Third Session, 42nd Parliament

(2022) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, April 28, 2022

Afternoon Sitting

Issue No. 192

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Orders of the Day

Committee of the Whole House

Bill 17 — Miscellaneous Statutes Amendment Act, 2022 (continued)

M. de Jong

Hon. D. Eby

Report and Third Reading of Bills

Bill 17 — Miscellaneous Statutes Amendment Act, 2022

Second Reading of Bills

Bill 10 — Labour Relations Code Amendment Act, 2022 (continued)

M. Morris

L. Doerkson

J. Sims

E. Ross

P. Milobar

Proceedings in the Douglas Fir Room

Committee of Supply

Estimates: Ministry of Environment and Climate Change Strategy (continued)

R. Merrifield

T. Halford

Hon. G. Heyman

M. Lee

THURSDAY, APRIL 28, 2022

The House met at 1:02 p.m.

[Mr. Speaker in the chair.]

Orders of the Day

Hon. L. Beare: In this room, I call Committee of the Whole, Bill 17, Miscellaneous

Statutes Amendment Act.

In the Douglas Fir Room, I call continued estimates of the Ministry of

Environment and Climate Change Strategy.

Committee of the Whole House

BILL 17 — MISCELLANEOUS STATUTES

AMENDMENT ACT, 2022

(continued)

The House in Committee of the Whole (Section

B) on Bill 17;

J. Tegart in the chair.

The committee met at 1:04 p.m.

On clause 1 (continued) .

M. de Jong: We were, as part of the discussion on clause 1, talking about

(2.1), (2.2) and (2.3). I think I understood the Attorney’s last

explanation for what the intention was.

[1:05 p.m.]

If we go to (2.3), what I think I heard the Attorney say is….

What’s contemplated here is the possibility that on a transitional

basis, in any one of the categories that exist here, the option of

filing a dispute electronically might not exist, that the powers or the

exemptions contemplated in (2.1) and (2.2) would be enacted upon. I

shouldn’t use the word “enactment,” because that is actually the first

category.

Does that mean that at some point, there is the possibility of a

regulation that says any violation tickets issued under the following

statute…? I’m using that term to substitute for “enactment.” I suppose

enactment would include a statute or a regulation under a statute. Any

violation ticket for which the person receiving that ticket might

otherwise file an electronic notice of dispute would not have that

option, would have to rely on the other two options of either submitting

a dispute notice by mail or appearing at a particular

location.

If that is correct, are there any specific enactments that the

Attorney or the staff assisting the Attorney have in mind today for

which the exception might apply?

Hon. D. Eby: I’m advised by staff that motor vehicle tickets are the most ready

and the most amenable to this online structure and electronic filing

structure. Certainly, some of the contemplation is that perhaps there

may be an approach where only motor vehicle tickets are done through

this electronic system first, because they are the furthest along, but

that hasn’t been decided yet. It depends very much on the design of the

online system and the implementation of the same, but that is in

contemplation as a potential first step of implementing this

legislation.

M. de Jong: If that is so, should we be anticipating…? At the time the act is

brought into force, do we need to, then, anticipate a whole set of

regulations that says…? Well, the act says the recipient of a violation

ticket can file a dispute electronically. That becomes the starting

point, following the passage and enactment of the bill. Then should we

anticipate a whole series of regulations that say, “except in the

following cases, except for classes of violation tickets in all of these

categories”?

Much of the public discussion, to the extent that there has been,

has been around highway traffic violations, but in a moment, I’m going

to ask the Attorney about some other areas where violation tickets are

issued.

[1:10 p.m.]

Are we necessarily, then, going to see a whole series of

regulations that touch upon violation tickets, as classified here, where

that option of filing electronically a notice of dispute doesn’t

exist?

Hon. D. Eby: The intent of this regulation-making power, the intent of the

legislation, is the electronic filing of notice of dispute. For many

people, it will be the default. It will be the main option available,

the easiest, widely available option for filing your dispute.

This is provincial government, so there is a wide array of

potential tickets that people can receive, under various acts. What

we’re trying to anticipate here, through these regulation-making powers,

is that there might be a category of offences for which — like a square

peg trying to go into a round hole — it’s just not working, for one

reason or another. We need to be able to pull those out so that the

whole system doesn’t get held up for the slowest actor.

The difference between what I’m saying and what the member has

said is that — rather than the default being that you can only

electronically file in this very small area — our anticipation is that

the electronic filing will be widely available but that there may be

some discrete areas where we have to play catch-up or we have to address

some issues that are delaying implementation. That’s why it’s

there.

At a minimum, we believe that motor vehicle tickets, first of all,

are the predominant ticket that is issued by the provincial government,

under various authorities. So they’re the majority of the tickets.

There’s already the ability to appear electronically, with leave of the

court, for motor vehicle tickets, and they already have the e-ticketing

system in place. They’re the most ready for this. So out of the gate,

the majority of tickets issued in the province will be ready for this

process, once we roll out the online system.

M. de Jong: I can assure the Attorney that my intention today is not to be

needlessly quarrelsome on matters. I understand what the intention is,

but my concern or my question is this. There will be a day when this law

takes effect to accomplish the objectives that the Attorney has set out

for the committee. It strikes me that on that day, by virtue of how the

statute is worded, the government and the ministry will need to know,

and have set in place, regulations that exempt or preclude the ability

to file a dispute notice electronically.

I mean, in a moment, I’m going to, in a different context, ask

about everything from the Wildfire Act to the Environmental Assessment

Act, the Environmental Management Act, the Forest and Range Practices

Act. There’s this whole body of law that exists and for which violation

tickets may be issued.

[1:15 p.m.]

It strikes me that if the government isn’t set up to accept

notices of dispute electronically at the time this act comes into

effect, those regulations will need to be in place then, as opposed to

at some point in the future — where, as the Attorney General says, the

government, the state, isn’t equipped to accept those.

We will have to know that in advance, not as we go, because the

act is written in a way that says that for all of those violation

tickets, when they are issued, the person has the ability to file a

dispute electronically. If I am correct — and if I’m not, the Attorney

will tell me so — then, presumably, there is some awareness today of

those statutory provisions that will require a regulation, pursuant to

the new (2.3), that says that for a period of time, or a non-defined

period of time, electronic dispute notices will not be

available.

Hon. D. Eby: The member points out a very important chicken-and-egg problem.

When we pass the legislation, the right is created, yet I’m telling the

member that there may be categories that aren’t ready for electronic

dispute notices to be filed. What we have in the legislation is that it

is brought into force by regulation, which allows us to pass the

legislation in this place while continuing the work on the systems, so

that when it’s brought into force, we have all those regulations in

place in any categories that need to be exempted from this right to file

electronically.

I think, though, that I hear underneath the member’s question:

“Where are you guys at on this? When is this going to be implemented?” I

can provide the member with a bit of information on that. We’re advised

by Citizens’ Services that the system is almost built, that they are

engaged in testing, starting next week.

It has been built with…. The structure of it is around Motor

Vehicle Act tickets, but we think there is a possibility of having a

wide array of tickets on launch. That still won’t be clear until we

start working with the system and with the relevant stakeholders.

Obviously, the court has a role to play here, in terms of the judiciary,

the Provincial Court, being ready for this process. There are a number

of moving parts, and we want it to be successful. That’s where we are in

the real world, as well as in the legislative world.

Hopefully, when this is passed, when we bring it into force by

regulation, we’ll have a couple of things in place. One is the online

system. The other is clear knowledge of which tickets and which

processes are most amenable to this, that the judiciary is ready and

that the ticket forms themselves — which have to be updated to include

the information about electronic filing of dispute notices through

regulation — all of that is in place.

That is when we bring the legislation into force, and British

Columbians will be able to enjoy this right to file their disputes

electronically.

[1:20 p.m.]

M. de Jong: I guess the obvious question, then, is: what is that target date

for when the first tranche of violation tickets…? The Attorney has, I

think, candidly said where the bulk of the work has been focused as it

relates to highway traffic offences. But what is the target date for

when the option for enactment and the option of filing, electronically,

dispute notices will be available?

Hon. D. Eby: Obviously, any time that a member of the government stands up to

talk about an online, computer-based system and when it will be

available for the public is a perilous moment.

The goal is that we will have the system in place for British

Columbians by the end of the year. There are aspects of this that are

beyond our control in terms of the independent judiciary and the

adoption of processes by the Provincial Court. We’ll be working with

them to make sure that that goes smoothly and that we’re able to hit our

dates.

I’m sure I’ll hear about it in question period if I’m wrong at

some point, but currently the goal is, by the end of the year, to have

this in place for British Columbians.

M. de Jong: The adoption of this system and this dispute filing option — did

it involve, or does it involve, any specific additional software

procurement?

Hon. D. Eby: I don’t have that information with us in terms of procurement.

That work happens through Citizens’ Services. But what I can advise the

member is that I’ll endeavour to get that information for him and also

encourage him to raise it in Citizens’ Services estimates. But even if

he doesn’t, our team will reach out and give him the information about

how that’s being procured.

Some of the information is that we believe the online appearances

are likely to take place through the Teams platform, which the

Provincial Court is already using. There will need to be some kind of

update to the software in police vehicles in order to be consistent with

the changes. Beyond that would be just speculation. I’ll do my best to

provide that information to the member.

M. de Jong: The reason I ask won’t surprise the Attorney. It is a phenomenon

that has plagued governments — this government and previous governments.

That is the uncertainty associated with turning good ideas into working,

functioning processes where technology is involved.

Is the cost associated with the technology upgrade that this

involves fully contained within the Attorney’s budget, or does it draw

on funds from other ministries? Is it from within the court services

branch?

It strikes me…. We’ve just had a brief discussion about the

practical challenges associated with creating a new system and a new

option for British Columbians. I take it the number of violation tickets

involved here is measured in at least the ten of thousands, if not more.

I guess this is the appropriate time to at least pose that question

related to the cost and where that money is coming from.

I’ve asked about a specific procurement, and the Attorney has said

that if there is one, he’s not aware of the details. But I presume he’s

aware of whatever additional costs are involved in creating the

structure for this.

[1:25 p.m.]

Hon. D. Eby: The cost is a capital cost through my ministry, and it does run

through the Digital Investment Board at Citizens’ Services.

M. de Jong: I think one last question on (2.3). I, through our exchange, have

an appreciation of what’s being attempted here. Sub (

g) speaks to

hearing locations. I presume what is contemplated, though, is an

electronic dispute filing system that is centralized as opposed to

operated by individual courthouses or individual ministries.

In what circumstances can the Attorney…? Or with the assistance of

his staff, in what circumstances would there need to be a regulation

that says: “Any dispute that would lead to a hearing at this location

cannot be filed electronically”? That’s what sub (

g) is designed to

create. In what possible circumstance would that be required?

Hon. D. Eby: The electronic filing of the dispute is just one piece that links

into a back end that’s enabled by other statutes, regulations and

policies that include things like scheduling of court staff, scheduling

of police witnesses and court systems. So there is a

possibility….

There are about 80 or 90 locations across the province where there

are hearings held but there is no registry. They have varying levels of

access to online systems. So it is possible that we may have some of

these locations which are unable to deal with the online dispute filing

and the linkages into those systems or we may have a problem with the

scheduling system in a particular registry. That is what this

section is

meant to be able to address.

M. de Jong: Okay, well, sorry. What I had thought was being created here was a

mechanism by which electronically…. Whether it was under the highway

traffic provisions or any of the other myriad of provincial statutes

that give rise to the issuance of violation tickets, that the recipient

of a violation ticket would — once the forms have been properly adjusted

following the passage of this legislation, there would be an electronic

address to which the person would submit their notice of intention to

dispute.

I understand that a whole bunch of stuff happens after that. In

the same way that today, I think, when you mail a dispute notice for a

highway traffic speeding ticket, it goes to a centralized…. It’s been a

long time for me, you see. I haven’t had one of those in a long, long

time.

[1:30 p.m.]

But it goes to a…. It used to, at least, go to a central mail, and

then it was dealt with from there. Then I understand all of the other

challenges associated with scheduling, but those are sort of internal

challenges for the government, the ministry, the court services branch

and other ministries to figure out.

I thought that what we were trying to create here was a system by

which the recipient of the violation ticket notified the Crown, as it

were, electronically. I take issue; I dispute that — and now a whole

bunch of other stuff needs to happen that, I agree, can sometimes be

challenging. I’m not sure I still understand — wherever in the province

I am and I got my dispute ticket — why there would be a problem, once

all the systems are up and running, for me to notify the Crown,

electronically, that I dispute that. I guess I’m not convinced with the

answer I just heard.

Hon. D. Eby: I’m trying to think of a suitable analogy, but I’ll try without.

We’re at such a stage of the development of this system yet that we

don’t know what we don’t know yet about implementation with different

kinds of tickets, how it maps into the internal systems within the

courts and what will be available.

If we didn’t have this provision, we wouldn’t be able to hold back

key pieces to respond to, like, “Wow, this is just not working, for some

reason, to communicate with judiciary at our hearing location in Fort

St. John” or wherever. Or for some reason, there is an extra digit in

the conservation ticket number, and there are 16 slots in the form and

it has 17 digits in it. You know, these things happen despite the best

planning and effort. I like to think that under our government they

would never happen, but they do happen. They are the realities of these

kinds of projects.

These provisions — I’m very tempted to use an analogy; it won’t be

a good one — just allow us to respond to that to keep the project on

track so that the majority of British Columbians are able to use

electronic dispute filing and appearances. We don’t have to hold back

for the slowest or the broken piece. We have time to fix that and

address that by pulling that piece out and allowing the other ones to go

ahead.

M. de Jong: Clause 1(

d) makes what is I think on the surface a fairly

innocuous amendment to subsection 15(3): the replacement of the term

“address” with “mailing address.” The Attorney, earlier this morning,

referred in part, I think, or in passing to why that may or may not be

necessary. It might strike one person as odd, however — in a

circumstance where we are making a shift in creating an electronic

option — that the change to the provision which presently simply

requires “an address” now requires “a mailing address.”

[1:35 p.m.]

For the purpose of time, I will simply say that in some of the

acts for which violation tickets are issued, it’s not difficult to

contemplate circumstances in which a person might not have a mailing

address. They may be located somewhere out on the land base in the

context of resource-related matters and land base–related matters. So a

general question about the change. Secondly, does that create a

challenge for someone who receives a violation ticket and doesn’t have a

mailing address?

Hon. D. Eby: Subsection (3) appears to have a change. It used to say: “A notice

of dispute under this

section must contain an address….” The proposed

change, as the member notes, is: “…must contain a mailing address for

the person disputing the allegation….” Although it appears to be a

change, the way the courts have interpreted “an address” is as a mailing

address, where the court can send materials to the individual who is

disputing the ticket. So it’s not actually a change; it is a change in

the wording to reflect judicial

interpretation and implementation in

terms of the registry.

If you want to dispute, you have to provide a mailing address

where you can receive materials from the court in the event that they’re

not able to reach you through the email address which, under subsection

(3.3), you may provide. It’s not obligated for you to provide an email

address. You may provide it, but you must provide a mailing address so

that the court can be satisfied, when they send you something related to

the hearing, that that is the address you’ve designated to be receiving

those materials.

The email address fulfils the goal we have here of electronic

processing and these kinds of things. I hope people do take us up on

providing that email address and dealing electronically.

M. de Jong: I don’t want to belabour this one. The Attorney, then, is

satisfied — he’s pointed out that the present term “address” has been

judicially interpreted as representing, today, a mailing address — the

argument won’t be made, or won’t be made successfully, that an email

address qualifies as a mailing address.

I think I understand what the objective might be: to have a

physical place to which documents could be sent if necessary. But I

suppose cleverer lawyers than I might make the argument that, worded as

it is, where the state has been deemed to accept an emailed notice of

dispute, that is an email address and qualifies under the new wording of

the section.

Hon. D. Eby: Under the principles of statutory

interpretation, the statute

needs to be read as an integrated whole. That would include both

subsection (3), which talks about a mailing address, and subsection

(3.3), which talks about an email address. In order for the court to

make sense of the meaning of subsection (3.3), “email address” must mean

something different than “mailing address.” Otherwise, subsection

(3.3) is ren­dered meaningless, if it’s necessarily included in the

previous subsection.

[1:40 p.m.]

Also, words are taken out of their ordinary meaning — “a mailing

address,” an address at which you receive mail. We believe that the

courts are already using this

interpretation of the word “address.”

We’re clarifying the existing jurisprudence on this by saying “mailing

address” and that when read together with subsection 3.3, the courts

will be able to reason their way to our intention here.

M. de Jong: Let’s then go to 4.1, which may ultimately be slightly more

relevant. Here’s what I get when I read 4.1 as it relates to deemed

delivery of a dispute notice. And, of course, this can be significant in

terms of timing and limitation periods for the filing of disputes. When

I read this, it suggests to me that if you have your violation ticket

and it provides you with an electronic address to which you may file

your dispute, you fill out that address on your computer and whatever

the required form is or attachment that undoubtedly will be part of

that, and you press “Send.”

That is deemed to have been submission and — assuming it happens

within the right period of time — timely submission. It matters not

whether someone has received it, seen it, whether the server is down or

if you can demonstrate that…. God knows there are lots of technology

issues with servers. But once the recipient of the violation ticket has

fulfilled that requirement, their notice of dispute is deemed to have

been delivered. Have I got that correct?

Hon. D. Eby: There are other registries and tribunals that accept

electronically submitted documents and have a deeming provision like

this. The residential tenancy branch is one. They receive things

electronically. It’s deemed received on the date submitted, not the date

processed by the residential tenancy branch. Small claims court has a

similar provision. This is modelled on those provisions.

The member was wondering about what the template would look like

for submitting. Our anticipation is that — now, I unfortunately have had

one of these tickets recently, a parking ticket — when you have a

parking ticket and you want to pay it or you want to file a dispute with

some cities, there is an online webpage. You enter your ticket number.

It pulls up your record. It gives you some options. Do you wish to pay

it? Do you wish to dispute it? Then when you submit it, it gives you a

confirmation number for that.

That’s the format that we anticipate here — that the person will

get a confirmation that they have submitted. When they submit it — and

the legislation is clear — that is the deemed date that it has been

filed with the court for the purposes of any kind of limitation period

for the dispute.

[1:45 p.m.]

M. de Jong: I don’t take issue with what the attorney has provided by way of

information to the committee. I think my question was — and maybe

drawing on the other examples that he’s made as to determine whether

this has become an issue — in a situation where the enforcement agency

is deeming a conviction by default where there has been, from their

perspective, no receipt of any dispute notice. At some point in the

future, the recipient of the violation ticket simply says: “Well, I

pressed ‘Send.’ I don’t know what happened to it.”

What happens in that case? It strikes me that, under the

provisions, in setting aside the finding, the person would simply have

to say: “Look, I pressed ‘Send.’ The act says that when I press ‘Send,’

you’re deemed to have received it.” Has that been a problem in the

other…? What happens in that kind of a scenario?

Hon. D. Eby: We’re anticipating that the system will provide a notification, on

submission, to someone. They could then take a screen capture, or if

they’ve provided an email address, they have received some kind of

confirmation through that. If they haven’t received that and they

submitted it….

This legislation that’s in front of the House does not say it’s

deemed submitted on the date that you received confirmation. It says

it’s deemed submitted on the date that you submitted it. So that would

become a question of fact for a court on an application, where the

person shows up to set aside the default order and says: “I submitted

it. I don’t know what the problem was.” It would be up to the court to

determine whether they accepted that as a description of what happened

and gave the person more time to file.

M. de Jong: Thanks to the Attorney.

I think that’s it on clause 1, actually.

Clauses 1 and 2 approved.

On clause 3.

M. de Jong: I think this is more of a question, maybe through the Attorney, to

the drafting folks. Why are we amending the amendment to

section 2 and

not just incorporating the final wording?

It struck me as a rather clumsy way to accomplish…. I understand

the need to address treaty First Nation law. We seem to be amending the

amendment, as opposed to simply…. It makes something that’s already

complicated even that much more complicated.

Hon. D. Eby: The member is right. It is unusual. There’s a reason for it,

though, as the member may have intuited.

The member will remember, of course — who could forget? —

Miscellaneous Statutes Amendment Act (No. 2), 2021, back in the fall of

2021. There were amendments to the Offence Act relating to treaty First

Nation ticketing within that bill. Those provisions are brought into

force by regulation. They have not yet been brought into force. If those

provisions haven’t yet been brought into force, and this bill is going

to be brought into force, we need to have this

section related to treaty

First Nation law come into force later.

This

section is brought into force by regulation. It’s a separate

section so that we can work with the timing of these two bills and bring

them into force in a coordinated way so that the statute book makes

sense.

Clause 3 approved.

On clause 4.

[1:50 p.m.]

M. de Jong: We’ve taken a phrase out of the existing 15.1. In clause 4, it

says what that phrase is, “…’a justice hearing the trial on a violation

ticket’” and substituting a different phrase: “…’at a hearing in

relation to a violation ticket…’” — and then the reference to “a

justice.” What’s the significance in terms of replacing the word “trial”

with “hearing”? It’s purposeful, but what is the relevance and

significance?

Hon. D. Eby: The word “hearing” refers to a broader set of proceedings in front

of court than just the word “trial.” An example would be an application

hearing — like an application to adjourn a trial date. “Hearing” has

been used elsewhere in the amendments, so it ensures consistency but

also captures what we want, which is broader than just a

trial.

M. de Jong: That’s helpful. The act I have, or my version of the act, contains

a heading. And I realize, under the canons of construction, one must be

cautious about attributing substandard relevance to the

headings.

The heading says: “Evidence admissible in trial on a violation

ticket.” Now, the Attorney has offered an explanation for trying to

capture a broader set of judicial proceedings. Is it problematic that

the heading for the

section apparently will remain “Evidence admissible

in trial on a violation ticket”?

Hon. D. Eby: These headings are not part of the legislation. They’re put in by

editors within the office of leg. counsel. This is the original heading:

“Evidence admissible in trial on a violation ticket.”

There are two possibilities here. One is that leg. counsel is

aware and they are going to be editing that heading to reflect the

content of the amendments. The other possibility is that the member has

spotted something that leg. counsel was not aware of, in which case, I’d

like to thank him for bringing it to my attention and to staff’s

attention, and advise him that it doesn’t have to be amended in this

process in the Legislature. I’ll ask staff to have a look at that, and

they can amend headings outside of the legislative process.

M. de Jong: Can I ask this question? We’re going to get this, I think, here

momentarily in the next section. Is there any relevance or significance

between the two terms “trial” and “hearing,” relevant to the question of

parties being in attendance — if the Attorney understands my point?

Does

a trial, by definition, require people to be in physical attendance,

versus a hearing, which may have broader rules about the necessity of

parties being present? Do those terms have any relevance with respect to

the physical attendance of the parties?

[1:55 p.m.]

Hon. D. Eby: A trial is a hearing, but not all hearings are trials. A special

thank-you to staff for that one.

It’s up to the court whether they need to have a person attending

in person in front of them for the matter or not. It’s up to the court

how the particular judge or justice would like to handle that. There is

no particular significance in itself to whether it’s a hearing, like an

adjournment application, or a trial. But one would expect that if there

was an obligation to have somebody in person, it would be related to the

seriousness of the matter being determined at either the trial or the

procedural motion.

Clause 4 approved.

On clause 5.

M. de Jong: Clause 5 is probably one of the two areas where I think, perhaps,

a significant philosophical question comes into play that I’d like to

take a few moments to explore with the Attorney.

Maybe the best way to start is…. We have an existing

section 15.2

in the Offence Act. That existing

section is going to be repealed, or

proposed to be repealed, by clause 5 and replaced by the proposed

15.2.

Maybe the best place to start is simply to ask the Attorney to put

on the record an explanation for what is being sought to be achieved

here and what the significant difference is between this proposed

section 15.2 and what presently exists in the Offence Act.

Hon. D. Eby: So 15.2 currently limits the ability to appear electronically only

to those matters that are prescribed by regulation. Currently, Motor

Vehicle Act of­fences are the only ones that are

prescribed.

[2:00 p.m.]

The change is that rather than having it be exceptional that you

are able to appear virtually, we are putting in place a hierarchy of

rules that permit the chief judge to set, as a default approach,

electronic appearances.

The way that the new

section works, the hierarchy goes as follows.

As a general rule, when you’re talking about appearing on an offence

matter, the default is in person. The expectation is that it’s in

person. Now, layered on top of that are the rules of court, which can be

created by cabinet and which can affect that default method. So the

rules of court can affect how people appear.

Notwithstanding that default appearance in person, and subject to

the rules of court, this new provision allows the chief judge to direct,

for certain classes of tickets, hearings or appearances, that they may

be heard by another method of attendance, by telephone, video conference

or other means of electronic communication, by default. It creates that

ability for the chief judge to override that default method of

attendance in person.

Then it has another element to it, which is that an individual

judge hearing a matter, despite the fact that the chief judge has said

the default is online, can direct some other form of attendance,

including in person.

Let’s say they’re dealing with someone, their Internet is

continually kicking out, and they’re having difficulty with their system

to appear online. The judge can say, “Okay, enough of this; we’re going

to need you to come in to deal with this dispute,” and can direct, in

that particular matter, that the matter proceed through an in-person

process.

[S. Chandra Herbert in the chair.]

M. de Jong: Hon. Chair, that’s a good place for us to start the

conversation.

The Attorney, in his answer, has emphasized to the committee the

important and central roles of both the chief judge and an individual

judge hearing a matter. I’m going to ask. That discretionary authority

to stray from the presumptive means of a hearing — that is, one to be

held in person under the newly proposed sub 15.2(1)…. The existing

provision, sub 15.2(1), again makes reference to the applicable rules of

court, but says: “…a justice hearing the trial on a violation ticket may

adopt procedures that are conducive to justly and expeditiously

determining the matter.”

The justice, in the existing provisions, seems to be

pro­vided with fairly expansive powers and authority to adopt

different procedures. I don’t think it would preclude some of these

other “telephone, video conference or other means of electronic

communication.” So the authority that the Attorney points to in the

newly proposed 15.2, particularly in sub (2), seems to already exist in

the existing sub 15.2(1). Or am I wrong? Is the justice’s authority

somehow limited in the existing provision?

[2:05 p.m.]

The Chair: Attorney.

Hon. D. Eby: Oh, thank you, hon. Chair, and welcome.

The new

section creates the broad authority for the chief justice

to deem a different method of appearance for individuals. That does not

exist currently. What does exist currently in the

section that the

member has pointed out permits a judge hearing an individual matter to

have authority over all procedure related to that matter that’s not

otherwise dealt with by the rules or the act. The judge may not use that

authority to override the current

section 15.2 that says that you can

only appear in this way for Motor Vehicle Act offences.

What we have here is a significant broadening of the authority of

the chief judge to have this method of appearance for classes of

violation ticket and an ability of an individual judge to include, in

that general authority around procedure on the matter, the decision, to

say, “Well, I know the chief judge said, by default, that you should be

online, but that’s just not working in this matter. So we’re going to

bring you in, in person, or deal with it in some other way” — by phone,

for example.

The Chair: The Minister of Jobs, Economic Recovery and Innovation seeks

leave to make an introduction.

Hon. R. Kahlon: Yeah. Can I seek leave?

Leave granted.

Introductions by Members

Hon. R. Kahlon: Sorry. I didn’t want to wreck the flow of the member for

Abbotsford West, but I’m sure he’ll get right back into the zone once I

make the introduction that I need to make.

It’s my real pleasure today to rise today to introduce our

Canadian Women’s Rugby Sevens team, who are here visiting the B.C.

Legislature. They just recently in the Bahamas clinched a spot to go to

the Rugby Sevens World Cup. We’re extremely proud of them. They’re going

to be playing games here on the Island. In Langford, they’ll be playing

against Mexico, Spain and Australia. I think Australia is ranked No. 1

right now — not for long. So they’ll be playing against them.

I want to introduce each of them: Elissa Alarie;

Pam­phinette Buisa; Olivia Apps; Brittany Waters, who’s a coach;

Jack Hanratty, who’s a coach; Renee Gonzalez, who’s a coach; Fancy

Bermudez, who didn’t get trapped in the elevator, which is good; and

Darcy Patterson. And also joining them here is Julianne Zussman’s

brother.

I’m hoping the House can please make these amazing athletes

welcome.

Interjection.

The Chair: Thank you. Go Canada, indeed.

Debate Continued

M. de Jong: Welcome to Team Canada. They may be the only Canadians that have

encountered a scrum rougher than the ones we get around here

sometimes.

Right. Back to the business at hand. Okay. I think I have the

Attorney’s point about…. The existing act provided an individualized

power as it related to an individual proceeding. This purports to create

a broader authority vested in the chief judge to create general

directions and general presumptions about procedures that will govern

violation tickets.

[2:10 p.m.]

This is where I…. Forgive me. My submission on this point will be

a little lengthier than, hopefully, most of my other ones have been,

because the conversation has tended to focus — and it has in this

committee proceeding as well — on highway traffic offences.

In a moment I’ll ask the Attorney…. Or maybe someone can make a

note of this question now, and he can address it as part of his overall

response. The assumption is that in creating this power, he and the

government have some hopes — I won’t say expectations, because the

Attorney will point out that what he is creating is an authority that

the chief judge can exercise — about how the power will be exercised to

create a different means for dealing with highway traffic matters than

is presently the case in what is generally referred to as traffic

court.

We’ll park that question, and the Attorney can perhaps address it

somewhere along the line in the conversation that we are

having.

With the assistance of some of the staff in the opposition and the

Attorney General’s ministry, I tried to make the point through these

conversations that we are talking about violation tickets that go beyond

highway traffic legislation. I’ll come back to that in a moment, because

the implications for people on some of these highway traffic offences

can be significant. That additional ticket could lead to the loss of the

ability to drive, and that could have serious ramifications for

employment purposes, simply getting to and from work, and for some

people, the act of driving is their work.

I don’t anticipate any argument from the Attorney General about

the significance of the matters that are being dealt with. Not always

but in many instances…. Even as it relates to traffic offences, the

amounts of money are significant, but the implications of losing the

privilege to drive are perhaps even more significant for

people.

But this will cover other matters as well. At least I think it

will. Again, if I’m incorrect, then I hope the Attorney will correct me,

but the power being created would allow for the chief judge to determine

that hearings into violation tickets can be held by telephone, video

conference. We do this elsewhere. We do this at the residential tenancy

branch. I understand that, and I accept that.

Some of the other pieces of legislation, though, to which this

will apply…. Here’s just a sampling: the Wildfire Act legislation. I

mean, I looked at some of these and saw where the fines are in the

thousands of dollars. Under the regulation…. I’m not suggesting that

these are issued every day, but the regulations, when they are presented

by government, are presented to the public as saying: “Look how

seriously we take this, and that’s why we are creating fines of $10,000

or even $100,000 for offences under the Wildfire Act

regulation.”

The Environmental Assessment Act includes fines upwards of

$250,000. The Environmental Management Act — fines in the thousands of

dollars under the regulation: $75,000, $10,000, $40,000, depending on

the sections that we are dealing with.

[2:15 p.m.]

Maybe I should begin simply by asking this question of the

Attorney. Am I correct that passage of this

section will vest in the

chief judge of the Provincial Court the exclusive ability hereafter to

determine that those violation tickets, as well as highway traffic

matters, can be conducted through non-traditional proceedings that don’t

involve the accused facing their accuser in person in a traditional

hearing or trial setting?

Hon. D. Eby: The member is certainly right. There are provincial penalties that

range as high as he outlined, but where these amendments part ways from

that is that these proposed amendments only deal with violation tickets.

The highest possible fine in British Columbia currently associated with

a violation ticket is $2,000. That’s offences under two COVID-19-related

enactments: the Access to Services (COVID-19) Act and the COVID-19

Related Measures Act. There is a mandatory victim surcharge via an

additional $300 — so the ticket, $2,000, and then the total cost, as

much as $2,300. The judge does have the discretion to reduce that. That

is the high end, the high watermark currently for violation tickets in

the province and, by extension, the high watermark, then, for these

amendments.

Any offence you see in the statute book that has a higher fine,

like some of those that the member listed, is not prosecuted by

violation tickets but through a long-form information process through

the Prosecution Service. These amendments do not impact that process at

all. That process does allow people to appear by audio or video

conference in certain circumstances, but those are imported from the

Criminal Code into the Offence Act, and it’s a separate

process.

M. de Jong: Let’s come back, then, for a moment to the question as it relates

to highway traffic offences and the implications of this change for

those wishing to dispute allegations of violations of highway traffic

provisions.

Let me, first of all, just ask straight-up. My sense is that the government is hoping that

through the creation of these provisions, disputes involving highway

traffic violation tickets will be conducted differently. Is that a fair

assumption on my part?

[2:20 p.m.]

Hon. D. Eby: I think the member is correct from government’s perspective. The

reason we’re bringing these amendments forward and enabling the chief

judge to have these authorities is we hope that she will take us up on

this and use electronic processes for hearings where that’s consistent

with the administration of justice. I believe that justice

administration processes should be proportionate to the interests that

are at play.

When you’re talking about violation tickets, an online hearing can

capture and can provide a fair and impartial hearing in our Provincial

Court to people, and in a way that’s more accessible. You don’t have to

take the whole day off and sit in Robson Square waiting for your

hearing. You can do it from your phone. That is going to be a

significant advantage for a lot of people who otherwise might just be

like, “I can’t be bothered to raise my objection to this ticket. I can’t

take that kind of time off work,” or whatever.

Similarly for the system, for a judge that happens to be available

in some other part of the province, thousands of kilometres away from

where the disputant is. The chief judge could assign that judge to do a

hearing in a completely different city so that that judicial resource is

not wasted and that hearing is allowed to go ahead. It brings

efficiencies to the system. For a lot of reasons, I think this is really

positive. But at the end of the day, it is an enabling provision, so

it’s up to the chief judge how she deploys it in her court. I am

optimistic that she’ll take us up on it.

M. de Jong: Here’s where I think the challenge lies. I think the Attorney and

I can probably draw on examples that would support any kind of

submission around this. In the case of the individual who hasn’t

received a speeding ticket their whole life or hasn’t received one in 20

years and takes issue with the fact and wants to maintain a clear record

but for whom the consequences of being convicted of that violation

ticket are restricted to the payment of the fine, which is not

inconsequential, the idea of having access to a less burdensome

procedure may well be quite appealing, as the Attorney has pointed

out.

For the commercial truck driver whose livelihood de­pends on

the ability to drive and now finds himself or herself facing an

allegation, a conviction which will result in the loss of their

livelihood, the ability to convene before an adjudicator, before a

judge, and, in a more formalized way, present a defence or be confronted

by the allegations of the Crown in that formalized hearing becomes, I

think, fairly important.

The challenge here is that once the provision takes effect, the

discretion will vest entirely in a single person, albeit a learned

person. But if exercised in the way that the Attorney candidly and, I

think, fairly has expressed on behalf of the government, for that person

for whom the determination of that violation ticket will be the

difference between not only whether they can drive their personal

vehicle but maintain their employment, that opportunity to be heard in

person in the way that we are accustomed to today will

disappear.

[2:25 p.m.]

We can say: “Look, someone can make an application to have an

in-person hearing.” But I think the distinction here is whether that

person (

a) should have to and (

b) the likelihood over time of that

application being heard. You know, we used to say the same thing about

the residential tenancy branch. Well, try getting an in-person hearing

now. You’re not going to get one. Over time, this will become the

norm.

We can say all of the usual procedural safeguards are in place,

and they should be, but the formality associated with gathering in a

single place for the Crown to present their case against an individual

and for the accused to be able to present a defence is still, I think,

relevant and still real. This will likely eliminate that opportunity for

people facing consequences far graver than just a $300 fine.

I will say I am troubled by that, and others are troubled by it.

Insofar as some of the other provincial provisions that I’ve spoken to,

some of them, in addition to the fines that are levied, can carry with

them significant social stigmatization in terms of convictions that

flow.

It is the likely elimination of that ability for people

fac­ing significant consequences upon conviction — the elimination

of their ability to confront, in person, their accuser in a place

physically before the adjudicator of the matter — that troubles me. I

say that by way of statement but also by way of asking the Attorney

General what he would say to that person who, confronted by the

possibility of losing not just their licence to drive but their

livelihood, will no longer, likely, have the opportunity to confront

their accuser in the traditional setting by which these disputes and

these violation tickets are heard.

[2:30 p.m.]

Hon. D. Eby: Under our current system, the prosecutor in many of these matters

is, in fact, the witness officer, who also not infrequently appears by

phone in court. That process has been upheld as constitutional by our

courts. I think that that scenario…. It’s obviously up to the judge and

the individual disputants.

I don’t find that as accessible in terms of confronting an accuser

as when a person is appearing by video in front of you, and you can see

them, and the judge can see them, and they’re testifying. But that may

be a matter of personal preference.

Regardless, we’re not dealing with a sort of world where, under

the current system, everybody is in court together and that’s the

process, because that is not what happens in many of these cases. The

witness officer and prosecutor are on the phone. So it’s important to

know what the status quo is and what we’re proposing to make available

as a new method of appearance.

Second is, even in really serious matters and Criminal Code

proceedings, the judge can order

section 715.23. The judge can order

people to appear in different ways, including remotely, online. The

family rules have similar provisions.

The member was part of the government that introduced the civil

resolution tribunal, something that I really support because it is a

very positive justice reform to hear small claims matters under $5,000.

We’ve had an exchange about some reforms that our government has brought

into that process as well. But it’s something that consistently gets

really high ratings from people who participate in it — as accessible

and useful and fair and a good process — all done online.

In our Supreme Court, we are seeing chambers matters done online

and bail court from remote communities being done online. This is

definitely part of a trend. But in all of these processes, including

this one, the court retains, and the judge that is seized with the

matter retains, the discretion to look at the facts that are in front of

that judge, the implications for the individual and that individual’s

wishes, and may require an in-person hearing versus an online

hearing.

I accept the member’s suggestion that probably that would be a

high burden for someone to meet. It’s speculative, but I suspect it’s

probably true. I don’t know. It will be at the judge’s discretion when

they order in-person hearings and the chief judge’s discretion about

what matters will proceed online. But I accept, and I certainly hope,

that the intent here is that the default for many of these proceedings

will be online.

It’s a shift, but I think it’s a positive shift in a number of

ways. It’s important to recognize what we’re shifting from in order to

truly evaluate the implications for somebody that is contesting

something of very significant importance to them.

M. de Jong: It strikes me that a practical dilemma that an accused will face

here — and it is genuinely a practical dilemma — is that as the stakes

increase around the consequences, the decision around investing the

time, energy and possibly financial resources in defending the action

will increase also. But in making an application to a judge to have a

particular witness or to have the hearing conducted other than

electronically, it will be difficult for that accused to say to the

judge: “Well, the stakes involved here are very high.”

The judge will know, whether it’s expressed explicitly or not,

that that likely had something to do with the accused’s driving record

which, in and of itself, will signal something to the court.

[2:35 p.m.]

There will be that practical challenge associated with bringing an

application for a different type of hearing than that which the Attorney

and the government hope will become the norm. The Attorney may be

interested to hear his thoughts on that practical issue that will face a

person in receipt of a violation ticket.

Then, secondly, it strikes me that having granted this general

authority — more general than what presently exists in the Offence Act —

were problems to arise, of the sort that I’ve been discussing, it will

be difficult to withdraw this power from the chief judge and return to

where the default hearing is an in-person hearing of the sort that we

see associated with a traffic court today.

Those are two questions. The second one being: having vested this

authority in the chief judge statutorily, and created that broader

general authority, is that something that the government, or any

government in the future, would be in a position to withdraw, having

regard for the independence of the judiciary?

Hon. D. Eby: Two pieces. One is that it would, for better or worse, be a

relatively trivial matter — a regulatory amendment change to the

Rules of Court that could withdraw this authority from the

chief judge, under the hierarchy of the new

section 15.2(1). So it is

certainly possible to do and not onerous, if government felt, for some

reason, that this was going off the rails. I agree with the member that

that is very unlikely, but it is legally not hard.

The second matter, of a judge hearing some information on an

application to have an in-person hearing and why it’s important to the

person and the consequences — if they get one more point, they lose

their licence and that kind of thing — I have a couple of responses. One

is that, practically, the judge hearing the procedural application is

very likely to be a different judge than the one hearing the matter

itself. Even if it were the same judge, Provincial Court judges —

judges, generally; justices — hear matters that they have to disabuse

themselves of in order to reach a final determination.

In criminal processes, there might be a voir dire on a

constitutional issue. The judge hears a significant amount of evidence

and then rules that that evidence can’t be admitted at trial and then

goes on to hear the whole trial and reach a determination at the end,

despite having heard and knowing about this other evidence they excluded

that might suggest the guilt of the person that’s in front of

them.

We ask them, under our system, to set aside that knowledge and to

proceed in any event. The same would be true for an application that

someone made about why it was important to have an in-person

hearing.

[2:40 p.m.]

M. de Jong: With respect to the first point, the Attorney has drawn the

committee’s attention to sub 15.2(2), the applicability of the rules of

court. Is the argument or the suggestion, then, that were the government

or a subse­quent government to decide that the approach being

advo­cated or provided for here was not achieving the desired

results, short of repealing this provision, an amendment to the rules of

court that set out restrictions on the manner in which the chief judge

can exercise this power would be valid and withstand

challenge.

Hon. D. Eby: The authority is subject to the rules of court. It’s in the

legislation.

I think the member will appreciate that the relationship between

the government and the judiciary is one of partnership and respect for

our respective independence. When it comes to rules of court, there is

an Attorney General rules committee. We tend to work on these things

collaboratively. Sometimes it goes really well, and sometimes we

struggle. I know the member will identify. Sometimes the relationship is

more fraught than other times.

I don’t want to be cavalier about what it means to change the

rules of court in this way. From a technical legal standpoint, the rules

of court are regulation that can be changed by LGIC. This authority is

subject to those rules of court, and the government could change that.

We do believe that that would be upheld as legitimate and well within

these amendments and the existing legislation.

M. de Jong: I have seen it enough over the years, these kinds of proposals, to

know that one of the things the Attorney would have received in the

course of developing this legislative package of amendments is some

analysis of the degree to which this will have an impact on the present

operation of the courts.

In that regard, what can the Attorney…? If the provision is

passed, if it is enacted and, the qualifier being, if the chief judge

were to make use of the authority provided in the newly, then, amended

15.2, what does the government anticipate the impact to be? How many

cases are heard today in what we generally refer to as traffic court?

Following the implementation of the change and its full adoption, what

is the anticipated impact going to be, both in terms of case numbers and

the cost associated with the administration of justice?

[2:45 p.m.]

Hon. D. Eby: I’ll give the member some ballpark numbers and then some more

specific numbers. So ballpark: somewhere between 60,000 and 80,000

tickets are disputed on an annual basis. Of those — the trends we see —

only 30 percent proceed to a hearing in front of a judge, a trial in

front of a judge, and only 5 percent of that total actually complete a

trial and get to the point where a judge is making a guilty or

not-guilty decision. Those are the broad trends.

The specific numbers for fiscal 2021 — a pandemic year, so the

numbers are lower than usual: 61,604 tickets were disputed, and 20,312

of those were deemed not to be disputed because people didn’t show up

for the hearing. Of those, 8,110 were dismissed for want of prosecution,

which means that the prosecutor was not there for those hearings — as I

said in an answer to a previous question, typically the police officer,

but not always.

So 2,937 of those 61,000 proceeded to a trial with a not-guilty

plea and were determined by a judge, and 16,227 of those 61,000 had the

person pleading guilty in front of the judge, so there was not a finding

of guilt, but there was a plea of guilt. Those typically relate to an

attempt by the individual to reduce the amount of the ticket or seek

more time to pay, and 14,000 of these tickets involved either other

pleas, where people were successful in pleading that they were guilty of

a lesser included offence — that they admitted some elements of it —

and/or that the prosecutor withdrew the ticket or the superintendent

cancelled it, that kind of thing, sort of a catch-all

category.

Now, in terms of how many of those matters are actually going to

proceed to a hearing through the online process, that is a very open

question. It is distinctly possible that the people who don’t show up

for a physical hearing — because they couldn’t get the day off work,

they couldn’t get to court in time, or they couldn’t wait for their

hearing — may be more likely to appear through an online process. Or we

may see people with technical issues less likely able to show up — and

see that number, of people failing to appear, go up.

[2:50 p.m.]

This is very much going to be an iterative process. We’re going to

get into some provisions, later in the bill, about the pilot nature of

some of the things we’re going to try, to see where we can find

efficiencies in this process.

For example, all those people who show up and are like, “Yeah,

well, I was definitely doing what you said I was doing, but I’d like to

pay less,” or: “I’d like more time to pay.” You’ve got the police

officer there, ready to prosecute. You’ve got the judge ready to make a

determination. It’s like: “Well, why did we assemble everybody if you’re

going to admit the offence?” So it’s being able to deal with those

earlier in the process.

The goal of all of this is to improve efficiency and the

experience of people in the justice system. If we’re not achieving those

goals, the court is less likely to be using it. If we are, then, as the

member suggests, this will become a regular part of our justice system

in British Columbia in relation to these kinds of offences.

It is a project and an initiative, in partnership with our

Provincial Court, that we hope will achieve a couple of goals. One is to

improve efficiency in the system. The other is to improve people’s

experience of the system. What impact that has on how many people

proceed through a trial is very difficult to predict at this

stage.

M. de Jong: Thanks to the Attorney. Let’s, then, just for a moment, talk about

the…. I’m not surprised to hear the Attorney talk about the objective of

improved efficiency. Having seen some of these submissions and

analytical pieces in the past, it generally, attached to that, comes

with an estimate of cost savings.

It’s usually a range, because there are some variables attached to

this that make absolute predictions difficult. In attempting to direct

away from the traditional in-person hearing that today predominates, I

presume, under the guise of improved efficiencies, that the Attorney has

been provided with estimates on what the cost savings would be, both to

the ministry and to the courts. What’s he able to share with the

committee in that regard?

Hon. D. Eby: Staff advise me that we don’t have any figures to share with the

member, in terms of projections about savings or efficiencies, but I do

have from them some big-picture pieces that these reforms may address.

In the numbers I presented to the member, 70 percent of trial time is

wasted. It’s wasted because someone shows up there saying: “Yeah, you

got me. I plead guilty.”

[2:55 p.m.]

They’re wasted because people don’t show up, either on the

prosecution side or on the disputant side. That means there is a

possibility here that even if we see an increased number of people

showing up for hearings and more people disputing, the more efficient

use of time could still result in significantly reduced wastage of court

time. That includes sheriffs, the judge, the clerk, the police officer

who is attending — often as the prosecutor as well — and the disputant’s

time too, sitting and waiting in the courthouse for their matter to be

called.

It’s very difficult to put a figure on that until we have some

experience. We have a little bit of experience in the family law side

through analogous but different reforms, where there is a dispute

resolution process upfront before people get to court. Some of the pilot

pieces we’re going to talk about here create that ability for us to have

those kinds of determinations before everybody gets to court, in terms

of somebody having more time to pay or those kinds of things.

The results are quite striking where issues are narrowed and

preliminary matters are dealt with before people go to court. We’ve

released our findings about the effect of those reforms, which are very

positive. I’m hopeful that these reforms will provide significant

efficiencies.

If we end up putting the same amount of resources in, but they are

used more effectively and efficiently, we create space for population

growth or for improved processes where more people are willing to show

up and dispute their tickets that otherwise would have let something go

or not appeared. I think it will be net positive for the justice system,

government and all participants in the hearing.

M. de Jong: My purpose is not to take the balance of the day and argue with

the Attorney General about the attractiveness of — particularly, the

attractiveness from the point of view of the Crown, from the prosecution

service, from court services branch and the courts themselves — adopting

approaches that tap into available technology and ease the burdens

associated with administering our justice system. I think that the

Attorney is going to be able to point to where some of those

efficiencies might occur.

Where I struggle a little bit — perhaps more than a little bit —

is the developing trend that takes all of those things into account, but

perhaps does not take as fully into account the challenge facing that

individual citizen who is confronted by an allegation that can have

extremely serious ramifications for them, for their family, sometimes

their business, and frequently their employment, and whose ability, now,

to address that allegation is changing.

Now if I use the word “compromise,” the Attorney may take issue.

Maybe people other than the Attorney would take issue. But there is, I

believe, a fundamental importance associated with the ability of an

accused person to confront in person, in a place, those who are accusing

her or him of having committed a violation of the law and for whom the

sanctions can be quite serious.

I will say that the Attorney has not, I think, tried to hide

anything. These provisions are being created in the hopes that systems

will develop, that the courts will make use of them, that alter — and,

to a certain extent, limit — that citizen’s traditional ability to

confront in person the accusation and the accusers that bring him or her

to the justice system.

[3:00 p.m.]

Whilst I understand the motivation behind creating the new tool, I

have to register my concern and the opposition’s concern that there are

not sufficient safeguards in place to ensure that, where the sanction

the individual citizen is facing can be so serious that that fundamental

right to face their accuser in a traditional form is being

protected.

[J. Tegart in the chair.]

I don’t expect that I’m going to persuade the Attorney in that

respect, but I have appreciated the opportunity to be able to register

that concern as it relates to the proposed changes to

section 15.2 of

the Offence Act.

Hon. D. Eby: Thank you to the member. I recognize and respect his right to

express concern about this. But I do think it’s important not to

romanticize what currently happens in Provincial Court right now in

traffic disputes.

The prosecution is the witness officer, in many cases, that gave

the person the ticket. That person is appearing, in many cases, by phone

into the courtroom, where someone who shows up to dispute their ticket

has been waiting in the hallway for hours, took the day off work, is

unsure when their matter is going to be called. I know the member has

been in Provincial Court across the province and has seen how this

happens.

I mean, justice is a service that’s delivered to British

Columbians in a variety of different ways, but generally speaking,

that’s how these matters are going ahead. You don’t get to confront your

accuser, who is also your prosecutor. Their voice is coming out of a

speaker phone in front of you.

In many respects, this is superior to that approach, if the court

adopts this — that you can see them, you can look them in the eyes when

they’re testifying. You are not subject to the same kind of procedural

challenges in dealing with your life and schedule, especially if your

matter goes down for some reason and gets scheduled for another day

unexpectedly. You see the number of people who don’t attend, who dispute

their tickets and then just don’t even show up for their

hearing.

It is one thing to compare this to an ideal of perfect justice,

and it is another to contrast it with the reality of someone disputing a

matter in Provincial Court, which is challenging, stressful and

time-consuming. We should compare, fairly, these reforms with what

happens currently.

The second piece is…. I do want to point out that…. I don’t mean

this to be political in the sense that everything we do here is

political, but I don’t mean it to be more political than it sounds,

which is that I know that the previous government looked at the cost of

administering courthouses across the province and made a decision to

close a number of courthouses. There were a lot of people who stood up

and said, “You can’t do this. This is the right of people to go to

court. We need the courthouse in our community” — these kinds of

things.

They must have had a vision of how…. I do want to note that the

member was the champion of opening a new courthouse in Abbotsford. I

continued that work when I became Attorney General, and we opened that

together. So I don’t mean it to be underhanded, but I do want to say

that there was a recognition, whether I agreed with it or not, by the

previous government that, I believe, they made that decision that

justice could be delivered in different ways in different

places.

This is an example of a philosophy of justice being a service for

British Columbians. We need to meet people where they’re at, and we need

to deliver justice services to them in a way that is accessible to

them.

[3:05 p.m.]

Many people are very, very comfortable with using online services

in this way and find it preferable. I accept that it’s not everybody,

and that is why there are processes here that allow the court to take

into consideration the particular aspects of somebody’s matter that is

in front of them and to proceed accordingly, considering all of the

facts that are in front of them — the person’s individual needs, and so

on.

These online processes do create the possibility of translators

for literally hundreds of languages being available to assist in

matters, as they are in the civil resolution tribunal. It enables

scheduling. It enables efficient allocation of judicial resources. It

enables delivery of justice services in remote communities as our

government expands Internet access across the province.

I am very enthusiastic and positive about this actually expanding

access to justice and justice services in the province, taking into

account, absolutely, the member’s concerns. This is an important issue

that government should be aware of and that we will be aware of as we

monitor the implementation of this. We don’t make light of it. But at

the same time, I have a very different perspective about the positive

nature of this reform.

Clause 5 approved on division.

On clause 6.

M. de Jong: I wonder if the Attorney, just in general terms to place on the

record…. Clauses 6 and 7 obviously relate to similar provisions and a

situation in which the dispute is not whether

an act has occurred, but

the appropriate amount of fine that a person should pay who has

committed and acknowledges that act. If he could just provide a

description of what the objective of these sections is.

Hon. D. Eby:

Section 6 relates to something called Form M, which is a

prescribed form. It’s currently called Form M. That is a request for

more time to pay or a reduced fine.

Section 6 enables that form to be

submitted online. It’s just an extension of what currently happens into

the electronic forum.

Then 7 does the same in relation to treaty First Nation laws. So

the separation of that in these two sections is for the same reason as

we previously discussed: just to ensure that it syncs up when coming

into force with other amendments that we did in the fall of 2021 in a

separate misc bill.

Clause 6 approved.

Clauses 7 to 11 inclusive approved.

On clause 12.

M. de Jong: The government and the Attorney are purporting, through clause 12,

to create an additional mechanism by which certain matters can be dealt

with, and that is a conference.

[3:10 p.m.]

I wonder if the committee might prevail upon the Attorney to

explain what the roughly two pages of legislation pertaining to clause

12 and the creation of the conference in relation to violation tickets

are designed to create.

Hon. D. Eby: Essentially, this is a codification of an ability for us to create

pilot projects that enable and facilitate what more traditionally would

be known as a courthouse steps conversation. The idea is that there are

a significant number of people who dispute their ticket, and they don’t

necessarily want a trial.

They want to understand the perspective of the other side. They

want to ask for more time to pay. They want a reduced fine. They have a

fundamental misunderstanding of what they’re being accused of versus

what the ticket is for. On clearing that up, their dispute is resolved.

It is a way of trying to find out whether a trial is actually

necessary.

There are a couple of pieces to this that are really important to

understand, given some of the commentary that has taken place in the

media, particularly from lawyers who practise in this area. The first is

that participation in any of these pilots will be entirely voluntary.

You don’t have to do it. You’re welcome to not do it. It is something

that will be offered but not required.

The second is that these provisions sunset four years from the

date they come into force so that there is a requirement to come back to

the Legislature and say, “We did these pilots. We saw these results.

Shall we keep doing this?” and get the Legislature’s sign-off on making

permanent some of those pilot project initiatives. So there are a number

of aspects of this that we can get into in some detail, but big picture,

that is what is proposed here.

M. de Jong: Two questions. I’ll ask them at the same time. The first relates

to the sunset provision, which I presume the Attorney is referring to —

that which is contained in subclause 12(8) in the bill. Then the second

part of what the Attorney referred to is the voluntary nature. That

which makes this participation in these conferences voluntary seems to

me to be less clear than the provision contained in 12(8), which I think

makes the sunset provision very clear.

Can the Attorney walk the committee through how the provisions

work in a way that an accused person, the recipient of a violation

ticket, can be certain, and others can be certain, that participation in

these conferences will not, via regulation, become a mandatory feature

of the matter being litigated?

Hon. D. Eby: For the member’s first question,

section 12, it’s the very last

subsection. Subsection 8 — he is correct — is the sunset provision. This

section referring to 18.4 is repealed four years after the date it comes

into force and, on its repeal, any regulations made under it, unless

repealed earlier, are also repealed. So the whole thing disappears from

the statute book, essentially, four years from the date it comes into

force.

[3:15 p.m.]

The second question, about how people can be confident that

participation in the conference will be entirely voluntary — that

government won’t use these regulation-making authorities to have a

conscriptive conference…. The full answer to that is subsection (4),

which says that whatever pilot government sets up by regulation, the

conference must — it’s not an option — be initiated by the person who

disputed the violation ticket.

The decision about whether the conference happens, whether it’s

initiated, is entirely in the hands of the disputant who received the

ticket and wants to dispute it. It’s not in the hands of the prosecutor

or the court or government. It’s the person who’s disputing the

ticket.

M. de Jong: Thanks. To be clear, the provision in sub (4) is to be read that

in order for a conference to take place, it must be initiated by the

recipient of the violation ticket, but they are not compelled to

initiate such a conference.

Hon. D. Eby: That is correct.

M. de Jong: Maybe we can come to the part of this that has attracted some

commentary outside of these walls. That is the provisions of clause 12 —

what would become sub-sub 18.4(2)(c) — and the ability, by regulation,

to designate who may or may not or must attend a conference. I mean, I

won’t…. I think the Attorney is smart enough to know what some of the

concerns have been, and that is on the part of those who may wish to be

represented by counsel.

I don’t know that the Attorney has made any public comment on how

that regulatory power would be exercised or how he and the government

intend to exercise it. The concern, I think, derives from the fact that

the power would exist that as part of a judicial proceeding relating to

the dispute of a violation ticket, the state would assume unto itself

the authority to determine whether or not an accused person could be

represented or bring with them legal representation. As a principle,

that is causing concern, and it’s a concern that I share. But I put it

before the Attorney, and the place for us to start, I think, is to hear

his response to that concern.

[3:20 p.m.]

Hon. D. Eby: First of all, where the critique is accurate. This provision does

create the ability to exclude certain participants from this courthouse

steps conversation. The people who could be excluded could be a

presiding judge, justice. It could be witnesses. It could be counsel.

That’s where the critique is correct.

Where it, in my opinion, overswings is where that is stretched to

allegations that we are excluding people from having a lawyer at a trial

or having a lawyer on a matter — we canvassed this with the member

opposite, my critic — that is very important to them. That is not what

this is about.

This is about a streamlined process for those people who are

disputing tickets that want to engage with the prosecutor and have a

discussion about that ticket and, potentially, avoid a trial. It is

entirely voluntary. People will not be surprised by what the

requirements of this process are. It will be very clear to them, before

they initiate one of these conferences, what the requirements are for

them.

What we don’t want to do is have this become a second trial. We

want it to be a streamlined conversation: “Look, what is it you want

here? What is it you’d like to hear or know? What are you trying to get

out of this process?” “Okay, this is what I would like. What can we do

here?” “Okay, we can arrange that. We don’t have to have a trial.” Then

the matter is resolved.

Again, the process is voluntary. Also, where the critique

overswings is that there’s not been a determination yet that lawyers are

to be excluded from this. It’s possible, under the provision, but it’s

not been predetermined. We’ll work through it with the court. Because it

is a pilot, we will try different things to see what works well to

achieve that goal. This is something that happens in other Canadian

jurisdictions and has had success, which is why we’re looking at doing

it here in British Columbia.

I think it’s useful to have context here. When I gave the member

the number of tickets where people dispute — which, in this most recent

fiscal year, was 64,000 — the number of people who are represented by

counsel was 1,881. So that’s about 5 percent this year. From 2016

through 2020, inclusive, the percentages of represented parties in

disputes was 4.01 percent, 5.17 percent, 6.22 percent, 7.15 percent and

5.25 percent.

The overwhelming majority of people are showing up with no lawyer,

trying to find their way through the process and have this opportunity

to go ahead in this way. Those who are represented by counsel will be

advised by them: “I think this is a good idea for you” or “I think this

is a terrible idea. I think I should be by your side, and I think we

should do a trial. Let me look after that.” That’s the benefit of having

counsel.

[3:25 p.m.]

M. de Jong: Let me assure the Attorney of the areas where I accept and do not

quarrel with the explanation. I understand, first of all, that we are

having this conversation as it relates to clause 12 and the creation of

this conference mechanism — not a trial, not a hearing, not an ultimate

determination of guilt or innocence.

I also understand and accept that the process is a voluntary one —

and the Attorney has pointed to the provisions that govern that — and

that also, as a pilot project, unless this Legislature determines that

it is to be extended, the pilot will cease to operate, and the regs that

pertain to it, four years after the date it comes into force.

I don’t want the Attorney to be concerned that I am trying to

overly amplify or extend the concern into areas that would not be

appropriate. But I did find the statistics that the Attorney provided

interesting, as it relates to the relatively small number of cases —

violation tickets, the majority of which are traffic-related — for which

counsel was involved. And though I don’t have specific data, I suspect

that the higher the stakes for the individual, the more likely it was

that counsel would be involved.

Now, maybe there are people out there with lots of extra money who

just like hiring lawyers, but I didn’t meet a lot of them along the way.

I’m guessing that what prompted the retention of counsel was a concern

about the implications of a guilty verdict and the implications for the

individual.

Now we’ve decided — the government and the Attorney have decided —

that there is merit in creating this mechanism by which people can have

a conversation separate and apart and in advance of a trial. I think

that idea may well have some merit in terms of finding efficiencies.

We’ll find that out over the course of the next four years.

Where I think there is a legitimate concern, however, is on the

part of an accused who says: “Okay. Well, here’s this mechanism that may

be of assistance to resolving this matter. I have chosen to retain

counsel because the outcome is that important to me, but my legal

representative can’t participate in this process.” So on the one hand,

the state is saying it’s a process that has merit, that is worthwhile,

that involves benefits, but because I have chosen to retain counsel, I’m

not able to participate. At least, I may not.

I’m cognizant of what the Attorney has said — that there’s no

final decision on that matter — but he has also candidly acknowledged

that there may well be a regulation that precludes counsel from

participating in the conference. That, I think, is an important

principle.

Where the state establishes a dispute resolution process — in this

case, pertaining to violation tickets — to suggest that an accused

person, by virtue of having decided to be represented by counsel, can’t

or may not be able to participate as fully as someone else, I think that

is problematic. I think that even in those limited circumstances, given

the magnitude of the consequences that can flow from a finding of guilt

on some of these violation tickets, that is going a step too far — or,

at least, creating a regulatory power that could go a step too

far.

[3:30 p.m.]

I have tried to find a way here in the last few days to, in a

positive way, try to address the fact, and maybe I’ll come to that in a

moment.

Maybe, out of fairness, I should, if he wishes, allow the Attorney

to respond to how I have tried to express the concern as it relates to a

regulatory power that could be used and — the Attorney has fairly

pointed out — might be used to limit participation in a settlement

conference atmosphere to eliminate participation by an accused’s legal

counsel. I think that that’s going a step too far, if it were to occur,

and I don’t think that that regulatory power needs to be quite that

broad. But the Attorney may have different thoughts.

Hon. D. Eby: A couple of pieces. Maybe we’re talking at odds here, where I say:

“Well, the overwhelming majority of people are self-represented, and

they need this kind of assistance and this opportunity available to them

to have that informal conversation.” The member says: “Yes, but there’s

this minority of people who I’m concerned about, and I think they should

be able to bring their lawyer.” So trying to find some space in the

middle here.

There is nothing about retaining a lawyer, even if ultimately

there were a pilot where it said that for this kind of conference,

lawyers are restricted from attending. Like the CRT, there is nothing

that prevents that individual from talking to the lawyer and saying,

“There is this conference,” and the lawyer saying: “Look, you go in

there. Here are the things that you asked for. If you can’t get those

things, don’t agree to anything.” The conference is just as available to

that person, and they can go in armed with the legal advice that they’ve

been given.

But, again, that may or may not be the case in a given pilot. The

pilot is — our hope is — for the vast majority of people who dispute

their tickets, who are self-represented. This could provide an

opportunity for them to talk through with judicial justice, for example,

who is not going to hear the ultimate matter. “Here’s the evidence I

have, and here’s my dispute.”

The JJ can say: “Well, your dispute is a Charter dispute,” or

“Your dispute is some other piece that brings administrative processes

that are not immediately available to you, so you’re going to have to

follow some other processes to get there,” or “You don’t actually have

any evidence, and you’re acknowledging the offence. So at trial, if you

acknowledge the offence, you’re going to be found guilty. So what you’re

really asking for is more time to pay or a reduced fine.”

[3:35 p.m.]

I can tell the member — and I’m sure the member has had

conversations like this, with doing pro bono work or in a clinic or

something like that — about people just not understanding what the

purpose is of disputing a ticket and what you’re doing when you’re

disputing a ticket.

So that is our intention here with these pilots — to have those

frank courthouse steps discussions. Simply because you retain a lawyer,

even if lawyers were somehow restricted, it would not prevent you from

participating in them.

That’s the way that it works in other jurisdictions that have

these kinds of provisions and also in the CRT that we have provincially

for some civil matters.

M. de Jong: I want to assure the Attorney that I understand and accept there

is nothing in clause 12 that precludes an individual from retaining

counsel for the purpose of disputing a violation ticket, with this

potential qualification. And that is, the possibility that with respect

to a conference — I’ll call it a settlement conference; maybe that’s not

the right word in this context — to explore the matter further, it is

possible that that individual’s legal representative may not be entitled

to attend that particular procedure on behalf of the accused.

That is a principle. And this is where the difference, I think,

might occur: as a principle, I don’t think the Attorney is overly

troubled, or troubled at all, by that for reasons that he has

enunciated. I am, perhaps, more troubled by a situation in which we

would create a mechanism that is designed to assist in the resolution of

these kinds of disputes and violation tickets but would at this stage

retain the possibility through regulation that an individual’s legal

representative might not be entitled to participate in one component of

the dispute resolution process.

As a principle, I think that is problematic and something that

troubles I and the opposition. In the spirit of trying to find a

positive way to address this, I wonder if I might direct the committee

and the Attorney to what would be 18.4 sub (

f) in clause 12 of the bill,

which speaks to “respecting circumstances in which a prosecutor or

person designated under the regulations to act in the place of a

prosecutor and a defendant may enter into an agreement resolving the

matter.”

I am inclined to offer this suggestion. I have a feeling I know

what the Attorney’s response would be. But that is, in sub (f), after

the word “defendant,” to propose an amendment, the phrase “or a

defendant’s legal representative may enter into an agreement resolving

the matter,” as a way of signifying an acceptance of the possibility

that a defendant’s legal representative could be part of the conference

process.

I wonder, just to formalize the discussion, if I might propose

that amendment — after the word defendant in sub (f), the phrase: “or a

defendant’s legal representative.”

[3:40 p.m.]

The Chair: For clarification from the member, are you moving the

amendment or asking for clarification from the minister?

M. de Jong: No. To be fair to the minister, I think I was moving the amendment

for the committee’s consideration.

The Chair: We have an amendment to Bill 17, to clause 12, subsection

18.4(2)(f), to add after “and the defendant….” The addition is: “and

defendant’s legal council.”

[ CLAUSE 12, [ by adding the underlined

text as shown: ]

12 The following

section is added:

Regulations respecting conference in relation to violation

tickets

18.4

(1) The Lieutenant Governor

in Council may make regulations respecting a conference that

(

a) regarding a dispute under

section 15 in respect of

the allegation or the fine portion of the ticketed amount indicated

on the violation ticket,

(

b) held with or without a justice, and

(

c) held before a notice of hearing or notice of

appearance is sent under

section 15 (6).

(2) Without limiting subsection (1), the Lieutenant

Governor in Council may make regulations as follows:

(

a) providing that a conference is available in

respect of one or both of the following:

(

i) the allegation;

(ii) the fine portion of the ticketed amount indicated

on the violation ticket;

(

b) designating a person or a class of persons to act

in the place of a prosecutor at a conference;

(

c) respecting who may, may not or must attend a

conference;

(

d) respecting the application of

section 15 (6)

and (8) to (12) or 15.4 to a violation ticket if a conference is

initiated;

(

e) respecting the manner in which a conference is

held or the methods of attendance at a conference;

(

f) respecting circumstances in which a prosecutor or

person designated under the regulations to act in the place of a

prosecutor and a defendant and defendant’s legal

council may enter into an agreement resolving the

matter;

(

g) respecting agreements that may be entered into at

a conference that resolve the matter, subject to the approval of a

justice;

(

h) respecting the manner of approval by a justice of

an agreement referred to in paragraph (g);

(

i) respecting agreements that may be entered into at

a conference that resolve the matter and that do not require the

approval of a justice;

(

j) for the purposes of an agreement entered into

under this

section in relation to an offence, prescribing another

offence, whether or not it is an included offence;

(

k) respecting amendments that may be made to a

violation ticket;

(

l) providing for administrative matters in relation

to a conference.

(3) For the purposes of this section, the Lieutenant

Governor in Council may make regulations establishing classes of

violation tickets to which the regulations under this

section apply

and may make different regulations for different classes of

violation tickets, which classes may be based on one or more of the

following:

(

a) enactments;

(

b) offences;

(

c) enforcement officers;

(

d) types of violation tickets;

(

e) dates of completion of violation

tickets;

(

f) dates of service of violation

tickets;

(

g) amounts of the fine portion of ticketed amounts

indicated on violation tickets;

(

h) circumstances relating to the

conference;

(

i) court registries;

(

j) hearing locations;

(

k) conference locations.

(4) A conference must be initiated by the person who

disputed the violation ticket.

(5) If a minimum fine is established under the

Motor Vehicle Act for contravention of a provision of

that Act, a fine of less than the minimum established may not be

imposed if there is a conference.

(6) If a person or class of persons designated under

subsection (2) (

b) are not enforcement officers,

section 63.1

applies in relation to the designated person or class of persons as

if they were enforcement officers.

(7) If a regulation made under this

section conflicts

with this Act, the regulation prevails to the extent of the

conflict.

(8) This

section is repealed 4 years after the date it

comes into force and, on its repeal, any regulations made under it,

unless repealed earlier, are also repealed.]

On the amendment.

Hon. D. Eby: Hon. Chair, on the amendment, I take the spirit of what the member

is proposing — which is his understanding that government should not

have the authority to exclude, potentially, somebody’s lawyer from this

essentially pretrial matter.

I’ve tried to express the reasons why government would like to

reserve that authority in relation to this informal process, to ensure a

simplified process, to provide the ability for people to have frank

conversation in an entirely voluntary, non-trial, non-binding way, and

advised the member that it’s not necessarily the case that this

authority would be used. In any event, it sunsets, and we would have to

come back to the Legislature if we wanted to make any of it

permanent.

[3:45 p.m.]

I have to admit to being a bit perplexed at what I know the member

did, when he was in cabinet, with the civil resolution tribunal, for

similar reasons. The government of the day then — in something that I

support, something that our government has in fact expanded — with the

civil resolution tribunal, set up a process where lawyers could be

excluded by the CRT on the trial, not on a preliminary matter but on the

hearing, not on an insignificant matter for any British Columbians but

on civil matters up to $5,000.

To the member’s credit, consistently — we have changed that —

there was a full trial de novo that could happen after the CRT

process in Provincial Court with counsel. Our government has changed

that. But there was this full trial without a lawyer, where lawyers were

explicitly excluded. So I do find it a bit inconsistent that this is

very troubling — that this voluntary process, this courthouse-steps

discussion that could potentially exclude lawyers, is very troubling to

the opposition, yet a full trial without counsel wasn’t.

Putting that inconsistency aside, I think it’s important that

we’re able to, in consultation with the chief judge, work with different

approaches to these conferences to find the way that works best. We may

find that the conferences work best with counsel. That is a distinct

possibility. But we may also find that they assume a legalistic,

second-trial process — an attempt at discovery of a witness, the

prosecuting officer — and that it doesn’t work at all. So this simply

preserves the ability to try it and see what works best and then come

back to the Legislature and say: “This worked really well. Here’s the

information for you about what happened. We’d like to make this

permanent.”

So for that reason…. I respect — the member, as counsel, and

certainly, as counsel myself — the enthusiasm for having counsel present

at all matters and all steps. But I respectfully disagree with his

proposed amendment and do not support it.

The Chair: Are there any other speakers to the amendment?

Seeing none, we will vote on the amendment.

Amendment negatived on division.

Clause 12 approved on division.

Clauses 13 to 23 inclusive approved.

Title approved.

Hon. D. Eby: I move the committee rise and report the bill complete without

amendment.

Motion approved.

The committee rose at 3:48 p.m.

The House resumed; Mr. Speaker in the chair.

Report and

Third Reading of Bills

BILL 17 — MISCELLANEOUS STATUTES

AMENDMENT ACT,

Bill 17, Miscellaneous Statutes Amendment Act, 2022, reported

complete without amendment, read a third time and passed.

[3:50 p.m.]

Hon. D. Eby: I call second reading of Bill 10, Labour Relations Code Amendment

Act.

[J. Tegart in the chair.]

Second Reading of Bills

BILL 10 — LABOUR RELATIONS CODE

AMENDMENT ACT, 2022

(continued)

M. Morris: I carry on from where I finished off yesterday. The ramifications

of this bill, to adversely affect our province in the construction

sector right across the province, are pretty evident. I’m quite

surprised at some of the things that are being suggested in this bill.

One of the things I’m concerned about — I’ll get into some of the bill

here later — the first part, is union certification. Some have termed it

to be union raiding, designating the months of July and August for this

to happen.

I’m just going to go back a little bit in my history as an RCMP

member. Like I said yesterday, when I was speaking earlier on this bill,

I’ve had a lot of interaction with various unions over the years — good

and bad. I’ve had a lot of social interaction with union members. Some

of the misbehaviour — I guess I might term it in that fashion — or the

worst-behaved times — I guess I’ll put it that way — that I used to

witness were in those times when a union would come in and try and

certify the existing union that was in place at the time.

Tempers used to run pretty high. The police would have to come and

keep the peace. Oftentimes things got quite physical. I don’t want to go

back to those days. I don’t want to see those days come back. I think we

have progressed a long way since those particular days with the advent

of diplomacy, with a lot of the tools that we have now in order to make

things work. For the last 30 years or so, things have been working

pretty well in that regard. So I’m curious as to why the minister would

decide to include that in this bill and bring it forward at this

particular time.

We’ll find out, I guess, when we pop the hood open during

committee stage on this. I’m curious as to that particular part, because

this is the height of the construction season, July and August,

particularly in the northern parts of the province, when construction is

going full-bore. People want to get the work done, get things enclosed

before the winter months set in. The last thing that is wanted by

anybody during that period of time is any kind of labour disruption.

This will possibly lead to that. I don’t know why government would be

wanting to try and disrupt the construction season in July and

August.

[3:55 p.m.]

Is it to give more power to government-approved unions under the

CBA scheme that they have working? Is it to bring more unions into the

government-​approved union realm? Or is it to break the unions

that are currently resisting government? We’ve heard this in this House

already: I think about 55 or 60 percent of the construction workers work

outside of these designated, government-approved unions. I’m curious

about that. Hopefully, we’ll hear some rationalization for that during

the committee stage.

I want to talk a little bit about the issue of democracy and

voting. There’s a court case, several years now…. It’s Supreme Court of

Canada. It’s referenced as Advance Cutting and Coring Ltd. from 2001. I

know it’s a case that has often been referenced by labour lawyers. I

haven’t looked at labour law much. My area was always in the criminal

law and the administrative law field, so there’s much greater expertise

in both sides of the room here than myself.

I’m going to read a couple of paragraphs from that just because I

want to see how it fits into this scheme that we’re seeing. The court

stated in here: “The organization of labour must, in a civilized manner,

be elaborated and strengthened for its essential function in an economy

of private enterprise. For this, there must be enlightened leadership at

the top and democratic control at the bottom.”

Now, I’m going to just stop that quote at that particular one

there: “enlightened leadership at the top and democratic control at the

bottom.” The court has purposefully put “democratic control” in this —

democratic control. The secret ballot is a fundamental part of

democracy, a modern democracy. We’ve come a long way since we would

flash a card or have a show of hands to demonstrate our acceptance or

rejection of a certain thing. That’s ancient history. The secret ballot

is a fundamental part of a modern functioning democracy.

Another paragraph that I’ll quote from this particular case is:

“In the case of a legislated form of union security, the nature of the

legislative scheme must also be closely scrutinized.”

The courts are saying: “We’ve got to have a close look at this.”

This is what we’re doing when we’re at second reading — we’re just kind

of talking about it — but the close scrutinization is going to come and

will come during the committee stage of this particular bill. Even the

courts are saying: “We’ve got to have a look at this, pretty

close.”

If government intends to legislate an increased level of union

security, we’d better have a very close look at this to make sure that

it fits within the democratic process, that it fits the “democratic

control” part that the courts had commented on earlier. I’m going to go

into a fairly lengthy quote here, just to give the overall scheme of

what Advance Cutting and Coring was all about. Then I’m going to talk a

little bit about that quote, moving forward here.

“In this case, workers objected to being forced to join a union and

objected generally to the compulsory unionization scheme, which is

ideological in nature. This is a case where the freedom not to associate

is markedly infringed. It is a clear situation of government coercion,

the result of which mandates that workers in the construction

industry…group together in a few unions which are specified and approved

by government.”

I’m going to end the quote there and just say that sounds awfully

much like the CBA scheme that this current government has brought in. In

this case, the Supreme Court of Canada is saying: “Oh, you know, that’s

not a good scheme. It’s infringing some rights here.” I’ll go on to

quote.

[4:00 p.m.]

“The fact that there are five unions from which workers can choose

in no way negates this infringement, for it remains

government-mandated…affiliation. Self-realization of the worker is

violated in many ways. He or she must unionize. Within the prescribed

regime, democracy is further restricted by limited choice. There is no

guarantee that a majority of voters will exercise their right. A default

position can determine the outcome of elections. Those voting for

minority associations may be left out of future negotiations.

“When freedom not to associate is considered in light of other

Charter values, including liberty, freedom of conscience and expression,

mobility and the right to work, it must be concluded that governmental

mandatory union association infringes this important Charter right.

Ideological conformity is engaged, in particular, because the members of

the associations necessarily participate in and indirectly support a

system of forced association and state control over work authority. This

is a situation where the democratic rights of workers are taken

away.

[S. Chandra Herbert in the chair.]

“Being forced to accept and participate in a system that severely

limits the democratic principle in an area of labour relations is a form

of coercion that cannot be segregated totally from ideological

conformity.”

I think the statements that were made by the Supreme Court of

Canada in Advance Cutting and Coring…. Pretty definitive, in my view,

where they’re saying, from what I’m reading here…. I think the courts

are pretty much saying that these community benefit agreements infringe

the Charter.

Just as importantly, and pertaining to Bill 10, they’re saying

that when it comes to identifying, holding up your union card and

certifying they’re a member of the union in order to get to that certain

percentage level, which in order, may lead to a secret ballot vote…. But

it says there is no guarantee that a majority of voters will exercise

their right.

That could be for a number of reasons. I’ve seen it, and I think

we’ve all seen it in different situations over the years, where you have

some people that are a little bit timid and maybe they don’t want to

raise a hand or identify what side of the issue that he or she may be

on, and they may just refuse to vote altogether. If it’s a secret ballot

— and I think that there are all kinds of support for the success of a

secret ballot in getting more people to signify what their intents

are.

We don’t know their names. We can’t identify them, but we can tell

by the number of particular votes that are there. But if there’s no

guarantee that the majority of voters will exercise their right, the

court says the default provision can determine the outcome of elections.

So if people are afraid to show what they want to stand for because

they’ll be identified, then the outcome of the election is going to be

just a minority of the voters that are going to be participating in

this.

The minority of people are going to exercise their right, and the

rest of them will not. Those voting for minority associations may be

left out of future negotiations. That’s what this particular bill I

think will do. By merely showing a card to say that you’re a member of a

particular union, it’s going to leave a lot of people out of the

picture.

When freedom not to associate is considered in light of other

Charter values, including liberty, freedom of conscience and expression,

mobility and the right to work, those are pretty determinative words.

They’re out of the Charter.

CBAs say that you have to belong to a certain union and you can

work on this particular thing, this particular project, but that leaves

out everybody else. So the right to work is violated and infringed, in

my respective view on this, and it’s something that really needs to be

looked at. And when we look at it….

[4:05 p.m.]

I go back to when we were in government. We built billions of

dollars’ worth of construction projects in this province. We got the

Port Mann Bridge done in two or three years without any labour

disruption. We didn’t need a CBA to build it, to get it done. Nobody

raised any issues with that. We built the Canada Line. We put thousands

of people to work building the Canada Line and the Port Mann Bridge, and

we got those projects done. We built other projects across the province

— hospitals, schools.

This government has come in. They put CBAs in place. They’ve been

in government for five years now. How many projects are finished? I

don’t think we’ve got any that are finished. I think we’ve got lots that

haven’t even been started yet.

I can’t see the benefit of the CBA. I don’t see the benefit or the

detriment of what this Bill 10 is trying to address that is so important

to cause these significant changes that affect the democratic

process.

Signing union cards, I think, is an outdated process. This is

something that we used years ago. We have much better processes in place

today for that.

I’m going to quote another case. This is one I was familiar with

because it involved a criminal matter but some constitutional challenges

at the time, back in 1986. It’s still referenced by Supreme Court cases

and just about every other court across the province here. It’s R.

v. Oakes . It’s from 1986. It was speaking about limiting the

rights of an individual.

That particular case said: “Two central criteria must be satisfied

to establish that a limit is reasonable and demonstrably justified in a

free and democratic society. First, the objective to be served by the

measures limiting a Charter right must be sufficiently important to

warrant overriding a constitutionally protected right or freedom.” So

it’s got to be sufficiently important to warrant overriding

that.

I’m saying…. Okay. If it’s sufficiently important…. What was so

important in today’s world of CBAs that we are now going to eliminate

the secret ballot? I’m going to be really looking and listening intently

for the minister to come up with these sufficiently important reasons

during the committee stage.

It goes on to say: “The standard must be high to ensure that

trivial objectives or those discordant with the principles of a free and

democratic society do not gain protection.” I think this is something

that we really need to look at moving forward here with this. This is

going to fundamentally change…. It’s going to bring discord to the

construction sector right across the province once it’s brought

in.

I’m wondering what societal concerns the minister can identify

that are so pressing and substantial, in a free and democratic society,

that he overrides these rights. I’m sure there’s going to be a lot of

people looking at that and listening moving forward here. What societal

concerns are causing government to legislate this path to

self-actualization?

I did hear the minister in his opening comments. He’s trying to

justify some of what was presented in the bill here. I don’t think that

it was important enough, or sufficiently important, to override some of

these Charter rights that we have. This is something….

We don’t take democracy lightly in this great country of ours. We

have fought hard. There have been a number of court cases that have come

in and have redefined these particular sections of the Charter of Rights

and Freedoms since it was implemented. Court case after court case after

court case is redefining and modifying the stance that the courts have

in how these are interpreted right across the country here.

[4:10 p.m.]

I hope that anybody that’s out there in the construction business

right now that has concerns about this particular piece of legislation,

that has concerns about the loss of the secret ballot in union

certification…. I know some of you are making noise. I’ve recently seen

a letter that was signed by a number of concerned organizations and

groups right across this province here, but this is something that I

think we really need to look at. I think it’s something that government

needs to be brought to bear on this.

We’ll see what happens here in the committee stage, but this is….

I firmly believe it in my heart that this is tearing away some of the

fundamental Charter rights that every citizen has. It doesn’t matter

whether they are in the construction field or not. Everybody has the

right to work. It doesn’t matter whether they belong to a union or not.

Everybody has the right to mobility, to travel through the province and

work on any project they want, as long as they are qualified.

From my understanding, I think the CBAs are on shaky ground, and I

think this particular piece of legislation, if challenged, might have

some difficulty getting through the Charter process that we have in

place protecting every citizen of British Columbia and

Canada.

I certainly don’t support this bill, and I look forward to the

committee stage.

L. Doerkson: I haven’t heard much bragging in here, so I thought maybe I’d

start today by bringing greetings from, of course, the most beautiful

riding of Cariboo-Chilcotin. So we’ll start on a good note.

I wanted to pick up a little bit where my colleague left off. I

know we’re here to talk about Bill 10, the Labour Relations Code, and

I’m happy to offer my thoughts on that.

But I do want to just talk about the challenges of maybe before

some of these CBA agreements, because I’ve been quite frightened with

respect to projects that are in my riding and the cost that has been

associated to the potential of building, for instance, a hospital in

Williams Lake. That number, of course, has not changed for a number of

years. I am quite fearful that that number, of course, is wrong. I think

it could be wrong in a great way.

I guess, with respect to the CBA agreements, and the situation

that we’ve built here over the last number of years, my fear about that

is that, of course, in many areas throughout this province we wouldn’t

typically see those larger contractors that would be in that unionized

sort of environment. So the cost to bringing a work crew to a place like

Williams Lake and the challenges, by the way, around that, are massive

in my mind. I think that that is something that has been somewhat

forgotten or perhaps left out of the equation. I appreciate the comments

from my colleague, because I think it is a grave concern.

I certainly do, as I say, want to talk about Bill 10, the Labour

Relations Code Amendment Act. I want to explain that I have many

concerns about the bill. I’ll take a few minutes to explain those

concerns. In this place, it’s become, obviously, custom to place our

votes publicly. I can suggest to you that on many occasions that has

created stress in my life. I’m sure that many of us have experienced

that pressure or the stress around that — casting your ballot

publicly.

I just see that in this environment, Bill 10 will create, in some

of these workplaces…. I just see it as creating more pressure and more

stress on a workforce that can sometimes be placed in a very

uncomfortable position. Not in all cases, but I didn’t hear the member

wanting to stand up earlier. I think he had a chance.

Frankly, in my mind, it’s unfair. It is certainly alarming that we

will create many awkward moments for thousands of people throughout this

province that may be forced into this situation.

[4:15 p.m.]

I want to explain something. When I was a young man — many moons

ago, of course — I had an opportunity to be a member of a local in the

CUPE union, and I can tell you that, as an inexperienced young person, I

did not feel comfortable, necessarily, in a room of people that had many

more years and much more experience in all of the political workings of

that organization. I can tell you that, in my case, it was easier not to

participate at all. To me, that is wrong. You know, we should not have a

workforce that is intimidated or afraid by anyone — not by employers,

not by unions, not by anyone.

The secret ballot protected me in many cases. It allowed me to

cast ballots for other things — elections of officers, other items. I

don’t, for a moment…. I can’t even honestly believe that in a place

here, where we obviously have secret ballots to have ourselves elected,

we’re even having this conversation. I’m not sure what this could mean

or will mean or could lead to with respect to other votes. Votes for

union executives or positions of management and side unions — will those

remain secret ballot or will that also be a public vote? If it’s not a

public vote, well, then, why would we have this legislation before

us?

I know that it’s a labour bill, and I understand that that may be

a slightly different topic, but it does beg the question. I think that

for anybody to be coerced to vote a certain way is not right. I feel

that the secret ballot, of course, allows people that freedom to convey

the way that they honestly feel is the best vote for them. Again, I

can’t stress enough that in this House, we know the pressure of voting

publicly.

Secret ballot, without question, is the bedrock of our democracy.

People walking in every few years into a polling station to cast your

ballot — it’s a common right. It’s something that obviously,

fundamentally, has made our political system and the province, the

country, and it is our basic fundamental rights. These are serious

votes, and they will have serious impacts on workforces, on small

businesses, large businesses. They will have serious impacts. This is

not a local vote for the Williams Lake Stampede board of directors. It’s

not, you know, a vote for the harvest fair executive. This is a serious

vote, and it will have a serious impact — or could have.

I have to feel like I have to bring this up. This government knows

about secrecy. We’ve talked about it in the House before. These are not

my words, but it’s been voted the most secret government in Canada by

the press. I want to talk about that for a moment, because the

difficulties that have been created at many levels…. And I have felt

this pressure as well, through added costs and added challenges, through

FOI, freedom of information, trying to discourage me or others from

acquiring information. I know that we all believe in secrecy.

I have found it difficult in what is supposed to be a transparent

public system to acquire information about wildfires. I know how

difficult it is, because I filed freedom of information in September of

last year, and I’m still trying to get that information.

Deputy Speaker: Could the member help the Chair to understand the relationship to

the act that we’re discussing?

L. Doerkson: Absolutely. I’d be happy to explain it. I’d intended on moving on

past that anyhow. But I guess what I’m trying to point out is that the

government, through this bill, is going to ask members of workforces to

vote publicly in some circumstances, yet the secrecy and the privacy

that seems to be around this government is much.

[4:20 p.m.]

I can’t believe that a government that has been awarded the

designation of the most secret government in Canada would ask for anyone

to stand in a public workplace and vote publicly. I hope that explains

or potentially points you in the direction I was going to.

The freedom to join a union is a protected right under the

Canadian Charter of Rights and Freedoms, so I’m certainly not against

that. I really want to be clear about that. My frustration is not with

potential certification. As I mentioned before, I was a member of a

local in CUPE. I’m certainly not against that. I am against whatever

motive may be lurking in Bill 10 to push this into a public voting

situation. I can appreciate also that that is not in every case, of

course. It is only in a few cases.

I’m not against the idea of union representation, and I want to

make that very clear. My father was a union business agent with UFCW. My

mother was a shop steward in the BCGEU. I think it was the BCGEU.

Certainly, I’m not opposed to that. I’m opposed to the process. I think

many of us in this House are opposed to what potential process could be

put forth. Bill 10…. I feel as though the bill, in its current form, is

going to remove the right of privacy for a person to vote, and I think

that is dead wrong.

Something else that I want to talk about is that…. We’ve talked

about and we’ve seen in other legislation recently — and we’ve heard it

in the media — the cooling-off periods. I know that the government is in

favour of that in other bills. Under the current system, there is an

opportunity for that cooling-off period after cards are signed. There’s

then a voting process, which is currently a secret ballot. Of course,

that gives everyone the opportunity for a second thought about what is

happening in their workplace.

Perhaps that period of time that passes is a good time of

reflection. It’s a good time to get out of the anxious position that an

employee could find themselves in, not just from employers but from

colleagues, from people that they’re working with, from the union

itself. I think that there could be significant pressure added by all of

those parties.

I think that for the lack of a proper description, that

cooling-off period — that time when someone can go home, discuss it with

their family, discuss it with their loved ones and then be able to go

back and cast a secret ballot — is a better system than what is being

proposed under Bill 10. Let’s face it. This is not an easy time for an

employee who may be feeling pressure from all of these groups. In my

mind, it is a perfect opportunity to allow that person to decompress a

little bit.

With respect to the way that, under Bill 10, we will get to a

completed certification, I just can’t believe that reaching that 55

percent to avoid the secret ballot…. I can’t believe for one moment that

there won’t be an opportunity for influence or intimidation from the

people that may have the most to gain from the certification. I really

am fearful of that too. I think that so many times we focus on what the

employer might do. There are other people in this equation, and there

are other motives at play here. I think that that has to be

acknowledged.

In a recent press release, a quote suggested that single-step

certification was important and crucial to protecting the rights to

unionize without employer intimidation. As I just said, that’s an

interesting comment, because I’ve talked to many people in my riding

over the last couple of weeks about this bill specifically. They’re not

my words, but I’ve been told that these unions can be just as aggressiv