1994 Legislative Session: 3rd Session, 35th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, JUNE 9, 1994

Afternoon Sitting

Volume 16, Number 8

[ Page 11717 ]

The House met at 2:08 p.m.

D. Schreck: In the gallery today are some friends from Capilano College: Mark Battersby, from the faculty association; Graham Crockart, recent chair; and Doug Jardine, president. Would the House please join me in making them welcome.

L. Reid: I would ask the House to please welcome to this Legislative Assembly 42 grade 10 students from R.C. Palmer Junior Secondary School in the riding of Richmond East.

J. Sawicki: I'm pleased to have one of my constituents visiting us today: Mr. Lou Jaccard. Lou is one of those many citizens who has spent a good number of years being very involved in what happens in this place and in what we're all doing here. I would ask the House to make him welcome.

R. Neufeld: I'd like everyone to make welcome Penelope Chandler, who was a special assistant to Rita Johnston when she was a minister and Premier.

D. Streifel: I stand today to make an introduction on behalf of my colleague the member for Surrey-Green Timbers. A friend of hers, Susan Sanderson, from Surrey is visiting us here today. Could we welcome her on behalf of the member for Surrey-Green Timbers.

R. Chisholm: Today we have with us in the gallery Mr. Brouwer and 18 students from Chilliwack Christian School. Would the House make them most welcome.

T. Perry: Would members kindly join me in welcoming Julie Gardner and Dan Moore of Vancouver, who are two prominent activists for wilderness conservation in B.C. They are with us, watching the debates today.

K. Jones: Visiting with us today is a group of approximately 26 grade 3 students from Woodland Park Elementary School in my riding of Surrey-Cloverdale, their teacher, Ms. Cathy March, and several parents. They are here to enjoy a day of fun in Victoria. I would ask the House to give them a warm welcome.

Hon. A. Charbonneau: I don't think they are in the gallery right now, but students from Lloyd George Elementary School in Kamloops are touring the precincts today. I'd like to invite the House to help me make welcome about 35 grade 6 and grade 7 students and their teacher, Mr. Thomson.

D. Lovick: Hon. Speaker, I would like to make two brief introductions, if I may. The first, on your behalf, is of a group of students who are here from Horse Heaven Hill Middle School in Kennewick, Washington. They're here as part of a normal Legislative Assembly visit, and I would ask my colleagues to please make all of them welcome.

While I'm on my feet, I would also ask my colleagues to join me in making welcome two of my constituents. Tom and Jean Nicoll are visiting with us today, and over lunch with them I discovered how small the world is. Unbeknownst to me, Tom Nicoll's daughter, Brenda Adkins, was a student of mine at Malaspina College some years ago, so indirectly I would like to extend a welcome to her, too. I hope you will join me in making them all welcome.

G. Brewin: In the gallery somewhere this afternoon is my daughter, Gillian Brewin, who is on home-stay from Namibia. She is accompanied by my granddaughter, Danielle Brewin Graham, who is 7 -- nearly 8. Would the House please make them welcome, wherever they are.

H. Lali: Visiting us today in the gallery are 37 grade 7 students from C. E. Barry Intermediate School in Hope, with their teacher, Ms. K. Warner. Would the House please make them welcome.

L. Reid: I would ask the House to make welcome Jacqueline Versaevel, who is visiting today. She was previously with Pacific Public Affairs Ltd., and I know she will be a policy analyst in this province again. Welcome.

Ministerial Statement

RESULTS OF INVESTIGATION OF JASON GAMACHE CASE

Hon. C. Gabelmann: Hon. Speaker, I rise today to inform the hon. members of the results of an investigation into the handling of the case of Jason Gamache by the corrections branch of the Ministry of Attorney General. Jason Gamache was convicted of the murder of six-year-old Dawn Shaw of Courtenay. At the time of the murder, Jason Gamache was a young offender. He was on probation and was being supervised by the corrections branch. He was receiving therapy designed for sex offenders.

I have been deeply troubled by the brutality and senselessness of the crime that took the life of Dawn Shaw. Her tragic death, and the suffering of her family, friends and the people of her community, affected all British Columbians. As we strive to understand the circumstances that led to her death, I will do everything in my power to minimize the risk of the recurrence of such a crime.

On April 14, 1994, I confirmed in this House that I had asked Deputy Minister Maureen Maloney to conduct an investigation into the case. I asked that the investigation include recommendations for changes to our corrections system to protect other British Columbia families from the horror experienced by the Shaw family and their community. To ensure that the investigation was conducted impartially, Deputy Minister Maloney engaged Ms. Barbara Fisher to investigate the case. Ms. Fisher is a lawyer and former general counsel and director of the Vancouver office of the ombudsman. Ms.

Fisher interviewed the key people involved and arrived at her independent conclusions. I wish to thank Ms. Fisher for her report and its recommendations. I will be asking leave to table the unedited report in this House today. Last night Deputy Minister Maureen Maloney met with the Shaw family to give them a copy of the report. She discussed it and other issues arising from the case with them.

[2:15]

I have instructed the corrections branch to implement all of Ms. Fisher's recommendations. Ms. Fisher reached five main conclusions regarding the supervision of Jason Gamache: (1) probation officers' workloads were so heavy that probation officers could not meet the public's expectations in supervising sex offenders; (2) provincial policies to guide probation officers who supervise sex offenders were inadequate; (3) there needed to be more information-sharing in the community; (4) probation officers

[ Page 11718 ]

who supervised young sexual offenders needed more training; and (5) not enough consideration was given to the living arrangements of convicted young sex offenders.

The corrections branch is taking the following actions in response to Ms. Fisher's conclusions. First, the workload of probation officers who supervise young sex offenders will be reduced to allow them to provide the necessary level of supervision for these high-risk offenders. In her report, Ms. Fisher confirms what the government had already recognized. The responsibilities of probation officers are increasingly onerous. Not only has the number of cases risen in recent years, the nature of those cases has changed too. More offenders require more careful supervision and control.

In response to this development, the government added $1.2 million in this year's budget for 20 new probation officers. They are being trained now. Some have finished their training and are on the job. The rest will be on the job by the end of the year. However, Ms. Fisher's report makes it clear that even these new resources are not enough, particularly for young sex offenders who require intensified supervision. Probation officers' caseloads will be reorganized to ensure that staff resources are concentrated in this area of high risk.

Second, I have asked the corrections branch to develop and implement within 90 days a provincewide policy for supervising young sex offenders. This policy will give clear guidance to probation officers and outline detailed standards of supervision, including home visits.

Third, the corrections branch will ensure that probation officers across the province notify key people regularly and consistently about young sex offenders present in their community. This policy is being implemented immediately and includes the essential requirement that, in all cases, probation officers have regular contact with therapists treating sex offenders on probation. British Columbia has strongly advocated changing the federal Young Offenders Act to allow for expanded notification. The federal government's recently announced amendments to the act will help us notify people in the community who need to know about the presence of young sex offenders.

Fourth, Ms. Fisher recommends more training for probation officers who supervise sex offenders. The training program is being enhanced now. All staff are receiving basic training in managing sex offenders. Only probation officers who complete training in this specialized field will be responsible for sex offenders.

Fifth, probation officers will be making home visits in all cases and assessing the suitability of the home. Ms. Fisher writes in her report: "Supervision and treatment, no matter how proactive, cannot eliminate all risks...." What we can do is reduce the risks. The actions I have announced today are part of a series of initiatives designed to do more to make our communities safer. No actions, no investigation and no report can return Dawn Shaw to her family. We must all work now to ensure other families do not have to face this horror.

Hon. Speaker, I now ask leave to table Barbara Fisher's Report on the Process and Procedure Followed in Supervising Jason Karl Gamache (November 1991-December 1992).

Leave granted.

J. Dalton: Again, I thank the Attorney General for the advance statement and the briefing that he kindly offered the opposition earlier today. I can fully appreciate the difficulty that the Attorney General had in releasing this report today and the comments that he's made.

On April 14, I put the following question to the Attorney General: "Why is it, in this unfortunate Gamache case, that a convicted sex offender on probation was living across the street from a family, was associating with that child and other young children, and the public had no knowledge of it?" The Attorney General, of course -- that day, in fact -- agreed to investigate it, which he has now done. The House has seen the tabled report and heard his comments.

My question on April 14 followed by one day the tabling of the Danny Perrault report in this House by the Attorney General. As I described it when I led into the estimates on April 14, the previous day was not a happy day for the Attorney General's ministry. I would suggest, unfortunately or otherwise, that it's not getting any happier. We now see the ongoing Perrault enquiry, the investigation into the Gossage case, the horrendous backlog of cases in both our criminal and civil courts, and the dubious experiment with legal aid -- just to name a few.

I'm sure the public at least welcomes some of the recommendations in this report. I will comment on one thing that is disturbing to me, and I'm sure disturbing to the people in the Comox community if nowhere else: there are three separate references in this report to where the RCMP in the

Comox-Courtenay area were not notified at any time that Jason Gamache was living in that community. In fact, they did not know about it until the unfortunate events of October 24, 1992. The Attorney General and Barbara Fisher have commented on that issue, but that's one thing that came out of the report that I wish to put on the record.

What we are really dealing with as the overall theme is public confidence and public safety. To demonstrate that, I have in my hand an ad that is currently running in the Langley Teachers' Association newsletter. This is advertising for members of the community to come forward as host families for the placement of young adolescents. For young adolescents, read young offenders. Unfortunately, the words "young offenders" do not appear in this ad. This is a program that is sponsored by the Focus Foundation of British Columbia.

The point I'm making is that the public has to be notified. The public needs knowledge in advance as to how young offenders are being dealt with in their communities. Of course, as I've commented, the issue is public safety and public confidence. I just cite that and put on the record that there are ongoing problems. I can appreciate that the Attorney General does not have an easy job, but he has a very responsible job. What is clearly missing, as we are continually and daily learning from the Perrault inquiry, is public confidence and public safety.

Have we learned from Gamache? Yes, of course we have. We do have this report and a series of hopefully effective recommendations that will be put in place. But whether public confidence and public safety will be honoured and respected remains to be seen.

J. Weisgerber: First of all, I'd like to congratulate the minister on the action that he took to initiate this investigation and report. Secondly, I want to congratulate him for moving quickly to act on all of the recommendations made in the report. Dawn Shaw's death was indeed a tragic and heartbreaking event. Both federal and provincial governments have an obligation to ensure that we do everything in our power to prevent similar events in the future.

Unfortunately, I don't believe this report goes far enough. It only deals with young sexual offenders while they are on probation; the need goes beyond that. We need a national sex offenders registry that can ensure appropriate levels of

[ Page 11719 ]

disclosure for all offenders of all ages, regardless of whether they're on probation. I'm disappointed that this report doesn't make a recommendation in that regard. The report could have moved that forward -- something that's under consideration now in a White Paper released in Ottawa that at least deals with young offenders. I want to urge the minister today, as I've done before, to press the federal Minister of Justice to establish an appropriate and adequate national sexual offenders registry. This case points up once again just how critical that issue is.

I'd like to conclude by extending, on behalf of our caucus, our sincere condolences to the Shaw family and to the friends, relatives and neighbours. I trust that this action and future actions by the government will provide comfort in some small measure to the family that these events do trigger actions and that governments do respond.

G. Wilson: I ask leave to respond to the ministerial statement.

Leave granted.

G. Wilson: In a manner similar to my colleague, the House Leader of the Reform Party, we first of all must pass on condolences to the Shaw family. We do congratulate the Attorney General for taking the measures he has.

But there's more to this issue than is contained in the report. We have in Powell River right now, for example, an issue where a sentence of two years probation was passed for a very similar instance. It has outraged the community and shocked the prosecutor that such a simple sentence would be passed on an individual convicted of sexual offences.

The shock waves that radiate throughout the community when these kinds of actions are taken signal to us that we must start to look very seriously at the law with respect to providing adequate and proper sentencing in its initial stages. Second, we must look at probation and the consequences of probation for those offenders. It is sad that we often see repeat offences by people who have not undergone rehabilitation -- people who are still and will continue to be a danger to society.

[2:30]

I applaud the Attorney General for the initiatives undertaken so far. I don't think it goes far enough. We would echo the comments made by the House Leader of the Reform Party. It is time for a national registry. It is time that all legislative assemblies across this country took strong action on these questions. We should take the question of youth out of sexual offences, and we should pass legislation that will affect all offenders, regardless of their age.

Oral Questions

NANAIMO COMMONWEALTH HOLDING SOCIETY

G. Farrell-Collins: My question is for the Premier. Yesterday, when the Premier was pressed about the need for a public inquiry into the NDP's possible involvement in criminal activities in Nanaimo, he said:

"The best information I have is that charitable moneys were involved in charities and not political donations. I have taken the word of the provincial secretary and the treasury people at our party headquarters that there were no charitable funds coming over for political purposes."

I have in my hand copies of the financial statements of the Nanaimo Commonwealth Holding Society for the years 1988 to 1991, and they list thousands of dollars as expenses under the heading of "Politics." Will the Premier agree that this direct and indisputable link to criminal activities in the Nanaimo area with the Nanaimo Commonwealth Holding Society warrants not only an independent audit but a full, independent public inquiry?

Hon. M. Harcourt: As I said yesterday, I am going to respect the due process that is taking place before the courts right now. At the conclusion of the sentencing hearings and appeal procedure, I would hope that the special prosecutor would be prepared to release his report. When we see what his report has to say, we will then have the necessary information to see where there may be gaps or questions. At that time I would be prepared to consider the question that has been put to me.

The Speaker: The hon. member has a supplemental?

G. Farrell-Collins: In the last two years the Premier hasn't even tried to find out if money came to his own political party. He had the opportunity; he just had to ask. And he hasn't even tried to find out.

Let's look at the things this government thinks...

The Speaker: Your question?

G. Farrell-Collins: ...are appropriate for a full public inquiry.

The Speaker: Order, hon. member. Please put your question.

G. Farrell-Collins: Hon. Speaker, when the New Democrats were in opposition, they asked for public inquiries into giving a community grant to a recycling company owned by a campaign manager, into the granting of a pub licence to a friend of the former Premier; and into giving, in an attempt to sell personal property, a business card to someone who was presenting to cabinet. This is ten times -- a hundred times -- worse.

The Speaker: Your question?

G. Farrell-Collins: The public wants to know if the New Democratic Party was involved in fundraising activities that were criminal. Will the Premier commit to a full, independent public inquiry that will take place, if he wants, after the appeal process has taken place? Will he commit to that inquiry today?

The Speaker: The member has a final supplemental?

G. Farrell-Collins: I don't know how much clearer it has to get for the Premier. The fundraising arm of the NDP, while he was leader of the party, committed a crime -- didn't break some rules, hon. Speaker, but committed a crime. They stole money from charities, including one that was run by a nun for the benefit of handicapped children. In the history of this province, we haven't seen anything so disgraceful, so despicable...

The Speaker: Your question, hon. member.

G. Farrell-Collins: ...and so sleazy, I might add, hon. Speaker.

The Speaker: Hon. member....

[ Page 11720 ]

G. Farrell-Collins: What will it take for the Premier to call a full, independent public inquiry into the criminal activities of the fundraising arm of the New Democratic Party?

Hon. M. Harcourt: Hon. Speaker, I have said that New Democrats are dismayed at the activities of the Nanaimo Commonwealth Holding Society and the besmirching of the reputation of one of the great movements in this country. I have said a number of times that when I first became aware of this matter two years ago, when this matter became something for the special prosecutor to investigate, I instructed the provincial secretary to sever any ties, if there were any, between the New Democratic Party of British Columbia and the Nanaimo Commonwealth Holding Society. That matter is now before the courts.

I have repeated today what I said yesterday: I have requested an audit of this whole matter; the provincial secretary of the New Democratic Party is seeing that that audit is undertaken by an accounting firm that has no ties in any way to the New Democratic Party; and that audit will be made public. I've also said that I am open and would encourage the special prosecutor to release his report at the appropriate time: when the proceedings that are taking place right now are concluded.

J. Dalton: We'll try and get some more information out of the Premier. Yesterday the Premier said that his best information was that there was no mixing of charitable funds and politics. He also said yes to an audit and then backed down and said that he would seek clarification on that item. The public wants and needs to know how much money was stolen from charities and put into NDP coffers. Will the Premier launch today a full, independent inquiry that will include a forensic audit of the NDP and groups linked to this criminal activity?

The Speaker: Supplemental question, hon. member.

J. Dalton: It's unfortunate that the public is not getting the answers that it needs and deserves.

Thousands of dollars of stolen charity money went into politics, and that is without question. You can bet the farm that Dave Stupich didn't give that money to the Socreds. This NDP government was elected with stolen money obtained through criminal activity, and that has been proven.

The Speaker: Order, hon. member. Hon. member, the Chair has attempted to be fair in allowing the opposition to canvass a matter that quite technically is not under the purview of a minister of the executive council. These are technical realities, hon. members. However, it is quite clear that this is a matter that has significance to the political process, as a matter of fact. I do not hesitate to say to members that you should canvass the matter as long as you respect what is in order and what is out of order. Your comments that impute improper motives on the part of the government are strictly out of order. I would ask you to canvass the matter with respect to the limits of the House.

Please proceed, hon. member.

J. Dalton: Thank you, hon. Speaker. I appreciate your ruling, and I appreciate the fact that we are getting at least some information through the Premier.

The Premier is clearly responsible for this kind of activity, so I am asking the Premier: will he finally do the right thing and give back this money that was taken -- if you like to put it kindly -- from charities built by the NDP?

FEDERAL OPEN SKIES POLICY AND PROTECTION OF SMALL B.C. AIRLINES

G. Wilson: My question is to the Premier. Currently, the federal government is engaged in a new policy which they dub the Open Skies policy, with the intention of looking after major airlines -- Air Canada and Canadian Airlines. That policy, it seems, is also going to have the effect of opening up British Columbia to operators of small airlines from the state of Washington. They will be able to come in, service coastal British Columbia with float operations into many communities that are dependent on float operators, and put out of business many of the small operators currently licensed in British Columbia.

Would the Premier tell us: what is he doing, in his role with either the Prime Minister or the federal Minister of Transport, to look after the interests of small airline operators who are dependent on having their licences protected in the province?

Hon. M. Harcourt: The Minister of Transportation and Highways is not here today. I can say to the hon. member that I will be having discussions with the federal Minister of Transport about expanding the activities of international carriers out of British Columbia into Asia, the United States and other centres. This is a matter of importance to the smaller regional carriers that the member has just mentioned to me in his question. I certainly will be putting that question to the minister when I talk to him in the near future.

REFERENDUM ON CAPITAL PUNISHMENT

J. Weisgerber: My question is to the Premier as well. A few days ago, the Premier said he wanted to push for zero tolerance on violent crime. To that end, would the Premier support and endorse a provincial referendum on capital punishment? Is that part of his strategy for zero tolerance on violent crime?

Hon. M. Harcourt: There are two approaches that we all should be taking in British Columbia. One is to try and prevent crime from happening in the first place, dealing with the root causes of crime at the community, family and individual level. A series of initiatives has been undertaken by our government, spearheaded by the Attorney General, to do just that.

A second approach is through CLEU, the Coordinated Law Enforcement Unit that was started by the 1972-75 New Democratic government to target the most violent and vicious criminals in this province for apprehension, to be brought to trial, convicted and sent to jail for very longs periods of time. The member has asked a question about an issue that is important to British Columbians, and that is violent and vicious criminals. Actions are being taken by this government in terms of prevention and apprehension.

The Speaker: A final supplemental, hon. member.

J. Weisgerber: I believe that British Columbians would welcome an opportunity to express their opinions on the issue of capital punishment. I believe that the province has an obligation to provide lawmakers across this country with an opportunity to know what British Columbians stand for on this issue. Would the Premier support a referendum on capital punishment and put one before British Columbians at the next opportunity?

[ Page 11721 ]

Hon. M. Harcourt: First of all, that is a matter of future policy. I also think that there are two separate questions. One is whether you believe capital punishment is going to stop violent criminals and violent crime. I can tell you, though, that this government has a zero tolerance policy for violence against our citizens. In two different and very important ways, we are taking measures to deal with the large criminal rings that are intimidating, threatening and harming our citizens and to divert particularly young people, or people who are angry toward society, from that kind of behaviour.

NURSES' LABOUR DISPUTE WITH GVRD

L. Reid: My question today is to the Minister of Health. In the past week we have seen 800 community health care nurses on strike in this province. Today, that withdrawal of service is supposed to escalate. Today, people are staying in hospital longer because they know that post-operative care is not available in the community. The Minister of Health stated that he had reached an agreement with community nurses. What deal did he reach if community nurses are still not able to deliver services to British Columbians?

Hon. P. Ramsey: The province did, indeed, conclude an agreement with the BCNU, covering community nurses who are employees of this government. Nurses in the greater Vancouver area who are employees of the GVRD are currently involved in a labour dispute with their employer. I would hope that that employer and that union will be able to conclude a fair agreement, as we have been able to do with our employees.

The Speaker: Supplemental, hon. member.

L. Reid: The Minister of Health is asking British Columbians to trust that community care will be there when they need it. When is a nurse not a nurse, hon. minister? On Friday alone, in Richmond, 53 patients needed community care. A caseload is only nine patients a day. You are asking British Columbians to trust that your new plan will provide those services, but it can't provide it today. You're rushing into community-based care. You cannot deliver on your promise. When is this minister going to deliver the kind of community care that this New Democrat government has promised to British Columbians?

[2:45]

Hon. P. Ramsey: Unfortunately, the Liberal critic continues to display a complete lack of knowledge of labour relations in British Columbia.

Interjections.

The Speaker: Order, please.

Hon. P. Ramsey: We have reached a fair agreement with nurses employed by this government. I continue to think that a fair agreement will also be reached with the community nurses employed by municipalities in the lower mainland.

NANAIMO COMMONWEALTH HOLDING SOCIETY

W. Hurd: Mr. Speaker, we've heard the Premier suggest that his government has cut all ties with the Nanaimo Commonwealth Holding Society.

But I refer the Premier to count 31 of the search warrant, which alleges that the Nanaimo NDP Centre Association, also known as the Nanaimo NDP Association, between the dates of January 1, 1973, and August 12, 1992, at or near the city of Victoria, "did cause the British Columbia lotteries branch and the public gaming branch...to act upon forged documents, to wit financial statements, as if they were genuine...." My question is to the Minister of Government Services: what steps has he taken in the last two years to investigate this allegation in the search warrant?

Hon. R. Blencoe: Hon. member, I'll take that question on notice.

Interjections.

The Speaker: Order, please.

The bell terminates question period, hon. members.

Hon. D. Miller tabled the 1992-93 annual report of the former Ministry of Advanced Education, Training and Technology.

Orders of the Day

Hon. J. MacPhail: I call Committee of Supply in Committee A, the estimates of the Ministry of Education. In the House, I call Committee of the Whole on Bill 46.

CHILD, FAMILY AND COMMUNITY SERVICE ACT

(continued)

The House in committee on Bill 46; D. Lovick in the chair.

On the amendments to

section 1 (continued).

The Chair: We are currently dealing with three amendments to

section 1, which I gather are being dealt with concurrently. I'm not sure where the debate left off, so I will go to the member for Okanagan East to begin.

J. Tyabji: We had adjourned debate after introduction of the three amendments, which introduced

definitions for abuse, harm and neglect. As I said to the minister, in the absence of

definitions, there is some potential for discretion on the part of the director that could lead to problems in the family. I had said that I wanted to introduce some case studies later on, but I would like to introduce one here as an example of an

interpretation of neglect or harm that was used to interfere and, basically, to apprehend a child in a family situation. I'm sure, after the example, the minister will appreciate why it's quite important to be specific in terms of the

definitions.

In this case, we had a situation where some social workers had been advised by a medical doctor, who, for whatever reason, seemed to have interests.... Perhaps he was just misguided in his thinking, but the advice that he was giving the social workers would not have been borne out. He was alleging abuse and neglect by the parents of a young girl who lived a very normal life, and who did very well in school -- straight As and Bs. She was originally diagnosed as having a rare liver disorder, but did not need any medication for it.

The parents had been treating the disorder with diet, and it had been very successful. Five years after her diagnosis she fell from her bicycle. After injuring herself, a doctor intervened with exploratory surgery and then prescribed a drug called prednisone. Some of the minister's staff may be familiar with this case, because it is one that came up....

[ Page 11722 ]

Prednisone could be described as an experimental drug at best. The family were quite upset after her treatment, because they weren't sure what it meant. It wasn't on religious grounds; it wasn't on a philosophical basis. But they watched their daughter's behaviour change under this experimental drug. Some of the side effects have been described as psychotic behaviour, suppression of the immune system -- there was a whole list.

After a while, the daughter also started to display some physical problems, including a lump in her breast and some serious physical disorders -- her spleen had enlarged, and there was a problem with blood pressure. At that point the parents wanted to discontinue treatment. The doctor intervened and said that that would be considered as something that would harm the child, and the parents would be charged with neglect. It got to the point....

The case is fairly lengthy. There was also the intervention of Kari Simpson of the Citizens' Research Institute, who was there as an advocate for the family and had researched the situation and took the family's position. The Ministry of Social Services intervened to try to apprehend the child. The child was very emotionally traumatized by this; the parents were extremely upset. The situation goes on. There is at the end of it a happy ending, in that the ministry resolved not to apprehend the child. The child stayed with the family.

But the fact in this case is that a medical doctor advised the ministry that the child was in danger and had to be apprehended immediately. The ministry then acted, as they should in that instance, and went down to apprehend the child. They did not go beyond that to receive material evidence or a second opinion, because they acted within the mandate they were given at the time. Of course, in the end, notwithstanding the doctor's report, after a lot of pain and suffering on the part of the family and the child, the situation was resolved.

Without a definition, safeguards and accountability in the bill, I think there is a lot of room for discretion. In this case, the harm and neglect.... It's very easy to allege neglect on the basis of a parent choosing not to administer medication. However, there are times when, in the best interests of the child, the parent will make that determination.

If a third party is going to allege neglect, the onus should be on the third party to have a definition within which that neglect is alleged. If there is going to be an allegation of harm, that harm should be defined so that the onus is on the person alleging harm to produce evidence of either physical harm or potentially criminal negligence. Those

definitions have been introduced in this stage so that the rest of the bill can be dealt with in a much more specific manner and so that we don't have such wide discretion, because obviously the workers who are on the front line will act on the intent of the definition in the bill. In the absence of that, there is a wide range of discretion that in the long run could prove to be against the best interests of the child. I would advocate caution; that is why those amendments have been proposed.

Hon. J. MacPhail: I know how it often helps to examine particular cases to make a point. However, I must say that it has been my experience that a case taken out of context is very difficult to comment on. So I'm going to deal with the generalities of the point. I don't think the definition proposed by the hon. member for Okanagan East would have assisted in the particular circumstance. What would have assisted is

section 29 of the bill, and I look forward to being able to debate that.

Amendments negatived on division.

The Chair: Given this hiatus, member, may I just say as gently as I can that we have spent in excess of two hours and 20 minutes on

definitions. That's a very significant amount of time, and I think we have probably canvassed most of the areas. Certainly from what I saw earlier when I wasn't in the chair, much of what we were hearing had already been canvassed at some length. I'd just like to caution all members that as nearly as I can make out, most of the matters we seem to be raising under

definitions are indeed going to be dealt with in particular sections of the act. With that caution, I will recognize the member for Okanagan East.

J. Tyabji: The last definition I want to canvass -- and the last amendment I want to propose -- is the definition of a family conference. Although it is referred to in

section 20, there is no definition of family conference. We see what a family conference is mandated to do when we get to

section 20 -- which can be dealt with there -- but not what it is.

I have some confusion when reading this bill, and I have spent some time on it to understand the implications. For example, we don't know who participates in a family conference, how it's structured, who calls the meeting, how that's determined or any of those things, because it's not defined. I would propose an amendment to the bill in

section 1 -- and this is the last of my amendments -- and I'm hoping that this is the intent; this is what I glean from the bill, and it's all I can find. I move that the definition of family conference be deleted, and that the following be added: "'family conference' means a mediated session convened at the request of the parent or the child for the purpose of resolving difficulties which have been identified by the child, the parent, or the director."

The purpose of that is the word "family," which is also not defined.... We have no definition for community, family or kinship -- these are all very nebulous terms -- and a family conference under

section 20.... Because it doesn't limit the number of people who can attend, who can request a family conference, who can participate, how long it goes on or any mechanism for it, it's important to introduce the concept that a family conference is to assist the parent or the child who has been identified as having a difficulty. As the second part of the amendment says, whether that identity can be identified by the director.... The director could have had a complaint registered and after an investigation find that there is reason to have a family conference.

It could be brought about by the child making a request saying that there's a problem, in which case they convene a family conference -- or the parent, if the parent needs some assistance. Beyond those three parties it doesn't seem to me, for the intent of the bill, that a family conference would be warranted -- at least, as I read it.

[3:00]

Could the minister provide some direction on this? I think the amendment does clear it up. If a definition can be provided for the record -- other than convening it without a definition -- that would be most useful for the debate.

On the amendment.

Hon. J. MacPhail: The definition of family conference refers to

section 20 -- which we will have an opportunity to debate -- where the intent of the family conference is clear. In this legislature we understand the difference between legislation, regulation, policy and practice. Let me advise hon. members that in a business as complex as the one that our ministry deals with we cannot include everything in legislation. That would prevent us from keeping with the times and keeping up with changes in resources. Much of

[ Page 11723 ]

what is being discussed now is a matter of policy. I can reassure the hon. member that the regulation will provide a quick process. It will name the participants and how the family conference is conducted. I can also advise that there is a need to remain flexible in this process to ensure its success.

J. Tyabji: I would like to speak in favour of the amendment. Notwithstanding regulations and policy, all that we would have to go on today is anything that might currently exist. Now we have a dramatically different piece of legislation in front of us. Obviously the regulations and policy will be changed accordingly. We don't know what regulations will accompany this legislation, and the minister still hasn't given us much of an idea about who will initiate or participate in a family conference.

The biggest concern, especially given the language of the bill, is that someone other than the parties directly related to the issue at hand will be able to interfere in the integrity of the family to have self-determination. That, of course, goes to the heart of the bill: when is a family allowed to have

self-determination and at what point can the state intervene? Obviously the state intervenes when the child's health is in danger or the child is in danger. But in terms of a family conference, if the issue is not one of a pressing need for immediate intervention for access or custody -- we are talking about a family conference where we're going to talk about everything to try to resolve something -- it should be initiated by the parties directly involved in the issue. If they are not directly involved in the issue they really don't have any business talking at a family conference. That's why that's in there.

Maybe the minister can reassure us that there won't be third parties or people other than the parent or the child -- or perhaps the director -- interfering with the family's integrity.

Hon. J. MacPhail: This is appropriate discussion for

section 20. Before we get to

section 20, let me reassure the hon. member for Okanagan East that it is our intent to widely consult with the community and the stakeholders to design a good process that is based on a practice conducted in many other jurisdictions with a great deal of success; we want to build upon that success in other jurisdictions. We can certainly explore options under

section 20 as well.

Amendment negatived on division.

Section 1 approved on the following division:

YEAS -- 39

Petter

Edwards

Charbonneau

Garden

Perry

Hagen

Dosanjh

Lortie

Giesbrecht

Miller

Cull

Harcourt

Gabelmann

MacPhail

Ramsey

Barlee

Randall

Farnworth

Doyle

Lord

Streifel

Simpson

Sawicki

Jackson

Kasper

Krog

Brewin

Copping

Lali

Stephens

Gingell

Hurd

Dalton

Chisholm

Tanner

Jarvis

Anderson

Warnke

Symons

NAYS -- 5

Hanson

Weisgerber

Fox

Tyabji

Wilson

The Chair: Before I recognize the member for Okanagan East, perhaps I could give members who have other duties the opportunity to depart this place to attend to those duties.

May I also offer my customary cautionary note? The customary cautionary note has to do with the fact that we are now on what in this bill is called guiding principles, which in other bills is frequently referred to as the purposes section. I would just remind everybody that we have had the second reading debate. This House has voted on the principles of the bill, and the amount of time we therefore need to give to this particular

section -- it seems to me, logically and reasonably -- ought to be limited. I would ask members to please be guided by that before the debate on

section 2 begins. Having said that, I now recognize with alacrity the member for Okanagan East.

section 2.

J. Tyabji: I have a question of the Chair on his comments: would a day or two be too long on this section, or is that...?

Recognizing that we've had second reading, some of the questions that we have for the minister -- and I have one amendment for this section.... I find that in this

section we have the term "kinship ties," which is not defined. Could the minister provide some direction as to what a kinship tie is from her ministry's perspective?

Hon. J. MacPhail: We were actually going to try to provide a lengthy academic dissertation on it, but I'm overruling the staff. I'm just going to go with the plain face of the meaning, which is the connection of a child to her or his extended family.

[3:15]

J. Tyabji: The minister said it's the connection of the child to the extended family. For the purposes of this bill, then, is a kinship tie going to be one of the parameters through which they determine where the child should be -- on the basis of the extended family? I'm not sure -- just so the minister understands my question -- if a kinship tie is a tie that exists because of biology or practice?

Interjection.

J. Tyabji: Or marriage?

Hon. J. MacPhail: Let me deal with the marriage issue first. The children covered by this act are not married. Your tie as a child is through your parents; you're not married yourself. Anyway, I'll seek clarification on that, hon. Chair.

What we are inserting in this act as a guiding principle is that your kin are people who surround you as your family, your extended family, those who are in your circle of support who share your culture and background and are part of your extended family.

Let me try and presuppose what the hon. member means by marriage. If that means what we sometimes refer to as

step-relations or a blended family, I would say yes.

J. Tyabji: Just a point of clarification. If we go back to the basis of the question, when the minister explained kinship.... I understand what she's saying. When she talks about the extended family, I'm not sure whether that is something determined by biology. When I asked that, I meant that we have a lot of references that are racially tied. Would someone be defined as having kinship on the basis of their biological ties, or would it be, as most people would think of kinship, on the basis of someone who, by practice,

[ Page 11724 ]

has been around the child for much of the child's life and is part of that child's environment?

Hon. J. MacPhail: I think we're having a continuation of the discussion we had this morning about what is in the best interests of the child and how kinship relates to this.

Let me try this from a different angle, with regard to what this guiding principle is. It is saying that wherever a child's interests have to be determined according to this act, we are going to do that giving consideration to the child's kinship ties -- whether that's biological, the community from which the child comes or the extended family. I heard from many families with an ethnic background different from mine, and they said to me that the most important factor in their child's life is the child's extended family. It's from that point of view.

But if anyone has concerns that the kinship ties to the aboriginal community will prevail over the best interests of the child or perhaps one of the biological parents, the answer to that is simply that they won't.

V. Anderson: I want to thank the minister and her staff for the three hours of briefing that we were able to have and benefit from. If I do not ask a lot of questions, it's because I previously got the clarifications I wanted, and I understood them. I want to thank the minister for that and put it on the record that we have had that opportunity.

The kinship issue, I think, is very important, and it is one that the community has raised with me. I just want to clarify my understanding of it. I have had grandparents coming to me who, under the present system, have had difficulty interacting with their grandchildren. It seems to me that under legal

definitions, kinship would normally be legal kinship. To go beyond that would have to be justified, or you'd have to stretch it. Normally it would be legal kinship with an extended-family member who has some legal relationship. Normally that would be the first point any court would consider in trying to work it through. Grandparents, cousins and aunts would therefore have an opportunity to be related if that was in the best interests of the child. If I rightly understand the flow of the act, they would have a priority in consideration over non-kinship persons.

Hon. J. MacPhail: Yes. Thank you.

J. Tyabji:

Section 2(

f) says "the cultural identity of aboriginal children should be preserved...." I'm sure it's no surprise to the minister, then, that this causes some difficulty to the Alliance members. I'll try to be brief, so I'll quickly introduce an amendment, and we can go through the motions of defeating it. Then we can move on to the next amendment and defeat that one too.

I move that

section 2(

f) be amended to read that "the cultural identity of children is an important aspect of their ongoing education...." I move that amendment -- rather than it reading "the cultural identity of aboriginal children should be preserved" -- so we recognize that all children's cultural identity is very important to their ongoing education as human beings. In that respect, we don't identify aboriginal children as any different from others. All cultures are equally important.

The Chair: The intent of the amendment is to replace the existing

section 2(

f) with the new (

f) and take away the specific reference to aboriginal children and their cultural heritage. Am I correct?

J. Tyabji: The purpose of that is that families and cultures obviously self-determine. The phrase "should be preserved" is mandating preservation, which we believe is artificiality built into the bill similar to what we see in Quebec, where they've been mandating and legislating French language and culture. To that extent we recognize the educational process rather than the legislation.

Amendment negatived on division.

J. Tyabji: I did have another amendment to this section, but since I can't find it right now, I would like to ask some questions of the minister specific to this. This is the first time we've hit a

section where the words "abuse, neglect and harm or threat of harm" are used without definition in the definition section. On the record, could the minister provide the guidelines through which the director will be making that determination? Is that going to come out in regulation or policy?

Hon. J. MacPhail: That's not under the definition; that's contained in

section 13 of the legislation.

J. Tyabji:

Section 2(

g) says "decisions relating to children should be made and implemented in a timely manner." It's my understanding that the bill more or less lays out the timely manner. Is that what this is in reference to? Or is there going to be further regulation on that?

Hon. J. MacPhail: All of us who are parents know that our children have different concepts of time than we do. One of the things we were very cognizant of in drafting this legislation is that when we apply adult time to decisions, it has an effect on the development of children. We're trying here not only to address the court timeliness very clearly specified in the legislation, but to have a guiding principle that timeliness is of the utmost importance in any decisions around children, including provision of service, to enhance a child's development rather than hinder it through delay.

Section 2 approved on division.

section 3.

G. Wilson: We've actually canvassed earlier, under the

definitions, part of what I wanted to ask under

section 3. So I don't know that we need to repeat it, with the exception of one question with respect to community involvement. This is something that I think we would support if.... And that's why we were talking about the definition of community.

I wonder if this act takes into account that a wide range of community services are already available in many communities and that those community services are often financed or provided for through various non-profit associations and church groups -- a whole series of different agencies -- that are not directly mandated, although they may have, in part, received funding from the Ministry of Social Services.

With respect to service delivery principles, I wonder whether or not it's intended, if the community should be involved, that there be a proposition to directly mandate some of those community associations and services with respect to the provision of services through this act -- i.e., I'm thinking about community service associations in particular.

Hon. J. MacPhail: The member is quite right: there is a wide range of excellent community organizations and service agencies that work in partnership with our ministry.

[ Page 11725 ]

The role, advice and participation of those community agencies was a key recommendation that we received through our community panel report. The intent of this is that we work closely with community agencies that are outside our direct government mandate, although we do provide hundreds of agencies with funding.

Those community agencies are obligated by law to participate in this act, just as each and every one of us in this room is. But we are going to make sure that the community agencies are involved in the implementation of this act. We will assist in training, with agencies, in the transition to the new act, although I must also tell you that many community agencies are in front of us and are already implementing the principles of this act. We have 20 social workers throughout the province, called community development workers, who will assist those agencies with the transition in accepting and implementing this act.

G. Wilson: That is actually an encouraging response, and it's one that I think we're interested in.

Section 3(

b) states: "...aboriginal people should be involved in the planning and delivery of services to aboriginal families and their children." We notice the following heading in a press release of May 31, 1994, by this ministry: "The Nicola Valley Bands Take Back Child Welfare Responsibilities." Such an agreement appears to already have been signed, and it directly addresses this. It states: "This agreement is in keeping with our proposed new family and child services legislation." That is this legislation. With respect to the service delivery principles section....

In this press release it suggests that within three years the band will have "full delegated authority" in control over areas such as the investigation of child abuse reports and taking children into care. Is it intended, then, that this

section of the bill is going to essentially allow that the principles for delivery will be expanded to allow this government to fully delegate authority under this act, as it seems to have done in the agreement that has been made with the Nicola Valley bands?

Hon. Chair, I'd like to just take an opportunity to welcome a number of students who are in the gallery today. I think it's appropriate that we have a lot of young people listening to legislation on children, youth and young families. This bill will directly affect them, I'm sure, and probably their children. Could we take an opportunity to welcome those students, and then I would look forward to the minister's response.

Hon. J. MacPhail: The legislation will provide for agreements with aboriginal communities for the provision of services and the designation of aboriginal directors. We'll cover that under

section 91, in the upcoming debate.

Section 91 will allow for the potential to assume full responsibility for administering and enforcing all aspects of this act.

[3:30]

J. Tyabji: I'd like to introduce an amendment to

section 3(b). I'm sure it's no surprise to the minister that the Alliance has problems with

section 3(

b) because it specifically singles out aboriginal people. Yet

section 3(

c) says: "...services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services." Clause (

c) would include aboriginal people. I'm sure the minister could appreciate that if

section 3(

b) read "Chinese people" or "East Indian people" or "Italian people," we would consider that racist. The Alliance believes that this is racist. We would amend

section 3 to delete clause (b).

The Chair: I thank the member for sharing her amendment with the table.

Amendment negatived on division.

J. Tyabji: Could the minister please tell us to what extent her ministry is currently working with aboriginal people in setting up, under clause (b), planning and delivery of services to the aboriginal community separate from the rest of the community?

Hon. J. MacPhail: Nothing is occurring under this bill, because it is not yet

an act. But we now have seven agreements with aboriginal communities, each with various levels of delegation of responsibility, and we are in discussions with three more aboriginal communities.

Section 3 approved on division.

section 4.

J. Tyabji: To what extent will there be companion regulations or policy on the best interests of the child?

Hon. J. MacPhail: There will be no regulations. This

section speaks for itself.

J. Tyabji:

Section 4(1)(b), which talks about the best interests of the child, says that one of the factors will be "the child's physical and emotional needs and level of development." Who will that be determined by? What are the criteria to determine that in the absence of regulations?

Hon. J. MacPhail: The courts.

G. Wilson: That causes a good deal of concern. It's the view of the Alliance that the discretionary powers of a judge is often not the best way to determine the emotional needs and development levels of a child.

Having said that, I just have a couple of questions on

section 4(2). It says: "If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests." We've canvassed this already. I just want to ask the minister how that's different from

section 4(1)(e), which talks about "the child's cultural, racial, linguistic and religious heritage...." It seems to me that you've said, in relation to all children, that subsection (1)(

e) looks after "the child's cultural, racial, linguistic and religious heritage"; and then you've introduced a special

section which says that if, on the other hand, it's an aboriginal child, "the importance of preserving the child's cultural identity must be considered in determining the child's best interest." I'm not certain why you need that additional caveat, given that it's already covered under subsection (1)(e).

Hon. J. MacPhail: We have canvassed this already, but let me reiterate.

Section 4(2) is needed in order to reverse what has occurred in the past, in that the best interest of an aboriginal child, as determined by the courts, has been to remove that aboriginal child from his or her home into a non-aboriginal home. As I've said throughout the debate this morning, 30 percent of the children who are removed from homes each and every year are aboriginal children. This is to correct that situation.

[ Page 11726 ]

G. Wilson: With respect, that seems to be a bit of a contradiction. We just talked about who determines the physical and emotional needs and level of development, and the minister said it should be the courts. Then the minister said that historically the courts haven't done a very good job, especially with respect to aboriginal children; and we would agree. But it is important for us in a society, wherever possible, to eliminate language that is discriminatory in nature, and this is discriminatory language. It says that an aboriginal child will be treated in a manner different from other children; that is implicit in the legislation.

I would move an amendment to this

section that would simply delete subsection (2), as I believe it is adequately covered under subsection (4)(1)(e).

On the amendment.

Hon. J. MacPhail: Under the current legislation, the courts had no guidance or direction on what the best interest of the child was. This gives the courts direction, and subsection 4(2) gives the courts a factor that they must take into consideration now. When it was left to the discretion of the courts, the courts chose to completely ignore the best interest of the child, in terms of aboriginal children within their communities.

G. Wilson: Very quickly in defence of the amendment -- and then we can move to a vote on it -- that's clearly why we don't think the court is the best area for the decision to be made. Second, the problem is that it signals to a judge -- who is reviewing what is in the best interest of a child on the basis of this legislation -- that if a non-aboriginal child is in front of that judge, the following criteria are to occur.... But if it is an aboriginal child, that judge is going to be referred to a specific

section of this bill that provides specific guidance to the judge on that question. We are arguing that in a court of law, every child should be treated equally with every other child. In this society, if we start to build laws and regulations that are exclusive, different or special in nature and given to people on the basis of racial origin, no matter how good the intention -- and we believe it is well-intentioned -- it starts to create a tradition in jurisprudence that I think is really dangerous. It leads us down a road that discriminates rather than removes discrimination between people, and that's why the amendment is important.

J. Tyabji: Obviously I am rising in support of the amendment. Although this subsection is well-intentioned, I see it to be racist. Rather than reducing discrimination in jurisprudence, I think it continues a tradition of racism. In the past there has been discrimination against aboriginal people that has worked against the best interests of the child. Now we are going to go the other way by differentiating -- continuing the segregation in law. Ideologically, that's something that we can't support.

The minister said it on the amendment, so I will raise it in the amendment: the courts don't always decide in the child's best interests, so they have put this clause in the bill. She has also said that the place in which the best interests of the child will be determined will be the courts.

I have a desk loaded with cases where the best interests of children in the initial stages had to be appealed because the decision was that far removed from the children's best interests. The courts often seek guidance from people who go into the homes, study the homes and study the psychological impact. Since we're on this

section and the minister has raised in this amendment that the courts don't always decide in the child's best interests, I would agree with that. I would also say, for the purposes of this bill, that the best interests of the child should be defined outside of the courts and should be more clearly defined within the bill so that the courts don't have to be the last decision-making level for the children.

On the amendment, I would very much support a deletion of all areas of the bill that segregate on the basis of race.

V. Anderson: I must rise and respond. I would vote against the amendment. I would also want to be very clear that I do not believe it is discriminatory or racial. I know that the hon. members in the Alliance do believe that any reference to aboriginal people should be deleted from the bill. I want to state quite clearly on my part that I don't agree with them, and I do not agree that it is either racial or discriminatory. It recognizes the historical reality of the country in which we live. It's no more racial than if we were recognizing the reality of citizenship of people from other countries.

We are here recognizing the historical reality of the first nations. It's a difficulty that we have to work through, which we have not worked through properly, and because we have difficulties in working it through does not mean that we're being discriminatory in doing so. It's a reality, and it's my understanding that the majority of the people of our province recognize that. The courts have recognized that in many ways already. Rather than having it declared discriminatory and racial again and again, I want to stand on record as not agreeing with the members of the Alliance in their

interpretation of the reasons for this particular presentation in this bill.

[D. Streifel in the chair.]

J. Weisgerber: I would speak in favour of the amendment. It seems to me that subsection (1)(e), as it is outlined, provides for the best interests of the child on the basis of "cultural, racial, linguistic and religious heritage." The effect of subsection (2) seems to me to put far more emphasis on cultural and therefore less emphasis on racial, linguistic and religious heritage. If one assumes that a judge or other official, looking at this bill, would read the sections differently in the case of an aboriginal child, it would say to the judge that the issue of critical importance is cultural.

I would argue that racial and linguistic considerations, particularly, might be every bit as important for an aboriginal child as another ethnic child, and I really don't believe that subsection (2) serves aboriginal people well. Perhaps the minister can tell us whether there is some lobby, or whether, as part of some very genuine consultation, aboriginal people have asked for this kind of separate

section to deal with issues around their community.

Hon. J. MacPhail: I understand that when you have a party of four, it's difficult to cover all the bases in the House. We have covered this ground, though. Let me reassure you that after two years of consultation and a report that we can make available to you called "Liberating Our Children, Liberating Our Nation...." That extensive consultation with the aboriginal community is the lobby. It's not a lobby; it's a genuine outcry to redress the wrongs that have occurred in the past. I also made available to the House the statistic that 30 percent of the children that are apprehended, or removed from their homes, in this province are aboriginal children,

whereas their population base is about 4 or 5 percent -- as

[ Page 11727 ]

the hon. member, who used to be the minister responsible, well knows.

J. Weisgerber: My comments are indeed aimed very much at trying to ensure that all children have the very best treatment that they can under this legislation. It's unfortunate that the minister feels she has to be defensive about this. I really believe that if there were, as part of some serious and

well-intentioned consultation with aboriginal communities, a specific request, and if the minister would identify that for us, then we would perhaps be willing to move forward. But I suspect that this has been drafted....

Hon. J. MacPhail: We just did.

J. Weisgerber: Well, if the minister suggests to me.... She held up a rather thick document that outlines the consultation process. But I must say.... We won't prolong it. I'll vote against the

section and with the amendment because -- and I want to make sure that the minister understands -- it's in the best interests of all children, particularly aboriginal children, that their cultural, racial, linguistic and religious heritages all be considered and that the courts are not prejudiced by this subsection (2), which says that the only real issue important for aboriginal children is culture.

[3:45]

G. Wilson: I have just a final comment before we take the vote. I believe, when you're drafting legislation that deals with matters of social consequence -- particularly when it talks about racial origin or cultural groups -- that you should be able to delete that word, replace it with any other group and have it acceptable. I suggest that if you took out those words "aboriginal child" and put in "East Indian child" or "Chinese-Canadian child" or -- not even Canadian -- "Chinese child," or if that child is of some other ethnic group, it clearly would not be seen as acceptable.

It strikes me that when we are moving ahead in our society as we are, we want to try to remove whatever legislation there is that discriminates on the basis of race. The Indian Act, for example, is a racist piece of legislation and needs to be thrown out of this country. We need to move forward to make sure that all Canadians are treated equally -- aboriginal and

non-aboriginal. That's the goal. That is why we take such strong objection, right throughout this act, to the fact that this act seems to say there are two groups of people -- aboriginal and non-aboriginal.

We have a philosophical problem with it. We can agree to disagree, and I guess we will. We'll vote against it. You'll vote for it, and you have more people than we do and you'll win. But philosophically, we need to be drafting legislation that doesn't isolate or discriminate and that treats all people equally.

J. Tyabji: One reason we're spending some time on this

section -- although there are pieces throughout the bill with similar references -- is that the best interest of the child obviously is the thread that weaves the bill together, and there is discrimination in this

section that we would like to exclude.

I want to say, for the minister's sake, that I've had some interesting discussions with my son on this issue. I tried as hard as I could to explain to him why it would be relevant in a court of law, and how it could be that something over which he'd have no control -- which has no relevance in his daily life but is part of his DNA -- might one day have a dramatic impact on his life. He doesn't understand it. I can understand that he doesn't understand it, because frankly I don't understand it.

I've talked to many other aboriginal people who aren't that inclined to be segregated from the rest of the community. There's no question that there is leadership in the aboriginal community and first nations who are at the Treaty Commission table. But, as this minister knows, they're in the minority as far as the population goes. Once we start to define who is and is not an aboriginal, we're moving into a form of apartheid which in the nineties really is not acceptable.

That at least puts those comments on the record.

[D. Lovick in the chair.]

Amendment negatived on the following division:

YEAS -- 4

Tyabji

Wilson

Hanson

Weisgerber

NAYS -- 36

Petter

Edwards

Charbonneau

Garden

Perry

Hagen

Dosanjh

Lortie

Giesbrecht

Cull

Gabelmann

MacPhail

Ramsey

Barlee

Blencoe

Randall

Farnworth

Doyle

Lord

Streifel

Simpson

Sawicki

Jackson

Kasper

Krog

Brewin

Copping

Lali

Stephens

Dalton

Chisholm

Tanner

Jarvis

Anderson

Warnke

Symons

Section 4 approved on division.

D. Streifel: I ask leave to make an introduction.

Leave granted.

D. Streifel: I have some students from Edwin S. Richards Elementary School in my community visiting in the gallery today. There are 60 of them altogether, in two groups. They're nice, quiet and well-behaved folks. I much appreciate having friends from home visit me when I'm here. They're led by Ms. Chandonnet. I bid the House make them welcome.

The Chair: I think we're still waiting for ministry staff, unless the member for Okanagan East wants to make an introduction as well.

J. Tyabji: I can always add something to that. Some of the comments in the House don't get on the record, but as the member for Mission-Kent was talking about how well-behaved and polite the students from his riding were, the member for Powell

River-Sunshine Coast was wondering why their MLA didn't behave the same way.

The Chair: I would suggest, member, that you may perceive that to be humorous, but it is rather inappropriate.

J. Tyabji: In that case, I'll go back to the bill.

[ Page 11728 ]

The Chair: I'm going to ask you to please take your seat until the minister returns, and then we can resume debate.

section 5.

J. Tyabji: We don't have a problem with

section 5 philosophically or in any other way.

In terms of termination of the agreement, we would propose an amendment to

section 5. I'll start from there. Our discussion point for the

section is that

section 5 be amended to add a subsection (4) that would say: "The parent may terminate the agreement at any time if, in the opinion of the parent, the services of the director are no longer needed by the family."

[4:00]

In addition to the parent being the person who determines how the family operates -- in consultation with the child, obviously -- the reason for the termination clause is that, once getting into an agreement with the director and asking for that support and assistance, it's important for the parent to have the ability to end the agreement, in addition to the time lines that are given here. I would move that amendment.

[D. Streifel in the chair.]

On the amendment.

Hon. J. MacPhail: In this section, support services for families are not mandated services; they're voluntary services. Inherent in any agreement is the principle of law that says: if you make an agreement voluntarily, you can also unmake the agreement voluntarily. That's inherent in the law, and that's certainly the intent of the section. Any form that's drafted as a procedural matter will ensure that that principle is contained....

J. Tyabji:

Section 5(3) is talking about maximum terms and then possible renewal, but that shouldn't mean that those should be the terms of the agreement. Can one party to the agreement opt out and then nullify the agreement?

The minister is nodding. I'll just put that on the record.

Amendment negatived on division.

Section 5 approved.

section 6.

J. Tyabji: The same concern comes with

section 6, but there is another one as well, and I'd like to introduce an amendment on that. The concern, of course, is for termination and whether the minister has assured us that there will be a termination. There is no mention of a maintenance

schedule that the parent, if possible, would get into with the director. So I would propose that we add an amendment to subsection (5), which says: "The agreement must include the following...." and talks about the plan of care, informing the parent, and the parent's promise to maintain contact with the child. I propose that subsection (

d) be added, saying that the agreement must include "a budget for care of the child, which should include a

schedule of maintenance with, if possible, a contribution

schedule by the parent."

The reason for a contribution

schedule amendment would be.... As it is right now, the director obviously has the discretion to include that in the agreement. But even though the bill is fairly specific on some of the terms of the agreement, the bill doesn't say anything about a financial contribution by the parent when the parent hands over care of the child to the director. I would propose that amendment and look forward to the minister's response.

On the amendment.

Hon. J. MacPhail: I know that the bill is complex and lengthy -- and there is absolutely no implied criticism with this whatsoever -- but the amendment is contained in

section 97(2).

J. Tyabji: The minister said that those maintenance agreements and orders apply to this section? Okay, that's fine. I withdraw the amendment, then.

V. Anderson: I have an amendment to reword

section 6(7) to make it agreeable with the rewording of the amendment in

section 45. It's the exact wording as in 45; it just brings these together. So I would move it, hon. Chair.

On the amendment.

Hon. J. MacPhail: The intent is acceptable, and I know we have to deal with your amendment. There is a problem in the wording of the hon. member's amendment in that it refers to orders. "Order" has a specific legal meaning, and in this

section we are dealing with agreements, which has a different.... Let me suggest a friendly amendment to the amendment, changing wherever it says "order" to "agreement." We actually have wording written out here.

V. Anderson: I am in favour of the minister's motion, because I agree with her that it should have been "agreement" instead of "order." That was a mistake on our part.

Amendment approved.

Section 6 as amended approved on division.

Section 7 approved.

section 8.

J. Tyabji: Rather than move an amendment, I am assuming that

section 8 is the same as the other sections in terms of a termination clause. Would it be assumed that it would be terminated at any point where the person with whom the agreement is made withdraws?

Hon. J. MacPhail: That requires a two-part answer. On the face of it, the agreement can be terminated voluntarily, as we described earlier. Also, if the parent wants to terminate the agreement he or she can do so by just taking the child back.

J. Tyabji: Could the minister explain what a cultural or traditional responsibility toward a child is?

Hon. J. MacPhail: It has been an interesting experience for me to understand how other cultures have an extended family -- and I am sorry that I don't. In my community the grandparent plays a very major role with my Chinese-Canadian neighbours. In other cultures that is a traditional role as well in terms of the upbringing of the kids. I

[ Page 11729 ]

understand that the hon. member has direct experience. It's that kind of kinship relationship that we are addressing.

J. Tyabji: I would assume that cultural or traditional.... I am curious, because I can understand the relationship as the minister has described. Certainly in my mother's case that would be part of her world view that has continued into my experience, yet I don't think it could be considered cultural or traditional. For the purposes of this bill we're looking at the practice of that family, independent of an identifiable culture. Or is the minister saying there would have to be a culture through which that happens, other than what that family practice has been?

Hon. J. MacPhail: I think I agree, but let me try to put it in my own words. Family practice may be based on a culture that isn't necessarily part of the general culture, and therefore it becomes a family practice as opposed to the culture of the day. But it has cultural origins and cultural roots, such as the one I described in terms of the Chinese-Canadian family.

J. Tyabji: That makes more sense to me. In my own case I'm very western, but we do have that in my house.

It appears to me that the intent of

section 8 is to allow someone who has a cultural or traditional role in a child's life other than the parent to be someone with whom the director may make an agreement. So even though there isn't a court order, for example, identifying that person as having custody of the child, the child may have grown up and been involved with a grandparent, and therefore that person has a role to play.

I'd like to propose an amendment if for no other reason than to get the minister's comment and see if this has the same intent as this

section -- and hopefully with the idea that the minister will adopt it. I think it might address the intent of this a little better and make sure that the parent's role is entrenched.

Section 8(1) would be deleted and replaced with: "With written consent of the parent, and under the instruction of the parent, the director may make a written agreement with a person other than the parent who is (

i) designated by the parent to the director, and (ii) has been given care of the child by the child's parent."

The reason for that amendment is that the parent is obviously the person who has the first responsibility for a child. If a parent has given that responsibility over, or if someone else has been taking care of the child, there should be recognition at some point that the parent delegated that to someone else. The way the

section is worded causes some problem. It says "a person," rather than "a person who has a longstanding relationship with the child." We talk about a cultural or traditional responsibility, but we don't talk about a simple human relationship.

I find it interesting that in previous sections we've had reference to kinship, and although the heading says the "child's kin," there's no real reference to that in the language of this section. The

section is fairly open to

interpretation. It's the word "person" that causes some difficulty -- and the fact that there's no recognition on paper.

I would be worried, for example, that if the child is not necessarily in the care of someone by practice, but that person represents that such is the case, the parent has less say in it. Let's say there are two parents arguing over the care of a child, and that child has spent considerable time with one of their grandparents. There could be a misrepresentation. In that case, the director goes into a written agreement from someone who isn't the parent -- it may be the grandparent -- who is claiming to have a relationship that might not be there. There's no acknowledgment by the parent of the role that that person plays.

On the amendment.

Hon. J. MacPhail: This

section is a voluntary

section that presupposes that the parent is still the guardian. The agreement has already been made with the parent that they are asking for a third party voluntarily. In some circumstances it's where the parent has said that he or she cannot look after the child, and they're looking for third-party care.

J. Tyabji: Under

section 8, even though the director has a written agreement with another person, would that agreement be negated by the parent coming in to take over care of the child? In what circumstances would a written agreement with a person supersede the parent's willingness to take over care of the child?

Hon. J. MacPhail: Of the more than 5,000 children who come into our care, over half are by agreement. It's under circumstances where the child would otherwise be abandoned, and the parent understands that. It's to deal with circumstances where a parent has asked for a third party to care for her child. That's when this would come into play.

J. Tyabji: Would there be a circumstance wherein a written agreement with a person other than the parent would supersede the parent coming in to say that that parent wanted to have care of the child?

Hon. J. MacPhail: No, not under this section; this is strictly a supportive section.

[4:15]

J. Tyabji: So these written agreements are for support to the person who is caring for the child, rather being than a written agreement wherein the care of the child is given over to the director. Is that correct?

[D. Lovick in the chair.]

Hon. J. MacPhail: The whole of

part 2 is for support services to families to keep them together, or so that we have as little interference with them as possible. This particular

section within that

part is to allow us to make a relatively informal financial arrangement with the party who can support the family, without us having to perhaps play any greater role than that.

J. Tyabji: I guess there is some confusion because

section 8 follows

section 6, which is the voluntary care agreements where the director can take over the custody. It makes it sound as if on the one hand, there is the support for the family, and then there's voluntary care, where the child is given over; and then later on it talks about special needs and written agreements. It makes it sound as if the child can be handed over by a person other than the parent. The minister is assuring me that that is not the case, so that's very reassuring.

Amendment negatived.

Section 8 approved.

section 9.

[ Page 11730 ]

J. Weisgerber: There are a couple of areas I'd like to seek some clarification on. I assume that the intent of

section 9(1)(

b) is that the ministry will, where able, cause parents to accept financial responsibility for the support of a youth. Perhaps I will hear from the minister on that question first.

Hon. J. MacPhail: Every attempt will be made to reconcile the youth with the family, up to and including ensuring that the family can pay for the well-being of the youth. This

section covers when alienation is complete and irreversible after every attempt has been made.

J. Weisgerber: I foresee the situation where a separation is irreparable but the family is very wealthy. Does the "able"

section of the act come into play, and does the Crown say to that able parent: "Even though you're estranged from your youth, you have an obligation to look after their well-being, and we're going to ensure that you fulfil that obligation"?

Hon. J. MacPhail: The short answer to your question is yes, that's correct.

J. Weisgerber: The other clarification I'd like to seek is under subsection (7). I'm curious as to why a young person under 16 years of age who is married, a parent or expectant parent would be dealt with differently than another child who is 16 years of age or younger?

Hon. J. MacPhail: Well, when a youth has a child of her or his own, or is married, they have actually demonstrated a very strong move toward adulthood, and that's an indication that even if they're under 16....

Interjection.

Hon. J. MacPhail: Physiological adulthood, anyway. That's why there's the inclusion of the exception for young parents who are under 16 -- including the mom.

J. Weisgerber: I'm not sure if this is the appropriate place to try and determine what those differences are. I'm assuming that this suggests that these young people under 16 years of age would be provided with separate housing and allowances, rather than being put into the care of another family or something similar. Perhaps the minister could give me a sense of what the situation would be with a very young person, say, 13 or 14 years old, who is pregnant. Does this act automatically entitle them to be treated as a youth simply on the basis that they are pregnant?

Hon. J. MacPhail: I reiterate -- and I understand that this is a change, so it's important that we're clear on it -- that this

section will come into play as an available alternative only when every other avenue has been pursued to reunite the child with his or her family. When that break is so significant that there is no chance of reunification, we will have the alternative under

section 9(7) to provide a pregnant teen, and perhaps the dad as well, with some alternatives to ensure that the new child isn't at risk. That may involve room and board or a group home. It may involve some sort of family support services regarding life skills, perhaps even training or parenting skills. It's to ensure that neither the child -- and what we in this House may assume is a child is, really, displaying adult behaviour -- nor the baby are at risk.

J. Weisgerber: I would like to determine whether the purpose of this

section is to give the ministry the ability to handle with greater flexibility the sort of situation that might arise, or does it confer on young people certain rights? My concern would be that some young people, particularly young girls, are in very difficult situations they want to get out of. I would hope that we're not creating a situation that would set the stage for a young person to become pregnant and therefore have an opportunity to get out of an unhappy household situation and into a home of their own, even though they might be very young -- that that's not the effect of this legislation.

Hon. J. MacPhail: The point is well taken. In fact, the intent is as described by you. It's an option that gives us that ability, if the circumstances suggest that that would be the only avenue available to assist the child. I also want to assure the members that this is only an option. There is also the legal ability for us to treat that youth as a child under other sections of the act.

G. Wilson: I have a straightforward legal question, I think. It has to do with the authority that the ministry has -- maybe I'm reading this incorrectly -- to bypass the courts, and it would appear that it does have here.... My concern is that a parent is liable for damage done by a youth who commits vandalism against property. If charges under the Young Offenders Act are put forward and set out under the agreement with the youth, does this allow the director to make an agreement that would

re-establish the youth in a family? In light of the fact that there may be recommendations -- not a court order -- that come out of a probation order suggesting that the youth be removed.... In other words, which has authority? Who will be the authority in this case? I am thinking specifically of a case similar to this that happened in my own riding where the parents didn't want the child back because they couldn't control the child. They were saying to the court: "Please, we can't control this child. Don't reinstate the child in the family." The court took that into account and the probation order came down.

I'm now wondering whether or not the youth would be able to go directly to the director and make an agreement that would counter or bypass that agreement.

Hon. J. MacPhail: If I'm not answering your question properly, we can pursue it further. If the parent refuses to maintain responsibility for a youth who comes out of custody, that youth is considered to be abandoned and the sections of the act for abandoned youth come into play. Or there is an opportunity for us to use this

section if it seems like a viable alternative. But the key is that the youth is deemed to be abandoned at that point.

G. Wilson: Okay. So those concerns, then, would presumably be governed under a separate

section which would deal with abandoned youth. But in the particular case I'm thinking about, there was a propensity toward arson and the parents just didn't feel that they wanted the responsibility. And this is a

16-year-old youth, so it's not like this person was unable to provide at least some rudimentary self-care. But the concern when looking at this is whether or not the youth would be able to make a direct agreement wherein the director might say: "In looking at that situation, we believe it's in the youth's best interest for the youth to go back to the family." I grant you that this is not going to be widespread, but it creates a certain amount of anxiety. In this particular instance I'm thinking of, the parents of this particular youth were elderly people who had children very late in life and found that they were unable to manage. The

[ Page 11731 ]

court found that the parents still had a custodial responsibility, and in fact, the law required them to be that way. It wasn't as if they were destitute; they didn't need Social Services. They were just senior citizens who had children late in life, and this particular youth had become involved with a very unruly group of kids and some pretty bad stuff. So my question is: would this, through a direct agreement with a 16-year-old, be able to move them back into the family? If not, where would they go?

Hon. J. MacPhail: There are four options available. One is that our ministry could enter into a voluntary agreement with the parents to place the child elsewhere; the parent could actually come to us and make that agreement. We could enter into an agreement with the youth himself, whereby he would live somewhere other than the parents' home. We could enter into an agreement that involved kinship ties, as in the

section we just dealt with. Or the child could literally be removed and taken into care. But if the concern is that we would somehow interpret these facts to say that there isn't a complete alienation and therefore say, "You've got to go back to your parents," no, we wouldn't do that.

G. Wilson: So in the event an agreement is made, who is legally responsible for the actions of that child? Because that person is a young offender, I think that statutorily a legal obligation still sits with the parent, even though the parent may not have custodial rights over the child.

Hon. J. MacPhail: There are no guardianship obligations under this particular

section of the act, so the question of who is responsible for his legal actions actually is beyond the scope of this act. There's no guardianship relationship under this section.

R. Chisholm: I'd like permission to make an introduction, please.

Leave granted.

R. Chisholm: I'd like to make an introduction for our Speaker. Ms. Lubetkin and 60 grade 6 students from East Ridge Elementary in Woodenville, Washington, are here to observe the parliament and democracy in action. I wish them well and hope they have a very good visit while they're in Victoria.

[4:30]

While I'm on my feet, I myself have 18 students from the Chilliwack Christian School here. Would the House make them most welcome.

G. Wilson: Just coming back to that question, then, I understand there's no guardianship question in here, so the legal responsibility still rests with the parent. That's the answer I was trying to get.

J. Tyabji: After canvassing this

section I would like to move an amendment directly related to this, which is an amendment allowing for conditions under which the director may make a written agreement with a youth who needs assistance. It would change

section 9(1) so that (

a) would be deleted, (

b) would move up to (a), and we would add two more sections. So

section 9(1) would read:

"A director may make a written agreement with a youth who needs assistance and who (

a) has no parent or other person willing or able to assist the youth, (

b) provides a written statement from his or her parent of the parent's unwillingness to assist, or (

c) provides evidence to the director of his or her need for assistance."

The Chair: I thank the member for sharing that amendment with the table, and we will share it with the minister. Did the member for Okanagan East wish to speak further to the amendment?

On the amendment.

J. Tyabji: Yes, I just wanted to wait until the minister had a copy.

The reason for getting rid of

section 9(1)(

a) is that sub-subsection (

a) now says: "...cannot, in the opinion of the director, be re-established in the youth's family...." That is something we have a bit of a problem with. If it can be proven they can't or that the parent or other person is not willing or able to assist the youth, or if there's a written statement to the effect that the parent is handing over the responsibility to the director, or if we have evidence that the youth is in need of assistance, then those three conditions should be enough for the director to make a written agreement with the youth.

We have a problem with the director having an opinion about whether the youth can be re-established, because that may prejudice the youth's ability to be re-established in the family. We have a problem with that, especially if it turns out that the director is in dialogue with the youth, under the impression that the youth is in this process of receiving assistance, in a written agreement, because the director believes the youth cannot be

re-established in the family. That seems to us to be a barrier that may prejudice re-establishment, which is obviously the intent of the bill -- to re-establish and maintain family connections. So if there are three conditions which provide for the youth to be helped in the event of there being evidence the youth needs help, then obviously that should be adequate. We hope the minister will find this amendment not only in keeping with the spirit of the bill but an improvement to this section.

Hon. J. MacPhail: The intent throughout the act is to ensure the safety and well-being of families and to keep families together. The reason

section 9(1)(

a) is in the act is to ensure that investigations are done into whether a family can be kept together or not. It's incumbent upon our experts, of whom the director is one, that the investigations be done, talking not only to the youth but also to the family concerning the circumstances. To do otherwise, to just allow parents to essentially abandon a child with a note, would be wrong. I know that probably comes as a shock, and I don't mean to be harsh, but we do regularly confront families where, if the act provided for that, it would occur.

I hope I can reassure the hon. member that the intent of

section 9 is as she expresses it verbally: an investigation is mandated and must be done before services are provided. Any part of that investigation about the child's financial needs are already mandated under the Guaranteed Available Income for Need Act. A means test has to be done under those circumstances.

G. Wilson: I'm speaking in favour of the amendment. I don't think we're speaking at cross-purposes here at all. In fact, this amendment speaks directly to what you're trying to do. The difficulty we have is in the way it's worded. It says: "...in the opinion of the director, be re-established in the youth's family...."

[ Page 11732 ]

As the minister has alluded to, there may indeed be situations where parents wish to somehow absolve themselves of responsibility for their child. That's undesirable. That in itself is evidence, I would guess, that there is a very substantive problem in the family that isn't going to be overcome simply through an agreement process. I'm well aware that this is addressed, at least in part, in later sections of the act. Our concern is that there needs to be a sounder set of evidentiary documentation that can be acted on, rather than simply providing for it by the opinion of the director.

Given that parents may want to make that move, that in itself has to be evidence that there is a problem in the family, and I think the minister would agree. The amendment is clearly friendly and does help to strengthen the act.

Hon. J. MacPhail: The policy will make very clear the set of criteria that the director has to apply in order to determine whether or not the youth can be re-established with her family. Again I say that we have to make sure we don't incorporate every aspect of policy, practice and procedure into the legislation; but that will clearly be part of the policy and procedure.

J. Tyabji: I'll make one last try on the amendment. One of the purposes of the amendment is to basically save harmless the director to some extent. The way it's worded right now, the director is on the line for her or his opinion. One determining criterion is the opinion of the director. That individual will be on the line. The difference is that if there is evidence, the evidence stands alone. It's substantive and independent, and it can be produced for a court of law or however one would like to put it forward. In that way, the director will not be accountable, because the evidence will be there. That's one reason that we'd like to have that changed.

We do have a real difficulty with "the opinion of the director," and for two reasons. One, it's an opinion. There are 75 different opinions in this Legislature every day; we can't agree on anything.

G. Wilson: That's not true.

J. Tyabji: The member for Powell River-Sunshine Coast is saying that it isn't true, and he's probably right. There are probably four or five opinions, depending on which caucus you belong to.

Opinions change. They're arbitrary. They're based on a person's world-view,

whereas evidence is objective. It's independent of the human being or their world-view. The second reason for the amendment is to protect the director and have the bill stand alone.

Hon. J. MacPhail: The state has traditionally invested this power in the director. That's a responsibility we take very seriously. The director should be held accountable for the assessments; that's part of the job. That's what the state has mandated us to do, and that's why we have this legislation.

Let me reassure you that part of the inquiry may well be documentation. It's incumbent upon us, because the director does have that responsibility assigned through the state, that a thorough investigation be done for which the director can be held accountable.

The Chair: We have had three iterations of the grounds for the amendment and three responses. It would seem to me that, given there are no new players standing to speak to the amendment, it is probably time for the question. The member for Okanagan East indicates a very small contribution...?

J. Tyabji: It's just tiny, but very important. I should mention to the Chair that if there were only one player in this room prepared to defend a position, that should be enough.

The minister was saying that the purpose of the bill is to hold the director accountable. We would hope the director is accountable for his or her actions, rather than for his or her opinions. I leave that on the record.

Amendment negatived on division.

Sections 9 and 10 approved on division.

section 11.

J. Tyabji: I'll continue this quixotic pursuit under

section 11. We see that "a parent under 19 years of age may make an agreement under

section 6 or 7 with a director," and that any "agreement made by a director under

section 6, 7 or 9 with a person under 19 years of age is enforceable against that person." I'm not sure what this means. I guess the first question is: what is the role of the grandparent? The reason I say grandparent is because the grandparent is actually the parent of a child under the age of majority. What is that person's role? That person still has legal liabilities.

Hon. J. MacPhail: The bill provides for a youth to enter into an agreement that is enforceable against the youth, actually. The provision is included in order to comply with the Infants Act, which doesn't permit people under 19 to enter into binding agreements unless another act prevents the youth.... The youth has to recognize he or she has responsibilities associated with the signing of the agreement. It would be required by our ministry to ask the youth to seek an independent person's advice before signing, if they do not comply. If they don't comply with the agreement, then support can be withdrawn.

Prior to making the agreement, the director has to assess whether or not the youth can be reconnected to the family. The youth agreement will not be used to undermine the roles of the parent to raise their children.

J. Tyabji: If I understand the minister correctly, she is saying that if the parent is found to be in non-compliance with the written agreement made under

section 6 or 7, the parent is liable. Is that what the minister is saying?

G. Wilson: No. It would be withdrawn.

J. Tyabji: Or the agreement would be withdrawn. Would that be a breaking of the agreement? The reason I mention that is that when we were on sections 6 and 7, those were both seen to be voluntary agreements that the parent could withdraw from at any time. I don't understand the relevance of this section, to be honest. I didn't understand the minister's answer.

Hon. J. MacPhail: It's not the parent; it's the youth who is held in compliance. This is a technical....

Interjection.

Hon. J. MacPhail: Yes, that's what I'm saying. Let me give you an explanation, and then we can have at it again.

[4:45]

[ Page 11733 ]

This

section allows youth to enter into a legal agreement. Under normal circumstances, a youth isn't allowed to enter into a legal agreement. We want agreements where there is an obligation on both sides, not only for us to provide services, but for the youth to have a legal obligation back to us.

The Chair: Shall the

section pass?

G. Wilson: Not just yet, hon. Chair, but I'm sure it will. We're not trying to be difficult here; we're just trying to understand it.

We have a parent under 19, therefore that parent is under the age of majority. That parent has a parent, who is a grandparent, therefore there is some legal obligation of the parent of the under-19-year-old parent -- i.e., the grandparent has some obligation and liability. The question is: if you enter into an agreement with a parent who is under the age of majority, how does that impact on the liability that would exist to the grandparent who has some legal obligation to that individual?

Hon. J. MacPhail: We think we have it. In this

section there is no legal obligation for the grandparent. The legal obligation is for the parent who may be under 19. But is there a role for the grandparent to play? Yes, there is a role that the grandparent may play -- not to give them any legal obligation, but where they may be able to offer resources to the parent and the child as well.

G. Wilson: We understand, and I'm not sure that we are even opposed to this. So you are saying that the parent under 19 can't obfuscate their responsibility by virtue of the fact that there is a home within which that individual could go, if they have entered into an agreement with the ministry; i.e., that individual is liable for whatever that individual enters into, notwithstanding the fact that they're under the age of majority.

J. Tyabji: When we were canvassing sections 6, 7 and 9, I had the impression that it wasn't so much a legal agreement as a written agreement. We had some extensive debate on that. It seemed to me that the minister was implying that the reason for the written agreement was so that there was something in writing, which was voluntary, which at any time either party could withdraw from. When I see that it's legal and enforceable against that person, I have two questions. Is it legal in that it's registered in a court? The second question is: what would be enforceable against this minority parent? We're talking about a parent under 19 who has an agreement enforceable against her or him.

Hon. J. MacPhail: An agreement is a legal concept. What we talked about previously was that they are not orders. They are agreements that both parties enter into by mutual consent. It's still a legal agreement.

Interjection.

Hon. J. MacPhail: And they're binding; that's right. This

section says that under normal circumstances a child under 19 isn't allowed to enter into an agreement. And there are obligations. If the agreement broke down, then I expect that there wouldn't be an obligation for us to provide the services that we agreed to by entering into the agreement.

Section 11 approved.

section 12.

J. Tyabji:

Section 12 says: "An agreement does not limit the court's power to hear an application and make an order about a child." In this case, will the court recognize that the agreement is a form of interim agreement? Would it be an interim custodial agreement? Would it have any weight in the court proceedings prior to the court order coming out? Would it be taken into account as part of the proceedings, before the court order?

Hon. J. MacPhail: This

section provides us with the opportunity to actually take action and perhaps remove the child if the child is at risk, even despite an agreement that may be made. So this is just saying that the court's right to protect a child overrides the agreement.

J. Tyabji: That's very helpful. So we're talking about the court's ability to supersede the written agreement. Actually, my question was: if there were court proceedings, let's say a custodial proceeding, and there was a written agreement in place, could that written agreement be entered into the proceedings? Does it become part of the proceedings for the purposes of the hearing, before the court order comes out?

Hon. J. MacPhail: Actually, there are no custodial proceedings under this act, except where the director is assuming custody.

Interjection.

Hon. J. MacPhail: Yes, and therefore if it has relevance -- if the director is assuming custody, taking the child into care -- the agreement may be determined for its relevancy. But in any other custodial proceeding it would be up to the court to decide whether it's relevant or not; we wouldn't enter into that.

G. Wilson: But I'd assume that the agreement could be entered as evidence in a court hearing in the event that the director or the judge deems it relevant. Is that right?

Hon. J. MacPhail: I'm just being advised that the rules of evidence that apply are way outside the scope of this act, but I guess it's the test of relevancy. It's not something that's governed by this act.

Section 12 approved.

section 13.

J. Tyabji: I actually anticipate this to be a fairly contentious section. I was just trying to yield the floor to someone else, but anyway....

We have a difficulty with

section 13, because the phrase "or is likely to be" comes up in almost every section. We have a problem with that, because the laws, of course, will demand that people are innocent until proven guilty. That becomes the mandate by which we determine whether or not action is taken; that's how the courts are governed. The way this is written would make it seem that.... There again it goes back to the definition of harm, abuse or neglect. There's no

definitions of harm, abuse or neglect, yet in this entire section, which talks about the circumstances where the protection of a child is needed, it not only says "if the child has been...physically harmed" but also says "or is likely to be." There again we enter into the realm of opinion, the

[ Page 11734 ]

determination by the director about whether or not something may or may not happen.

Although we will obviously be having.... I would imagine that the investigation the director would conduct on the family would precede any action or determination about when a child does or doesn't need protection. I'd certainly like to hear from the minister about the discussions that led to this

section and how comfortable she feels with the phrase "or is likely to be." What guidance will be provided? Will there be further regulation or policy on this section?

Hon. J. MacPhail: This

section stands on its own for use not only by our child protection workers but also by the courts. Let me try to explain how it works. Of course, as I said earlier, this

section has been used in other jurisdictions with success and is also in practice here. There are circumstances where a child actually hasn't been harmed, neglected or abused, but her sister has; and that parent remains in the home, as does the child. So because the behaviour of the parent hasn't changed, even though only one child has actually been abused, it's safe to predict that the other is at risk as well.

G. Wilson: We would be interested to know in what other jurisdictions this has actually been used. That's just for our own information, so that we might look it up and see indeed how successful the application has been.

I understand that this is a preventive bill, or that measures in this bill are there to be preventive. I understand what the government is attempting to accomplish by setting language in legislation that is preventive in nature. That's commendable, to be quite frank. I think it's commendable that we are attempting to prevent harm and abuse, rather than simply reacting to longstanding harm and abuse. I understand that. I don't want to go back into second reading debate on this, although it's tempting to do it.

The problem we have with the phrase "or is likely to be" is that if the director has wide discretion in looking at a variety of issues in terms of the need for protection, and if that discretion provides too much latitude, the intervention in itself could be too traumatic and detrimental, for whatever family relations might still be there, to keep that family together. So that's where our concern comes from. If there's an opportunity to keep the family together, we don't want to be precipitous by moving in so quickly that whatever counselling methods or other kinds of family consultations that could take place won't take place.

I especially say that when, under

section 13(1)(e), you have: "...if the child is emotionally harmed by the parent's conduct...." Then

section 13(2) says that emotional harm "demonstrates severe (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour." Looking at "anxiety" or "depression," unless we're talking about something empirical in terms of its measurement, there really is wide latitude here. I wonder whether the minister might comment on that. At first reading, and after further cross-referencing other sections of the bill, it just seems that this is pretty wide latitude for somebody to have.

Hon. J. MacPhail: The language that's contained in this act is certainly found in other jurisdictions, and we can actually provide you with those other jurisdictions. But let me deal with your first concern, which is that it can be just as harmful to a child to remove the child from the home as, perhaps, leaving the child in the home. Yes, you're absolutely right, and that's why we've drafted the act in this way. We finally have a new act that provides all sorts of services and alternatives other than removing the child from the home.

What will happen is: when a child is alleged to be at risk, our ministry will go in and determine whether that child is at risk because all else has failed or because other services haven't been provided that can be provided to the family in order to decrease and remove the risk from that point of view.

In fact, I'll tell you about one program that we do have in our ministry right now. It's called the home-builders program. It's intensive service support to a family where, under other circumstances, the children would actually be removed from the home. But when we examine the family, we understand that it's socioeconomic conditions. It may be a single parent who just isn't getting a break, and she needs to have some time away. Her parenting skills are less or her homemaking skills are not up to par in order to handle two, three, maybe four kids.

So we actually do an intervention, and we enter the home with some intensive services. We have been successful in avoiding the kind of traumatic situation you so aptly described. However, all of that has to be assessed in terms of the risk to the child. I agree with you that in the past as much harm has been done by removing the child as by keeping the child in the home. Now we have alternatives and other legal avenues available to us.

If I can address the issue of emotional abuse, let me say that this is a new area for British Columbia. There is no question that we have never assessed the issue of emotional abuse before. Many other provinces have enshrined that in their legislation, though. Again, it's a two-part factor. I know that all of us would be ill-served if our families were deemed guilty just because one of our family members -- or indeed ourselves -- showed symptoms of anxiety or depression or were in need of therapy.

We all may be found to be at risk -- not to address any particular member of the House, especially not the hon. member for Peace River South. The link here is that the child's demonstrative symptoms have to be tied to the parents' conduct. If your child is depressed because of school activity, which we know occurs.... There is lots of evidence and statistics to show that emotional abuse does arise out of the parents' conduct and is the tie.... It is a difficult test; there's no question about it. It's not one to be taken lightly or to be accused of lightly.

[5:00]

We have seen all sorts of cases in our ministry where a child is consistently belittled, taunted, emotionally neglected or subjected to harsh punishment, and these symptoms do become evident. I don't know whether the hon. members had a chance to see the documentary called "The Trouble With Evan." If you haven't, it's a good one to observe. It was a family where there was no physical abuse, but there was incessant and continuous haranguing of the child, and that was a good case of emotional abuse. It was put on by CBC's "Fifth Estate." I recommend it.

J. Weisgerber: I did see that documentary, and it was something that spoke very much to this issue, particulary subsection 13(1)(e). I do believe, however, that this definition is too broad. By setting out "emotionally harmed" as one of the reasons for apprehending or protecting a child and then describing the particular symptoms of emotional harm, you lead yourself to the situation where other people are, under this new act, going to be obliged to report abuse.

They may well have no way of gauging whether those particular symptoms are the result of parental abuse or some other situation that the minister describes. It seems that by identifying those four traits of emotional abuse, you set up a

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parent to be called into question, even though their own activities may not be the reason for this.

With that in mind, I would like to move an amendment to

section 13, which would be to delete subsection 13(1)(

e) and subsection 13(2). Under the amendment, subsection 13(1)(

e) would now read: "...if the child is suffering severe emotional abuse caused by the parent's conduct...." The effect of that -- and the Chair has a copy of the amendment -- would be to take away the more general term of "emotionally harmed" and remove the specific symptoms that might be identified with it. With your permission, Mr. Chair, I move that amendment.

The Chair: I thank the member for that. We have reviewed the amendment and have passed a copy on to the minister.

On the amendment.

G. Wilson: I'd like to speak in support of the amendment. It takes care of the concerns that I was alluding to a little earlier.

Secondly, I would say that the question of the conduct of the parent being a legitimate issue -- and I think a very legitimate issue -- is one that can be reviewed with some empirical evidence by anybody doing an in-home study or by somebody who has intervened to look after the interests of the child. It looks after the concerns expressed in this

section much better than the existing language, so I would strongly support the amendment.

C. Tanner: I too hadn't noted this particular paragraph. When you read

section 13(1), then

section 13(1)(e), then relate it to subsection (2) and look at "anxiety," it appears that there is an ability to loosely interpret the rules and take children when they're not at risk -- until you underline the word "severe" in subsection (2). That probably brings it more into perspective.

What would reassure me to leave it as it is would be if the minister would tell me whether, within her regulations and in her policy manual, she speaks to her employees as to how they interpret those sections together. Could the minister tell us how they do that?

Hon. J. MacPhail: Actually, that's an excellent point. Training is key to this so we don't intrude into the family unnecessarily. We are now developing not only a new policy manual but also new training modules to deal with the exact issue the hon. member outlines. It will require training to identify aspects of this kind of abuse as well as the severity of it.

Let me just tell you about my view on your amendment. Again, I'll to try to do it from the point of view of reassuring you about why we drafted it the way we did. The amendment proposed by the hon. member for Peace River South would really leave us with a definition of emotional abuse that is too broad, because there are no restrictions on it. It would leave families vulnerable to greater intrusion around these issues, because there are no restrictions.

Subsection (2) is trying to do what I think your intent is: to restrict the application of this definition so that families are not unduly harmed by it in a frivolous way. That's why we have put the restriction of "severe" into subsection (2). Again, these are clinical assessments and not assessments made by social workers -- other than to suggest that it may be the situation, but then we would go to the clinical assessment of a child before the courts. So the word "severe" is there to qualify all four aspects.

The reason we included those qualifications was so that someone couldn't come forward and say: "John is being emotionally abused because he didn't get his allowance for six months." Some people could make accusations of that kind. This has been tested in other jurisdictions, and it has been found that you need the qualifications. You need to restrict the definition in order to not have frivolous or spurious use of it.

The last point on this, again, is to reassure you that the symptoms have to be observable, and they also have to be tied very clearly to the parent's conduct. But I know that the hon. member has recognized that.

J. Weisgerber: I believe we are all trying to get to the same place. It seems to me that the danger here is in identifying these four exhibitable traits. Indeed, other circumstances will cause the presumptio