands and thousands of dollars, not just the pleasantries of an afternoon in this chamber.

We're talking about creating quasi-criminal offences which, so far as I know, have thousands of dollars in fines at stake and perhaps the possibility of imprisonment. And we're not talking about the state and its citizenry getting along when we're talking about criminal law; we're talking about people who are alleged to have broken the law, and that's usually pretty serious stuff.

The word cooperation, in The Concise Oxford Dictionary , means "working together to the same end." And cooperate means "work or act together . . . concur in producing an effect."

I don't get to first base with the notion that the business of creating criminal offences in the laws of British Columbia has any sense when you're talking about making the taxpayer and the tax collector work together. Somehow the picture of them holding hands doesn't make sense to me.

"Hinder," "molest," "obstruct," "prevent" and "impede" are very good words to use in a criminal law context. You have an obligation, taxpayer, to do something; you have obstructed that. You have stopped it; you have prevented it from happening. That's something that you the taxpayer did all by yourself, and you are a bad person for doing that.

But no, no. We're now going to take all those concepts, and we're using this word that I think is a high-risk word. We're talking about failure to cooperate. Yes, we're actually talking about refusal to cooperate. This is not a debate about the difference between refusal and failure. It's a debate about whether or not the word cooperate is the right word.

The

section that we're looking at does have those other words in it -- the "hinder" word, the "molest" word, the "obstruct", the "prevent" and the "impede" words -- that are there through these other taxation statutes. But now we're saying that you don't just have a kind of moral obligation, taxpayer, to work with us. You don't just have a kind of citizenship obligation.

[1540]

G. Farrell-Collins: You have to like it.

G. Plant: You have to like it. And if you don't like it . . . .

All of the examples my colleague gave are precisely on point. It seems to me that the government is overreaching here and that this is the wrong word to use. It's the wrong concept to introduce into quasi-criminal taxation statutes, and I really urge the minister to reconsider that.

In fact, I don't think there's any disagreement on this side of the House with the idea that someone who refuses to comply with the statutory obligation to produce a record should have some sanctions. If the taxpayer in question knows that the obligation is to provide the records that he's been asked to provide and then fails to do it, there's some certainty. There's certainty around what his or her conduct is, and there's certainty around what the consequences will be for failure to comply with those rules. But here, failure to cooperate . . . . I just think it's bad lawmaking.

G. Farrell-Collins: The member read from the dictionary the definition of cooperation. I can remember watching "Sesame Street" when I was a kid, and there was a song about cooperation. It all had to do with getting along and helping each other and making things work. As the minister highlighted earlier, at the point where this act comes into force and these offence provisions come into force, there aren't a lot of smiling people in the room. Generally, it's broken down.

I think the government has, right now, words in its legislation that will demand that those individuals comply with a demand for information. They're: " . . . hinders or molests or interferes with an inspection . . . prevents or attempts to pre-

[ Page 15084 ]

vent a person from carrying out an inspection, audit . . . . " If the issue is that without the word "cooperation," there is no provision that would require an individual to provide documents, then what this

section should say is "refuses to produce records or books of account as required." The act says you have to do that, and this says that if you fail to do that, then it's an offence.

Cooperation is just such a lovely, wonderful word. It could be interpreted to mean anything; it's so broad. Now you're going to throw this in front of the courts. This is the thing that drives the courts crazy. It's a thing that drives citizens around the bend when they end up in a court and find out: "Not only do I have to provide all this stuff, but if I refuse to cooperate, I'm in trouble." Lots of people don't like paying their taxes. Some people don't mind. But many cases . . . .

There are countless cases where the government has passed a law that says this is what the tax is, this is how much you have to pay and this is the

interpretation of the act. Then they go out and try to collect it, and the taxpayer, very legitimately, says: "That's not how I read it. I and my lawyer or my accountant say that this is what it means." You both have good arguments. Those arguments go before a court at some point. But in the meantime, it can get pretty ugly between the tax collector and the person who's required to submit the tax. If the tax collector has these nice little words about "failure to cooperate" in the form of a big mallet ready to beat the person silly if they fail to cooperate . . . .

Does "fail to cooperate" mean you're not happy about it, that you're objecting? A citizen reading this or lawyers reading this could say: "You know, if you get on the phone with the tax collector and tell him to take a hike and you don't agree with the act, and you have a big argument about what the act is and slam the phone down and end up exchanging some harsh words . . .

G. Plant: Two years.

G. Farrell-Collins: . . . that's a failure to cooperate." As my colleague points out, you can go to jail for two years for that. I think that if you're going to have that kind of provision and that kind of penalty, the government should be very clear about what it means. "Failure to cooperate" is not clear. It's far too expansive, given the penalties that can arise from that being construed as an offence. If what the government is trying to do is say that you must provide documents when requested as it pertains to this act, then say that. Make that an offence. But don't make "failure to cooperate" an offence. It's far too broad.

[1545]

Secondly, the minister says it appears everywhere else. This is the only place it appears. That can't be the case, because there are about three or four or five sections of this bill before us today -- this very bill before us today -- where we're adding "failure to cooperate" to a whole bunch of other legislation. It doesn't currently exist in legislation, as the minister says. It will exist if we pass this legislation.

That's what's before the House today: whether or not "failure to cooperate" is something we want to seed and sow into the fabric of every piece of tax collection legislation that's out there. I think the minister and the government are heading for disaster with that kind of a provision in there. I know that the taxpayers are heading for a disaster trying to deal with what that means -- "failure to cooperate" -- when it appears that all it really means is that the government wants to be able to enforce the requirement to produce documents. If that's what you want, then say that. Put that in the legislation, but not these airy-fairy words "failure to cooperate" that are there now.

Hon. P. Ramsey: That was an impassioned speech in favour of cooperation, I think, but not necessarily the word "cooperation."

Let me say this first. The offence of not cooperating does exist as a minor infraction in the other acts, except the hotel act. I believe it exists with the word "cooperate."

Interjection.

Hon. P. Ramsey: No? Okay. Thank you.

Second, you might actually make the argument that a taxpayer's interests -- in actually figuring out what the heck his or her obligations are and refuting somebody who might say, "Your obligations are this," when they're actually that -- would require cooperation to provide the necessary records and get the necessary analysis done.

But having said all that, in the interest of cooperation in this chamber, hon. Chair, I'll agree to stand down at this section, and we'll proceed with

section 14 and following. I'll ask staff to take a hard look at this and see if we can find an alternative.

The Chair:

Section 13 is stood down.

section 14.

G. Farrell-Collins: I thank the minister for doing that. I think that if staff goes back, better wording can be found, and it can apply to the other legislation and perhaps will head off a problem in the future.

With that, I'm prepared to move to

section 17 for debate.

Sections 14 to 16 inclusive approved.

section 17.

G. Farrell-Collins:

Section 17 is the provision that reduces the small business income tax rate from 5.5 percent to 4.75 percent. At the time it was announced, it was the lowest in Canada. Now it's the lowest, I think, in western Canada. By the end of the year, it might be the lowest in British Columbia. But that's a provision that we support. If the government buys into the fact that you can reduce income tax rates without damaging government revenues in such a severe way that you gut health care and education, I hope that they will take up that argument in other provisions of tax revenue, particularly personal income tax cuts also.

Hon. P. Ramsey: The member is quite right. We had the great privilege of having the very lowest small business tax rate in Canada for one day. New Brunswick beat us by a quarter of a percent. So I guess you could say we're the lowest west of Fredericton, which is a substantial portion of the country, hon. members. I am very pleased that we are introducing this. I think it does signal to the small business community that we value their vital role in job creation in B.C.

[ Page 15085 ]

[1550]

[T. Stevenson in the chair.]

Section 17 approved unanimously on a division. [See Votes and Proceedings .]

section 18.

The Chair: We'll just wait for a moment while those members who need to get about to other business do so.

[1555]

R. Neufeld: This

section obviously changes the expenses that are allowed under the qualified mining exploration expense. I can only assume -- the minister is here, and maybe he could respond to it -- that there were some problems related to what has transpired in the past over this and that this is a correction to look after some problems -- that maybe some expenses were claimed that shouldn't have been. Would that be correct to assume?

Hon. P. Ramsey: This is straight clarification, to harmonize with the federal provisions.

R. Neufeld: Okay. I see that in the act. I wonder, then, why we backdate it to July 31, 1998, and before August 1, 2003. Why would we backdate something, then?

Hon. P. Ramsey: Because that is the life of the program -- those dates.

R. Neufeld: Would it be fair, then, to assume that the government intends to go back on some of the claims that were made and reassess them back to July 31, 1998? Would that be fair to say?

Hon. P. Ramsey: This only applied in future audits. We're not going to go back and redo past stuff.

R. Neufeld: I guess I have a bit of trouble with that explanation, because you have specifically put a date of July 31, 1998, in there. To conform with the federal act, I guess . . . . I'm not sure whether the federal act changed in the meantime or whether the federal act has always been like that. Maybe it was an error in drafting to start with. But if I go on, I read -- and this is authority for the Ministry of Energy and Mines -- that

section 18(d),

section 25.1(1)(9)(

a) says: " . . . collect any information that is relevant to an application for a tax credit being claimed or already claimed under this

section . . . . "

[1600]

Can the minister explain to me why that wouldn't be necessary, then, if we're going to go from today forward and not backdate to July 31, 1998? It definitely leads me to believe that the minister can go back to that time and reassess some of those expenses.

Hon. P. Ramsey: The intent of subsection 9 here is to actually encourage exchange of information between the Ministry of Finance and the Ministry of Energy and Mines and to avoid duplicate gathering of the same information.

Obviously the Ministry of Finance would already be able to gather information relevant for an application of a tax credit under this act. What this provision does is allow that information to be gathered by the Ministry of Energy and Mines and furthermore to share that information with the Ministry of Finance. The Ministry of Energy and Mines already collects a good deal of information that is relevant to application of these provisions of the act. Therefore, rather than go out and do it again, we can simply ask the Ministry of Energy and Mines to provide it, relevant to application of this Act.

R. Neufeld: I guess I have another question about that. That's an interesting explanation. Maybe I'm unaware of this. Can the Ministry of Energy and Mines and the Ministry of Finance not share information on tax credits without having to write into legislation that you must do that?

Hon. P. Ramsey: Welcome to the wonderful world of FOI.

R. Neufeld: I appreciate his response. I guess it's thanks to the wonderful world of the NDP. But in any event, we'll let that one go.

I would like some comfort, though. I mean, for the minister just to say that, no, it will be from this day forward -- that's really not the way I read this. I have some fear that there will be some backdating. I'm not aware of any; I'm not aware of anyone that is fearful of this. I'm just saying that if that's what we're going to do -- it's from this day forward -- why wouldn't we state that somewhere in this section? We leave it pretty open-ended, because we do say it's for the whole program. I understand what the minister says about July 31, 1998, until the expiry of the program.

But there's no assurance other than the minister just standing in the House saying: "This will not happen." It's really not in the legislation. Is there some other way that we can do that?

Hon. P. Ramsey: Let me just say this. First, on subsection (9), I just can't let it pass. The Freedom of Information and Protection of Privacy Act does allow the protection of personal information. I think we want, when that information's going to be shared, clear provisions for how and why and what uses it's going to be put to. That's what subsection (9) does.

As for why

section 18(c),

section 25.1(1)(

b) sets the time period of July 1, 1998, to August 1, 2003, as I said, those are the dates of the program. An audit, even an audit that the federal government may start next year, could well be retrospective to that date. So you need to be able to have the provision consistent and to treat people consistently across the entirety of the program, and that's why it's there.

Do we intend to go and open a whole bunch of new audits for stuff that's already been cleared and filed? No, we do not. I don't know how you'd do that in legislation, though. That is administration and implementation of

an act, not the legislation.

[1605]

R. Neufeld: I guess we have it on the record. I appreciate the minister being as clear as he was on the record that they won't be retroactive.

I have another question on

section 18(c), and it's on (d). It says: " . . . in respect of goods or services acquired by the taxpayer that are all or substantially all provided in British

[ Page 15086 ]

Columbia . . . . " Maybe the minister will understand where I'm going to come from on this, because he comes from the north also.

Mining occurs in many parts of the province and could occur way up in the northwestern part of the province, where it's much closer to Whitehorse to access goods and services than it would be out of British Columbia. I just wonder . . . . To me, it seems as though this

section says that you have to use all, or just about all, out of British Columbia. I don't think that that's going to possible all the time. I just wonder if there will be -- and maybe the minister can give me some assurance that there will be -- some latitude in the regulations to address those kinds of concerns.

It could happen in the Kootenays, also, in the southeastern part of British Columbia, where it's much closer to Alberta than it is to access those services out of British Columbia. If the minister could just give me that assurance that in the regulations he will make some adjustment for that, we'll let that go.

Hon. P. Ramsey: I think, by the provision of the phrase "or substantially all" what we've sought to do is provide some flexibility in administration of the act without throwing it so wide open that you could claim a tax credit for goods or services that have nothing to do with British Columbia. So the "substantially all," I think, is an attempt . . . .

I mean, we could simply have said: " . . . in respect of goods and services required by the taxpayer that are all provided in British Columbia." That would provide, I think, the sort of watertight application of it but could indeed result in the sort of difficulties that the member is talking about. Adding in "substantially all" preserves the principle but provides flexibility in its administration.

R. Neufeld: I've just one last question on that same section. I'll ask the minister again: will he give us some assurance that in the regulation there will be something said -- so that you will in fact deal with that in as fair a manner as you can? I realize that it doesn't say all, but it says substantially. You could have a program in northwestern British Columbia that would have nothing coming out of British Columbia. It could have everything coming out of Whitehorse or Watson Lake or something to that effect, just because of the closeness, the proximity, the roads, the access -- all those kinds of things.

It's not because the person didn't want to purchase that in British Columbia; it's just that it makes good economic sense to purchase it out of another province. If we can have more or less that assurance . . . . I understand what it says, but if he will at least give me in words the assurance that the ministry will look very carefully at it, that will be good enough.

Hon. P. Ramsey: In this, as in other provisions, as the member knows, we're seeking to harmonize with the federal application of tax credits. I believe there is the sort of flexibility of application that the member talks about under that. We intend to provide the same sort of flexibility here.

Sections 18 to 39 inclusive approved.

[1610]

An Hon. Member: Progress.

section 40.

G. Farrell-Collins: Progress in fits and starts, I would say.

I have a brief question for the minister on

section 40. This is similar to a

section which was in the Hotel Room Tax Act --

section 7 of the bill, I believe -- which we discussed earlier. In this section, this amendment of

section 35.1 of the Motor Fuel Tax Act, in the explanatory notes, although it doesn't say it in the actual

section itself . . . . It says at the end of subsection (2) that somebody who collects the money on behalf of the government for motor fuel tax: " . . . is deemed to hold the amount in trust for the government and for the payment of the amount to the government in the manner and at the time required under this Act and the regulations."

The explanatory note at the very end says: " . . . to hold the amount in trust for the government and apart from the person's other money." I'm assuming that the "apart from the person's other money" either (

a) appears elsewhere in the act, and I haven't been able to see it, or (

b) is prescribed in regulation. Can the minister tell us what that means -- held "apart from the person's other money"?

Hon. P. Ramsey: The provision does require that the person that collects motor fuel tax, or an amount as if it were, hold the money in trust for the government apart from the person's other money. This may well be an error in the drafting of the notes here. As the member says, the words don't reflect that. The principle, as I've talked about earlier with regard to

section 7, is that you don't have to have a separate bank account. You do have to have a separate accounting entry for money that's held in trust for the government in respect to motor fuel tax.

G. Farrell-Collins: Then the minister is assuring me, at this point, that one is not required to go out and set up another bank account and put all the money there -- deposit it separately, account for it separately. I'll take that as his comment.

Perhaps in the intervening period, as we go through the act, it can be determined what that means, then, under sub (2) " . . . in the manner and at the time required under this Act and the regulations" -- how that money does need to be held. It may be an error in drafting, but it's not a typo, and it's not a spelling mistake. It's a whole sentence there in the explanatory notes. I'm wondering if, in the regulations that are to follow, that will be the case, or if at some other point in the act that I'm not aware of that's currently the requirement.

Or perhaps it was an amendment that was also considered to be part of this when it was being deliberated upon and then determined not to go that way. I'd be curious to find out where the origin of that came. But in the meantime, I'm prepared to move ahead, given the minister's assurance that that's not the case and not intended to be the case.

Hon. P. Ramsey: It was not the case. It was not intended to be the case. Staff are unaware of any potential amendment that would have required it to be the case.

G. Farrell-Collins: The subsection (3) of the bill . . . . The reason why I'd just ask the minister to perhaps check on that while we're doing this is because that would be a fairly onerous provision, to have every business in British Columbia open another bank account to put their tax in. That would be a bit of a problem. I'm not quite sure what's the intent of that. I know it's only the explanatory note, but it didn't come out of nowhere. Perhaps the minister can explain it.

[ Page 15087 ]

The reason that I'm curious about that is because the following subsection, subsection 35.1(3) of

section 40 of the bill, is an interesting one. I want to read it into the record. It says: "Until an amount of tax and an amount collected as if it were tax referred to in subsection (2)" -- so until money you've collected as tax has been remitted to the government -- "are paid, the unpaid amount forms a lien and charge on the entire assets of the person who collected it, or the person's estate in the hands of any trustee, and has priority over all other claims of any person."

Is the minister telling me that if I have a business and I've collected motor fuel tax at that business -- an incorporated entity -- and that tax has not been remitted to the government, in effect there's a lien on my home, my summer cottage, my car -- whatever? Is that what this provision is intended to do?

[1615]

Hon. P. Ramsey: It's a lien on whatever the incorporated entity is that's collecting the motor fuel tax.

G. Farrell-Collins: The minister is saying it's a lien on the person as defined under the . . . . A corporate entity being a person . . . . Okay, that's fine. So I'll wait . . . .

Interjection.

G. Farrell-Collins: My colleague has a question, so I'll let him ask his question.

G. Plant: I was able to follow some but not all of the earlier debate on this section. But I want to go back to subsection (2) and the requirement to hold funds in trust. Does the government mean by this that the funds will be held in trust subject to the ordinary private law rules around trusts, which include questions and considerations about what happens when you mix trust funds and how you distinguish trust funds from non-trust funds and all of that other stuff? Is that what the government has in mind here?

G. Farrell-Collins: Is this big I, big T? Or is it little i, little t?

Hon. P. Ramsey: Small i, small t -- you're holding these funds in trust for the government; that's all it means. All those other provisions of trust funds don't apply to this. I hope the member also heard my discussion with his colleague about whether this required separate accounts and whatever. It does not.

G. Plant: I did hear that, and I appreciate that that's the government's intention. What was behind my question was to find out whether, as a practical matter, taxpayers are going to be able to rely on that assurance or in fact have to act prudently and open separate accounts. It was in that context that I asked my question. I think the minister is saying that, in effect, if the funds are separately accounted for in the books and records, then that is the extent of the trust that the taxpayer has in relation to those funds.

Hon. P. Ramsey: A similar concept and, staff say, the same wording have existed for years in the Tobacco Tax Act, the Social Service Tax Act and the Hotel Room Tax Act. It hasn't created those sorts of difficulties there, and I wouldn't expect it to create them here.

Sections 40 to 43 inclusive approved.

section 44.

G. Plant: This provision raises for the first time in the bill the issue of warrantless searches, warrantless inspections and warrantless seizures. In the first subsection of

section 49, which is entitled "Inspection powers," there are provisions that allow a justice to issue a warrant authorizing a peace officer to enter and search premises, and so on, in order to inspect and take samples and so on.

Then in subsection (2) it goes on to say that if a peace officer has reasonable grounds to believe that some of the sections of the act are not being complied with, and it is impracticable to obtain a warrant, the peace officer may, without a warrant, stop a motor vehicle and inspect its tank or container. So there are circumstances in which a peace officer may stop a motor vehicle and conduct an inspection -- conduct that inspection in order to pursue the possibility of offences being committed under the act -- and may do so without a warrant.

[1620]

As the minister knows, I'm sure, there is a huge body of pretty fundamental principles and some pretty technical law that relate to and define and circumscribe the circumstances in which the state -- the government -- has the power to intrude upon the privacy, the autonomy and the personal domain of individuals and their property without a warrant, and to search or seize or inspect their person or their property in order to investigate whether an offence has been committed.

As I said in second reading speech on this, the right to be free from unreasonable search and seizure is one of the most fundamental rights we have under the Charter of Rights and Freedoms. Starting from that very broad perspective, I doubt very much whether anything I've said so far would be disagreed with as a broad statement of principle by the minister. I now want to focus on the fairly narrow area of concern I have -- narrow but not insignificant.

There are two tests that have to be satisfied. There are different ways of articulating it, but let's say that there are two tests that have to be satisfied before a peace officer, a police officer, may conduct a warrantless search. The first is that the police officer, the peace officer, has reasonable grounds to believe that certain provisions of the act are not being complied with. The second is that the police officer has to have reasonable grounds to believe that it is impracticable to obtain a warrant. It's the second of those that causes me concern, in terms of whether it strikes a reasonable balance among the competing interests that I talked about a minute ago.

I recognize or would argue that the basic point here, the basic issue or question, is whether it is in fact impracticable to obtain a warrant. There's a host of reasons one might imagine why that might exist. I suspect that in this particular context -- that is, inspections under the Motor Fuel Tax Act -- we're probably talking about a roadside inspection that occurs. It's -- who knows? -- 2 o'clock in the morning on a cold winter night, and we're somewhere between Taylor and Fort St. John.

The truck has been pulled over, and right then and there the police officer forms a belief, presumably on reasonable grounds, that there are offences committed under the act. He then decides that it's impracticable to obtain a warrant, so he conducts the inspection. The way this

section is worded,

[ Page 15088 ]

though, the issue is not whether it is impracticable to obtain a warrant. The issue, as the

section is worded, is whether the peace officer has reasonable grounds to believe that it is impracticable to obtain a warrant.

On this side of the House, we would not have a problem if the test under the act were simply a question of impracticability. That would mean that if you took the case into a courtroom to challenge the warrantless search, the judge would be forced to inquire into whether as a matter of fact it was impracticable to obtain the warrant. But as the

section is worded, that's not the inquiry that the judge would undertake. As the

section is worded, the inquiry for the judge would not be whether it was in fact impracticable, but rather whether the police officer had reasonable grounds to believe it was impracticable. I think that is erring a step or two too far in favour of, shall we say, the state at the expense of the individual's liberty rights.

[1625]

I'm going to continue. I know I'm going on at some length. I wonder if I could impose on the minister to indicate whether he's getting the point I'm making enough so that I can continue. It's a pretty subtle point, and maybe what I should say is that this may simply be a result of the way in which the provision was drafted. That is, the government may not intend the result that I believe has been achieved by the words used.

I am very firmly of the view that the result has been achieved by the words used. I'm equally firmly of the view that it wouldn't be hard to rewrite this

section to limit and focus the inquiry on the issue of impracticability, not on whether or not the police officer just has reasonable grounds to believe it's impracticable.

I should point out that when you look at the Criminal Code, for example, the test is even tougher -- and rightly so, because they're dealing with pure criminal law. There's even a requirement that it be impracticable by reason of exigent circumstances -- that is, the circumstances that constitute impracticability are further narrowed. I'm not going to push that point here, but it does seem to me that the government is taking a step or two further than it needs to by drafting the provision in the way that it has. In doing that, what it has done is essentially lowered the burden on the Crown to justify the warrantless seizure. I wonder if the minister has any response to those comments.

Hon. P. Ramsey: The member has raised a number of points. Rather than seek to respond to all of them, I think I'll try one and see what we've got there, and then we'll move on to the next. First, the authority for police to conduct warrantless searches is not new. If we wanted to debate the fundamental principles of that, we should have been around in 1985 when the Motor Fuel Tax Act was amended to incorporate them. What we're doing is rewriting for clarity and simplicity. As the member says, warrantless searches are necessary for the police to conduct roadside checks for illegal use of coloured fuel.

Actually, what is new in this provision is the provision requiring that a warrant be obtained. The existing legislation is silent with respect to the procedures to follow where it is practicable to obtain a warrant. That's really the new part. The amendment simply clarifies that a warrant is to be obtained under most circumstances. That's the biggest change that's made here. Maybe I'll stop there and make sure we've got agreement on that part, and then we'll go on to others.

G. Plant: The minister's explanation is right. What I should have said, as part of my extensive remarks a moment ago, is that this issue is going to arise again. The issue that is ultimately the focus of my concern here is going to arise again in another context in the same way. That is, I'm going to be concerned again about the way in which impracticability becomes the test. While the minister is right, the warrantless search provisions in the existing act are probably broader than they will become. That's fine; we're making progress. The government's making progress on this front. I want them to get it right.

I don't want them to leave this additional little problem in the new provision, which I think is going to cause the government more trouble than it needs, frankly, over time as arguments are made in court over whether or not a particular inspection was reasonably conducted within the terms of this section. I am with the minister on his explanation, but it doesn't address my question.

[1630]

Hon. P. Ramsey: Hon. Chair, I'm going to try this. I'm not a lawyer, as the member knows. I am, though, a student of syntax. I think what we really have is a syntactical argument around subsection 5(2)(

a) and (2)(b). It's really: how do we read an expanded version of this that wasn't condensed for parallelism? It could be read one of two ways. The member would have us believe that the way to read it is: if a peace officer has reasonable grounds to believe that

section 14(3) or 15 is not being complied with and has reasonable grounds to believe that it is impracticable to obtain a warrant . . . . Correct?

I submit that, on its face, that's not how it works. The way this reads is: if a peace officer has reasonable grounds to believe that

section 14(3) or 15 is not being complied with, and if it is impracticable to obtain a warrant, then . . . . I submit that you can read it that way, and it does exactly what you're talking about.

Now, I know that syntax or these clauses are also subject to

interpretation. But I would submit that once . . . . This is where I defer to my friend's legal expertise. I do believe that it's not intended that there be any substantive changes in the requirements. The new provisions require reasonable grounds for determining that you're in violation and that it's impracticable to obtain a warrant. In any resulting prosecution, my understanding is that peace officers would be required to justify the reasons for conducting the warrantless search on both those grounds or risk the court just tossing it.

G. Plant: The minister is right in one respect. It's a syntactical argument. It's a legislative drafting sort of argument. I suppose my only contribution to the exercise is 22 years as a lawyer reading good and bad legislative drafting. Based on that, I am as comfortable with my

interpretation as I was when I began the debate. The reason why I am is because it's so easy to rewrite the provisions in a way that would in fact avoid the syntactical problem.

Subsection (2) says: "If a peace officer has reasonable grounds to believe that (a)

section 14 (3) or 15 is not being complied with, and (

b) it is impracticable to obtain a warrant, the peace officer may, without a warrant, (c) . . . . " Let me ask this question, because lurking behind this syntactical argu-

[ Page 15089 ]

ment, if you will, is a policy argument, an issue around whether or not it would be right to focus the inquiry on reasonable grounds to believe it's impracticable as opposed to the actual inquiry into impracticability. Where's the minister on that point? We could stand it down perhaps and see if the legislative draftspeople think that we're talking about something real. They can deal with the syntactical argument, depending on the outcome of the policy discussion.

[1635]

Hon. P. Ramsey: I believe that what the court would focus on is the impracticality of obtaining a warrant. That's really the constitutional issue that I think this seeks to incorporate.

G. Farrell-Collins: Mr. Chair, I had to step out for a moment, so if I'm covering old ground, I hope that either my colleague or the minister will tap me on the shoulder or throw something at me from across the House.

I believe the member makes a valid point; I think the minister makes a valid point. My understanding of the debate was that it is not the intent of the government to have the legislation read that if the peace officer has reasonable grounds to believe that it is impracticable to obtain a warrant . . . . I think that's what the debate centred on.

Interjection.

G. Farrell-Collins: That's right. That's what the minister has said the intent is.

The reason I asked that is because . . . . I'm not trying to be out of order here, but I want to raise it for comparison purposes. I don't know if my colleague did that while I was out.

Section 88 of the act has a very similar provision, but it reads differently. It in fact does what the government's intention is not to do, in that it says: "If a peace officer has reasonable grounds to believe that . . . it is impracticable to obtain a warrant . . . . " The problem is . . . .

I'm not a lawyer. But if I were a lawyer in there arguing, I could argue that in order to get some sort of

interpretation on reading what the government means in this clause, if I go to another act I can look at a very similar provision where it's very clear what the government's intent is and therefore make my case to a judge that what the government isn't intending is in fact what they're doing. If I were the peace officer, that's sure what I'd be arguing, and I'm sure that's what my lawyer would be arguing in order to uphold the search. So perhaps the minister can comment on that. Perhaps we need to clean these two sections up, or something.

Hon. P. Ramsey: I think we're having a good deal of fun, but I'm not sure that we're really advancing the discussion here. My understanding is this. Whichever syntax is read, my understanding is that at the end of the day it would be the judge or the judiciary that would say, "Right, it is impractical, and the test is going to be some form of reasonableness. Right,

section 14(3) or 15 is not being complied with" -- and there were grounds to believe that. So I understand what we're doing here. But ultimately it is the judiciary that's going to say that it was or was not reasonable to believe that it's not being complied with, that it was impracticable to obtain a warrant. A peace officer is going to have to show that it was impracticable, that there were grounds for believing it wasn't complied with. I'm not sure we're advancing much in the discussion, though it is an interesting one.

G. Farrell-Collins: Well, I don't spend my afternoons here because it's interesting; whether it is or not, I'm here.

I think the act is drafted inaccurately to reflect the government's intent, particularly

section 88. Again, I don't want to be out of order, but you need the two of them for comparison to see what the intent is.

Section 88 says: "If a peace officer has reasonable grounds to believe that it is impracticable to obtain a search warrant . . . . " If that peace officer is before the courts trying to argue to uphold the fact that he or she did a search without a search warrant, all they have to . . . . They don't have to prove that it was impracticable. They have to say: "Look, I felt I had reasonable grounds that it was impracticable, and therefore I went and did it. It's really what's in my mind that is the test here, not whether . . . . "

Interjection.

G. Farrell-Collins: Well, we may disagree, but I think it's pretty clear. If it wasn't, it would say: "If it is impracticable to obtain a search warrant and a peace officer believes A, B, C . . . "

An Hon. Member: Or has reasonable grounds . . . .

[1640]

G. Farrell-Collins: " . . . or has reasonable grounds to believe that . . . . " Then you would be clear. It has to be impracticable to obtain a warrant, and then the peace officer has to have reasonable grounds to believe that an offence -- or if something's being stored, etc . . . . It's just a matter of wording, but I think it clarifies it very simply. If you were to use wording like that in both of these sections, there would be no error; there would be no misunderstanding.

You would be clear what the test was, and we wouldn't have lawyers, judges, defendants and peace officers arguing about what was in the peace officer's mind at the time the search was done. That's why I think both sections need to be spun around and clarified to remove that uncertainty.

Whenever possible, it's the obligation of legislators to provide the courts with laws that are easy to understand. If the intent of the government is that is to be impracticable, then let's say that and stop the confusion resulting in the courts, where it may or may not result in search warrants getting thrown out. It may get kicked back to the Legislature at some point. It's very simple to change. Perhaps the minister might want to consider that. There are other things that we can do.

Hon. P. Ramsey: One of the things I am concerned about in the discussion we're having is that . . . . Let's just back up and look at the reality of this. You have a peace officer on a road. He's got reasonable grounds -- or believes he has reasonable grounds -- to think that this vehicle is illegally using coloured gas. He has to make a judgment call about whether it's practicable to obtain a warrant -- whether, by the time he goes back to town and gets one and comes back to find the truck, the truck's gone and evidence has disappeared. Ultimately, both those calls of "Do I have grounds?" and "Is it

[ Page 15090 ]

practical?" are matters of judgment on the part of the peace officer. If those grounds are found to be in violation of the Charter or constitution, the case will be tossed.

I respect the concern of the members, but I am not sure that further debate on the syntax is going to address the issue. If the peace officer has got it wrong, the court won't allow the case. He's got to have some sort of grounds that say: "Yeah, I couldn't get a warrant. Yeah, I believed that the law was not being complied with." Those are the tests that a court makes. The test, as I understand it, in both of those is reasonableness. Wherever the word fits, that's what the judge looks at. So I'm not convinced that this is a

section that we need to do further surgery on.

G. Farrell-Collins: Actually, the word is "impracticable."

An Hon. Member: Impracticable.

G. Farrell-Collins: Well, impracticable is the word that is the ultimate test. The reasonable grounds fits with the belief that an offence has occurred or there is evidence to prove an offence, etc. The problem is that there are probably countless cases where a police officer has gone before a judge and said: "Well, I believed that I couldn't get a warrant, so I went and did it." There have probably been some that have been thrown out because of that -- because the test was not whether he or she believed it but whether it was in fact impracticable.

Now the government is changing that to say that as long as the peace officer believes it was impracticable, that's good enough. They don't actually have to prove that it was impracticable. They just have to say: "Look, I believed it was." Therefore it stands.

Again, this makes it much easier for the peace officers and much more difficult for the individual rights of the people who are subject to these searches. It's not like that's an uncommon occurrence. It wouldn't be the first time that a police officer has overextended, in a zealous attempt to do good, their legal provisions.

An example that I thought was interesting was in Vancouver at the fireworks last summer, where everybody carrying a pack coming off the SkyTrain was having their pack searched and alcohol seized. I mean, that happens; it happens. That, to me, was going well above and beyond what peace officers are entitled to do in order to protect public decorum, or however they want to put it.

[1645]

It's not like this is some hypothetical process. On another issue -- tobacco or, in this case, the motor fuel tax -- the police officer says: "Well, I believed it was impracticable." A police officer could have used that argument at the SkyTrain: "While we're standing there, these people were coming off the SkyTrain. The fireworks were in a couple of hours. I believed it was impracticable to get a search warrant to search all these people's packs to confiscate alcohol." Therefore it stands.

If you want to say something, say it. Don't leave it out there for people to interpret and try and decide. It's easy to say it right; it's easy to say it wrong. Let's say it the right way so that there's no misunderstanding, make the change and move on.

G. Plant: I want to be clear that, at least as I read this, the test that's going to result from the government's bill here is not purely subjective. The inquiry will be into the reasonableness of the grounds for the belief that the peace officer has.

I want to add my voice to the primary point that my colleague was making a moment ago. When this issue becomes important, we're no longer in this chamber talking about what we'd like the words to mean. Actually, we're no longer in a place where the government gets to put up its hands and say: "This is what we wanted to do. So, judge, you should just give effect to what we wanted to do." We're in a place, in a room, where there's a judge and there are lawyers. There are people whose liberty and pockets are at stake, whose finances are at stake. They argue intensely about words, about syntax. Syntax and the rules of statutory

interpretation that are hundreds of years old become all-important. They become the beginning and the end of the discussion.

Even in my limited legal career as a civil litigator, not a criminal lawyer, I've lost track of the number of occasions where we had the very arguments that we're having now about what words meant. The consequences of those arguments, for one side or the other, were very significant for the people affected. But because we were dealing with the state seeking to use its power to interfere with the liberty and the autonomy of people, the court said to the state: "If you want that right, that power, you have to use the clearest possible words.

We will interpret every ambiguity in this provision against you, government, because you're trying to use your power to interfere with the liberty of the citizen."

"So the onus is on you, state -- Crown -- to use the clearest possible words. If you don't, you won't get the result that the minister wanted back in the year 2000 when this issue came up for debate one afternoon in the Legislative Assembly."

In fact, when we go into a criminal courtroom, the words of our debate in this kind of context won't even be there to help the court. We're dealing with the actual meaning of words at this point, and when we get there, the words have to stand on their own, to work on their own. And that's the end of it. I know what the minister is saying about the likely scenario on the side of the road, but I still think that at the end of the day, when you're fighting about it in a courtroom, the court is going to care about the actual language used. That's why it's important that we get the language correct.

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I'm noticing that the minister has been working away. I'm wondering if the minister has had a chance to think about this and has a perspective on this issue.

Hon. P. Ramsey: I actually have a floor amendment to propose. It is moved by the Minister of Finance and Corporate Relations that

section 44 of Bill 3 be amended in

section 49(2)(

b) to read: "if it is impracticable to obtain a warrant."

On the amendment.

G. Plant: I take it that the effect of the . . . . What the minister has done is to add or insert the word "if" before the words "it is impracticable" in subparagraph (

b) of subsection (2). Is that correct?

Hon. P. Ramsey: That's correct, and it is to clarify the syntax so it reads precisely as I explained it to the chamber.

Amendment approved.

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section 44,

section 49 as amended.

R. Neufeld:

Section 49 -- right? You said 44?

The Chair: We're still on

section 44 as amended.

R. Neufeld: Okay. I'm sorry. I want to ask just a couple of quick questions on the RCMP end of it and also on the ministry staff in checking fuel tanks, not specifically vehicles. But the Ministry of Finance will do audits on, let's say, bulk plant facilities and actually walk in one day and ask for your last four days' deliveries, and you must give them. That person has the authority to go out and check those tanks and those premises. I see now that what we're doing is changing it for a police officer to do it. Can the minister explain to me where in the act it actually gives the government inspector the authority, the same as a police officer?

Hon. P. Ramsey: First of all, member, I want to make it clear that the amendment being proposed in

section 44,

section 49, of Bill 3 in no way affects, one way or another, the inspection abilities of agents of the Ministry of Finance. This applies entirely to peace officers. I don't know if that answers your question; I think that was the question you were asking. Yes, inspectors do have the ability to request. They sample tanks on property, and there's an expectation of compliance there, but none of this touches that one way or another.

R. Neufeld: I understand that, and we passed the amendment. I'm asking -- and I haven't been able to find -- where the inspection people that inspect the tanks on behalf of the government can come in and do this. Do they require a warrant, also, to be able to do that? This is just for clarification, because I think it runs dual with the people that work for government and go in and make these inspections, because this talks about premises.

Hon. P. Ramsey: They conduct their business on the powers to audit or inspect.

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Section 44 as amended approved.

Sections 45 to 47 inclusive approved.

section 48.

G. Farrell-Collins: Mr. Chairman,

section 48 has a similar provision to the one we discussed earlier in the Hotel Room Tax Act, which was the item being admitted as evidence in a court and therefore as proof. That's the same sort of wording that we had, I believe, in

section 8 on the Hotel Room Tax Act. I just want to check if that was the section.

G. Plant: No,

section 8 of this bill.

G. Farrell-Collins: Yeah,

section 8 of this bill, which was to deal with the Hotel Room Tax Act. Our same arguments apply in this case, about the unfairness and unevenness of that provision, and the reverse onus that it proves and its ability to be used for further enforcement. It's really the very last line, almost, of that section, and we will not be supporting that for the same reasons stated earlier.

Section 48 approved on division.

section 49.

G. Farrell-Collins:

Section 49 has the same "cooperate" provision, or requirement, that we spoke of earlier, and we stood down the previous section. If the minister wants to stand this one down until such time as we deal with them collectively at the end, I'm glad to do that, if that's his will.

Hon. P. Ramsey: I would request that we stand down

section 49 at this time.

The Chair: Shall

section 49 be stood down?

Some Hon. Members: Aye.

Section 50 approved.

section 51.

R. Neufeld: Just a bit of clarification from the Minister of Finance. Really, what this

section does is allow the Minister of Energy and Mines to enter in agreements with the B.C. Transportation and Financing Authority to borrow up to $103 million over five years to be expended on roads in northeastern British Columbia.

Maybe the minister can give some explanation of why we have to do this and why this would not just be handled through the Ministry of Transportation and Highways, which is the normal way of doing business to have roads rebuilt in British Columbia. Remember that these roads this money is going to be expended on are public highways. It's not any special road. They are highways that are used by everyone under the Highway Act in British Columbia, yet we are enacting legislation for the Minister of Energy and Mines to enter into agreements which I think are totally unnecessary.

If the Minister of Transportation and Highways was actually on the ball, he would have been doing this without the Minister of Energy and Mines having to do this. I think it's needless and a bit silly to be doing this kind of thing when all authorization is already in place to do it through the Minister of Transportation and Highways. Or maybe the minister agrees with me; the Minister of Transportation and Highways can't do it.

Hon. P. Ramsey: The member is right that these are public highways, but I would say they are public highways used almost exclusively for one purpose. Yes, there is recreation and other things, but the principal use is to facilitate the exploration and development of petroleum and natural gas resources. What it does is very clearly give the Minister of Energy and Mines a high interest in making sure that roads for those purposes are kept in good shape and expanded so that the exploration and production of petroleum and natural gas will proceed.

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Frankly, I'm surprised that the member is throwing the spotlight on this sort of commitment and that providing the Minister of Energy and Mines with this sort of interest would not be seen as a positive, particularly in his

section of the province -- which I know something of -- where this is one of the principal economic drivers and where the provision of

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adequate highway transportation has been a key, as the industry sees it and as we do, to ensure further development of the industry.

R. Neufe