089 Hansard

Whitehorse, Yukon

Monday, April 21, 2008 — 1:00 p.m.

Speaker:   I will now call the House to order. At this time, we will proceed with prayers.

Prayers

DAILY ROUTINE

Speaker:      We will proceed with the Order Paper.

Are there any tributes?

TRIBUTES

In recognition of HMCS Whitehorse and crew

Mr. Inverarity:   I rise today on behalf of Members of the Legislative Assembly to pay tribute to the 10^th anniversary of the commissioning of the HMCS Whitehorse. The HMCS Whitehorse is the second ship to proudly carry that name. The ship was commissioned on April 17, 1998 in Esquimalt and now serves proudly as part of Canada’s Pacific fleet. The Hon. Ione Christensen is the sponsor of the HMCS Whitehorse, or “ship’s mom” as the crew affectionately call her.

The HMCS Whitehorse is one of 12 Kingston class maritime coastal defence vessels that provides the naval reserve the capability to fulfill its vital role in providing national security and enforcing Canadian sovereignty in waters that are under Canadian jurisdiction.

The fleet is crewed primarily by naval reservists from the reserve divisions across Canada. All but two of the positions of the crew of approximately 35 are filled by these naval reservists.

The ship is a multi-role vessel and is used in a variety of missions, including costal surveillance and patrol. Payloads can be added to provide ocean-floor mapping and mine counter-measure capabilities, including mine-sweeping and bottom-object inspection.

Ships’ crews always bond with the city they represent. Each year the commanding officer and a number of the crew members make their annual visit to Whitehorse, which enables them to further enhance the relationship between the city and its namesake ship.

It also allows citizens of Whitehorse to meet with the sailors and to gain a better understanding of the objects of the job that they perform. The HMCS Whitehorse crew is proud of their namesake and are great ambassadors for our city.

Whitehorse’s crew take part in many special events and activities that go on in our capital city. In 2007 some members of the crew had volunteered for the Canada Winter Games and also participated in the closing ceremony of the games by taking down the games official flag.

Two members of the crew stayed on in the city for an additional week to assist with the preparations for the cadet national biathlon that was being held in Whitehorse.

 Earlier this year, Lieutenant Commander Brad Henderson, along with Whitehorse mayor Bev Buckway, presented the prizes for the 2008 snow sculpture challenge during Sourdough Rendezvous.

This past Friday, there was a reception held on board the ship in Skagway. On Saturday afternoon, the City of Whitehorse hosted an anniversary celebration in Shipyards Park to meet the public or have the public meet with the crew, and also hosted an anniversary dinner on Saturday night. At the dinner, the City of Whitehorse was presented with a gift of the ship’s coat of arms. The ship’s motto is “Fortune favours the daring”.

We appreciate the bond that the ship and its crew have with our community and, on behalf of all Yukoners, we thank you for being goodwill ambassadors for the Yukon. Thank you for your service to our country. We wish you well. May God bless all of the HMCS Whitehorse crew and all those who sail upon her.

Speaker:   Are there any further tributes?

Are there any introductions of visitors?

Are there any returns or documents for tabling?

Are there any reports of committees?

Are there any petitions?

Are there any bills to be introduced?

Are there any notices of motion?

NOTICES OF MOTION

Mr. Nordick:   I give notice of the following motion:

THAT this House urges the Government of Yukon to share the past experiences and best practices that it garnered in providing bilingual services in the 2007 Canada Winter Games with the Vancouver organizing committee for the 2010 Olympic and Paralympics Winter Games.

Mr. Mitchell:    I give notice of the following motion:

THAT it is the opinion of this House that the Yukon Ombudsman and Information and Privacy Commissioner be invited to appear as a witness in Committee of the Whole to provide input relating to the Child and Family Services Act; and that this bill not proceed any further until such an invitation has been issued.

Mr. Edzerza:   I give notice of the following motion:

THAT this House expresses its opposition to war and militarism for their disastrous impacts on people and the natural environment.  

Mr. Cardiff:   I give notice of the following motion:

THAT this House urges the House leaders to renegotiate the length of the current legislative sitting so that major pieces of legislation and the massive budget that the Yukon government has introduced can be thoroughly and adequately debated.

Speaker:   Are there any further notices of motion?

Hearing none, is there a statement by a minister?

This then brings us to Question Period.

QUESTION PERIOD

Question re:  Child and Family Services Act

Mr. Mitchell:    I have a question for the Minister of Health and Social Services on Bill No. 50, the Child and Family Services Act, which is currently being considered by this House. Many Yukoners have expressed their concern with this piece of legislation. Yukon First Nations have identified areas that they feel need to be addressed. Members of both opposition parties have attempted to make constructive amendments, and last Thursday we heard from Yukon’s Ombudsman and Information and Privacy Commissioner regarding her concerns with sections of this bill.

The opposition has real and genuine concerns with this legislation. Yes, there are good things in the bill and we acknowledge the hard work of government officials and others who worked on it. However, there are problems with this legislation that should be addressed. Will the minister take back his bill, review the identified parts and resubmit an improved version in the fall sitting?

Hon. Mr. Cathers:   I would again point out to the member opposite that this bill is the result of a significant amount of work over almost five years. In fact, the clauses to which the member was referring were consulted on with the previous Information and Privacy Commissioner. Those matters have also been drafted by the Department of Justice. We’re confident the officials have done their work. They have expertise in information and privacy legislation as well as in child welfare legislation. Officials from Justice will be working with the Information and Privacy Commissioner.

Again, coming back to the legislation, I would point out to the member opposite that, through the good work of officials, representatives of the Council of Yukon First Nations, through the joint public consultations, joint policy development and joint informing of the legal drafting, we have got it right. This is a significant step forward in legislation for Yukon children and families.

Mr. Mitchell:    The minister is quick to praise the good work of the Council of Yukon First Nations but ignores their request to have this bill set aside. As was pointed out by Yukon First Nations and the Ombudsman, this bill is flawed. It does not represent the desires of many Yukoners and possibly will contravene existing legislation. It needs to be fixed.

We’re not going to criticize this minister if he stands today and tells this House he will take the bill back and have another look at it. In fact, we will be the first to give him credit.

What I am promising this minister, however, is that the Official Opposition will be merciless in our criticism if he persists in moving forward, despite the issues that have been raised, and uses the government’s majority to pass this flawed bill.

Again, I ask the minister to display his responsibility to Yukoners and simply take the bill back until the fall sitting. Will he do that?

Hon. Mr. Cathers:   Well, Mr. Speaker, I will accept the Leader of the Official Opposition’s word on that. In fact, the Official Opposition is nothing if not merciless in their approach in this Legislature.

This legislation has been the result of a significant amount of work by officials, not only within the Yukon government’s Department of Health and Social Services and Department of Justice, but also with the Council of Yukon First Nations, the joint public consultations, joint development policy, and joint informing of the legal drafting.

The work has been done. This is good legislation. The drafters in Justice who dealt with this legislation are familiar not only with information and privacy legislation, but child welfare legislation. The concerns to which the member refers, brought forward by the Ombudsman — I again remind the members that these matters were consulted on with the current Ombudsman’s predecessor in that role. That discussion occurred and officials have done their good work, as they should do. We have confidence that they have done their job.

Mr. Mitchell:    This government consults and listens to Yukoners when it is in their political best interests to do so, but in all other matters it merely dismisses it as an opinion that is best disregarded.

They are now telling us that they consulted with the previous Ombudsman. It is the current Ombudsman who has brought these concerns forward, and while it is the eleventh hour, it is not too late.

I can only describe this attitude as being arrogant. It is an attitude that was displayed to Yukon First Nation leaders in refusing to allow their voices to be heard, and now this top-down model of governance is being displayed in ignoring the current Ombudsman.

There is no better time to stop and change and mend their ways than to do so today. It is important not only to get this bill right, but also for it to be seen and perceived by all Yukoners as being right. That is this minister’s responsibility.

Will this minister simply stand on his feet and say that, in the best interests of Yukoners, he will take Bill No. 50 back and promise to bring it forward in the fall, improved?

Hon. Mr. Fentie:   Mr. Speaker, it’s clear that the Leader of the Official Opposition is really emphasizing the Privacy Commissioner’s presentation here by way of letter through the Chair. The government has done the appropriate thing. We are quite sure that in the drafting of this bill all care and caution was taken in all clauses of the bill, as always when drafting takes place.

Furthermore, what is paramount here is indeed the protection of children, and the appropriate consultation with the Information and Privacy Commissioner has been taken. The Department of Justice is working with the Information and Privacy Commissioner to address the commissioner’s concerns, as they should. We’ll leave that in their hands and the bill will go forward because it is a drastically improved bill from the one that we have in place today. This is about the best interests of children.

Question re:  Child and Family Services Act

Mr. Mitchell:    Mr. Speaker, Bill No. 50, which is now before this House, is very important to our children. It is imperative that we get it right. It should have been amended years ago but this government was busy consulting, but not listening to what they heard.

It has been the practice to consult with the Ombudsman’s office prior to bringing forward new legislation. If this government had done that, it would not be in the mess that it finds itself in today where it is now holding those consultations while we debate the bill. If it had reflected more on what it heard from First Nations, then it would not be in the mess it is in today. If it were not so arrogant and cavalier in its attitude, it would not be where it is at today. Unfortunately, it is guilty of all three, Mr. Speaker, and that is where it finds itself today.

Take the bill back and do it right. Will the minister do that?

Hon. Mr. Fentie:   The Member for Copperbelt is using a lot of adjectives, except the one of “empty of substance”, and that is the substance of the question. We are doing the appropriate thing. The consultation with the Privacy Commissioner — that’s not happening. We’re addressing the Privacy Commissioner’s concerns as they are addressed in the bill, as they should be. Again I repeat: great care and caution is taken when drafting legislation of this nature — of course. In all the legislation that is drafted, we must ensure we do our due diligence, when in this case that has been done. What is paramount is the protection of children, and the appropriate process is being taken by the Department of Justice in dealing with the Privacy Commissioner’s concerns. They have been addressed in this bill as they were in the previous bill.

Mr. Mitchell:    Well, Mr. Speaker, I have news for the Member for Watson Lake. What’s empty of substance is a commitment to consult after the bill is tabled and while it’s being debated. That’s what is empty of substance. I do not know why this Premier and this Health and Social Services minister insist on digging this hole deeper. Everyone is wrong from time to time. A real leader recognizes that and accepts responsibility for his or her actions. This minister must take a break, because he’s digging non-stop. All Yukoners want is the best legislation possible for the protection of their children. This top-down attitude that we’ve seen so far from this government, of telling us “Don’t worry, we’ll look into it after the fact,” is simply wrong. Under this government the courts are wrong, the Auditor General is wrong, the Ombudsman is wrong — who will be next, Mr. Speaker?

Will the Premier stop his government’s autocratic approach to governing and listen to the people? Will he instruct his minister to fix Bill No. 50?

Hon. Mr. Fentie:   The only thing wrong here is the Member for Copperbelt’s assertions — they’re all wrong, incorrect, empty of substance, and they are not supported by the facts.

I will repeat the answer to the member. Great care and caution is taken in drafting legislation and in this one due diligence was done to the greatest detail. The paramountcy here is the protection of children. The Privacy Commissioner’s concerns are addressed in the bill; the Department of Justice is working with the Privacy Commissioner on those issues as they should. That is the appropriate approach — not listening to the incorrect information the Leader of the Official Opposition is now putting on the floor of the Legislature.

Mr. Mitchell:    For the benefit of the Member for Watson Lake, the information on the floor of this Legislature is the information that was tabled here last week from the Privacy Commissioner and the information that was tabled here last week from the Grand Chief of the Council of Yukon First Nations — that’s the information that he now says is wrong.

This minister must realize that there are several areas under the Health minister’s watch where he simply hasn’t been able to get the job done. It appears that no amount of persuasion is going to change this minister’s attitude or this Premier’s attitude.

Perhaps the minister will approach his Premier and ask to be relieved of his responsibility for this bill, so that another minister may bring it forth in the fall sitting, reflecting the input of First Nations, the Ombudsman and any other Yukoner with a concern with this proposed act.

Will the Health and Social Services minister do that?

Hon. Mr. Fentie:   Once again, the Member for Copperbelt is wrong in his assertions. There has been a great deal of input by all involved in this process — five years of input, Mr. Speaker, which has brought us here today with an act before the Legislature that dramatically improves our ability to take care of children. The paramountcy here is children.

If the members want to do the appropriate thing, as they should, they should debate the bill constructively. Amending semicolons, commas and periods is not constructive debate, or amendments that improve or change the bill in any way, shape or form.

What has to happen here is the Official Opposition — the opposition in this House — had better get it straight. It’s time for constructive debate instead of political gamesmanship.

Question re:  Child and Family Services Act

Mr. Hardy:   On Thursday we tabled a letter from the Yukon’s Ombudsman and Privacy Commissioner, expressing serious concerns about the Child and Family Services Act that is currently under discussion. In that letter, she pointed out that one of the duties of her office is to review proposed legislation to see how it would interact with the existing Access to Information and Protection of Privacy Act. She also identified several areas where she feels the proposed Child and Family Services Act could be in conflict with the ATIPP act.

Can the Minister of Health and Social Services explain why this Privacy Commissioner was kept out of the loop when this act was being drafted and why she was not allowed to see it until it was already tabled in this House?

Hon. Mr. Fentie:   That has been answered already, Mr. Speaker. As I said, due diligence was taken in this matter, and that addresses all possible impacts with all other acts that may be related to the Child and Family Services Act.

I think it is clear here that the members opposite are taking this in an inappropriate direction. The appropriate approach is exactly what is happening today. The Department of Justice is working with the Privacy Commissioner’s office addressing those concerns to point out where they are being addressed and met in the act itself.

Mr. Hardy:   The minister has said that the Justice officials are reviewing the Privacy Commissioner’s concerns, and we will have a response sometime this week, and yet the minister wants the act to be passed before that is done.

At the same time he wants MLAs to continue discussing the bill as if the Privacy Commissioner’s concerns don’t matter. This is not making sense. Once again we have the government deciding in advance what conclusion they expect their lawyers to reach, just as they did with the asset-backed commercial paper review.

The trouble is these are the same people who drafted the bill. How can we expect them to recognize it may be flawed? Will the minister now reconsider his position and allow the Privacy Commissioner to appear as a witness before Committee of the Whole, even if it means having a special sitting for that purpose some evening this week? That is the question. That is all I really need an answer on.

Hon. Mr. Fentie:   On behalf of Justice staff and those who bear the responsibility for drafting legislation, I am sure they appreciate the faith that the Leader of the Third Party has just placed in their abilities — truly unfortunate.

As I have said, and I will repeat, the appropriate approach to the matter is being taken. The Department of Justice is pointing out to the Privacy Commissioner the areas that address her concerns. What is clear here, though, is that there is a misunderstanding by the opposition members on why the act is structured as it is in those sections. Let me help the members opposite understand that. What is paramount here is the protection of children.

Mr. Hardy:  That’s why I question this bill. It is for the children. That’s why we on this side of the House have the right to ask these questions, no matter how much the government feels we don’t. But I also can understand the box the minister is in. How could he possibly allow the Privacy Commissioner to appear as a witness when he refused to hear the First Nation leaders who have very serious concerns about this bill? What Yukoners want to know is why the government insists on ramming this legislation through when it is obviously flawed. The minister won’t allow witnesses. He won’t accept any opposition amendments to improve the bill. I do not agree with delay until fall, as the Liberal leader wants. I want to see evening sittings or an extended sitting, so we can do the job properly. Will the government at least allow that?

Hon. Mr. Fentie:   What would really contribute positively to the overall situation is if the members opposite would at least attempt to constructively debate the bill. If they did so, they would find that all these issues that they are bringing forward are addressed in the bill. There are significant changes in this bill that they appear to be afraid to debate. That’s the problem here. The fear the opposition has is that the hole being dug is their hole.

Question re:  Faro as an industrial training centre

Mr. Edzerza:  The Minister of Education stated he would encourage recommendations from the opposition benches, so I have one for him.

Reclamation of the mine site in Faro is expected to go on for many years at a cost to Canadian taxpayers of several million dollars. As someone who is familiar with the Faro operation, I think we may be missing out on a golden opportunity to use that site for a positive purpose. Would the minister consider approaching the Yukon College Board of Governors to discuss the possibility of using Faro as a base for an integrated industrial training centre, especially for courses related to mining, pipeline construction, highway building and the oil and gas industry?

Hon. Mr. Rouble:    As the Minister of Education, I believe it is my number one role to ensure that Yukon students have the opportunities that they need to succeed. That means learning in the public schools, learning at post-secondary institutions and consistent lifelong learning.

We are also working very closely with Yukon College to ensure that their strategic plan is responsive to the needs in the community, that they’re looking out for the opportunities that are becoming available and identifying where we have needs in our community. That means identifying things like a licensed practical nurse program or putting in place the survey technician program.

We will work with all our partners, including First Nations and some of our not-for-profit organizations to ensure that we have the best training to prepare Yukoners for Yukon opportunities.

Mr. Edzerza:   Obviously, the minister never saw this vision.

Just taking heavy equipment training as an example, this is something that involves a variety of machines such as scrapers, cats, loaders, packers, shovels, cranes and so forth. It also needs a lot of space with the kind of terrain that won’t be adversely affected by big machines. The abandoned benches at Faro would provide an ideal location where students could learn in a safe, controlled environment that is very similar to what they would actually find on the job.

There are also shops where heavy-duty welding, mechanics and hydraulics could be taught, for example. There are essential skills for many industries including mining, pipeline construction on the oil patch and even highway construction.

Would the Minister of Energy, Mines and Resources agree to explore this idea with his Cabinet colleagues, First Nation governments and the federal government as well as with industry and labour representatives?

Hon. Mr. Rouble:    I think it’s very important that the member opposite become aware of some of the work that’s ongoing right now. I’m not sure if he’s aware of the Yukon Mine Training Association. The association is a great group made up of mining industry people and Yukon First Nation people. The Department of Education advanced education branch is working very closely with them, as are different branches of our government, and they are also working with Human Resource Development Canada to ensure that the Yukon Mine Training Association receives some of the Canadian training dollars so we can provide Yukoners — as the member said — with the training they need to take advantage of Yukon opportunities.

Mr. Edzerza:   The students still have to leave the Yukon for this training. Mr. Speaker, Dawson City is an example of what can happen when people get together to act on a vision. Ten years ago, who would have thought that Dawson would have a widely recognized school for the arts? In many ways, Faro offers advantages that weren’t immediately available in Dawson.

It’s in a more central location; it has well-developed infrastructure and a great appeal to people who are interested in outdoor recreation. An industrial training centre would eventually offer such things as mine and mine rescue training, industrial safety, drill courses, even research into new ways to approach mine site reclamation. It has the potential to attract people from all over northern and western Canada, maybe even from overseas.

Given the huge economic potential of such a venture, will the Minister of Economic Development agree to provide some seed money for a study to look into the feasibility of this project?

Hon. Mr. Rouble:    Mr. Speaker, we certainly recognize the need to train Yukoners for Yukon opportunities and that is why we’re working with all of our training arms — with Yukon College, with advanced education branch and with some of our other partners, whether they be schools from Outside or Yukon College here.

Yukon College, for example, is now setting up a licensed practical nurse program and the survey technician program, in addition to programs that they currently have such as the social work program and the Yukon native teacher education program.

Mr. Speaker, we are working with Human Resource Development Canada and with our partners like the Yukon Mine Training Association which is working with industry people and First Nation organizations. Mr. Speaker, they have come to us saying they know the training that they need and that they know the best ways to deliver them.

We’re going to continue to work with all of our partners, those not-for-profit organizations, as well as Yukon College, which is putting forward a new strategic plan right now to ensure that Yukoners are trained for Yukon opportunities.

Question re: Air quality in government buildings

Mr. Mitchell:    My question is for the Minister of Health and Social Services. On Thursday I asked a question of this minister concerning the Whitehorse General Hospital and an air quality survey and the whereabouts of a report from the survey. The minister at that time stated that he would undertake to look into the matter for me. I know that he meant he would contact the hospital board immediately to find out the whereabouts of this report. I’m quite sure he has placed a phone call to the chair of the hospital board by now and I would like to know, along with the nurses and other hospital staff, what the minister was able to find out.

Does the minister now have the report and will he table it?

Hon. Mr. Cathers:   The member raised this issue on Thursday. I undertook to look into it while reminding the member that, contrary to his assertion that it was somehow a unique or problematic circumstance that an air-quality test was being done, this is done in all government buildings on an ongoing basis, and in the buildings of government corporations such as the Hospital Corporation.

I have made the request. I do not have a copy of the report as yet, but as I indicated to the member earlier, I am confident that if there were issues in there, they would have been brought to my attention expeditiously. We will look into this matter. I do not have a copy of the report; therefore, I cannot provide the member a copy of it. I can assure the member that if there are issues, as soon as they are brought to my attention by the Hospital Corporation, if that requires any assistance from the government, recognizing that the board is set up to manage the affairs of that corporation — or me or my colleagues, certainly we will take the appropriate action in a timely manner.

Mr. Mitchell:    Mr. Speaker, the hospital board has been in possession of this report for almost two years. This report should be public, whether it contains good or bad news.

All hospital employees have a right to know if the air they are breathing is good quality or if it may create a health hazard. They have a right to know if they are getting sick from what they are being exposed to in their everyday working environment.

All Yukoners deserve to know their risks, as they enter through the doors of the hospital, whether they are employees, patients or visitors — so I will ask again. When will the minister obtain this report and table it so that all Yukoners can see for themselves the state of air quality at the hospital? It does not seem to be a priority for this minister.

Hon. Mr. Cathers:   Again, the member is bringing up this issue and is somehow trying to create the impression that there is an issue of concern.

Speaker’s statement

Speaker:   Order please.

The Chair has allowed a fair amount of latitude all day here. If the honourable members don’t want to keep hearing me in debate, be very careful with what you say. Minister of Health and Social Services, you have the floor.

Hon. Mr. Cathers:   Thank you, Mr. Speaker. Allow me to rephrase.

The member is unnecessarily and needlessly bringing forward comments in a manner that is likely to raise public concerns.

I point out to the member opposite that air quality monitoring is done in government buildings regularly. If there were issues with the hospital that required action or assistance from the government to address, I am sure that the board would have informed me of such a matter. They are set up to manage the affairs of the Hospital Corporation.

I have requested — based on the member’s request on Thursday — that they inform me of the results of this testing. Again, I would have to remind the member opposite that if there were issues, certainly the board would take the appropriate action. It’s unfortunate that he doesn’t appreciate the work of the citizens on that board and have confidence in their ability and dedication.

Mr. Mitchell:    The public concerns already exist and they’ve been expressed by hospital workers.

The minister is basically saying to those hospital workers: “Don’t worry, be happy.” I would suggest it’s a better title to a song than an approach to ministerial responsibility.

I would like to touch on the comments made by the minister in the House on Thursday. He stated, “…I am quite certain that if there were any issues with that air quality review, they would have been brought immediately to my attention,” and he has now said so again today.

This minister has had three days since then to look into the matter and become better informed.

Will the minister please inform the House of the good or bad findings of this report and what actions will be taken from those findings to ensure the air quality is not a health and safety issue, instead of telling us that if there were any problems, he is sure he would have heard of them?

Hon. Mr. Cathers:   What I hear from the member opposite is a lack of faith on his part in the board and the CEO of the Hospital Corporation. I am appalled that the member again takes his self-described merciless approach in this questioning, and does not have faith that the board of the Hospital Corporation would do their job. That is the member’s assertion. Furthermore, Mr. Speaker, the member says there were three days. Two of those days were weekend days. I have requested that report, but the board of the Hospital Corporation, the CEO and the staff are busy people doing their job of delivering health care to Yukon citizens, and they have better things to worry about than jumping at the member’s whim.

I undertook to get that report, and undertook to see if there were any issues, but again I remind the member I have confidence the board and the CEO will do their job and, if there were issues that needed to be brought to the government’s attention or needed to be addressed, that those matters would be addressed and brought to my attention, if necessary.

I have faith in the citizens on that board, unlike the member opposite.

Speaker’s statement

Speaker:   Before the honourable member asks his question, I would just like to remind all members that, when one member is speaking, the other members please keep the chatter to a minimum. Member for Kluane, you have the floor.

Question re:  Electrical rate relief

Mr. McRobb:   Last week I asked the Energy minister to act on behalf of Yukon consumers by postponing his decision to cancel the popular rate stabilization fund, but he refused.

Last July the minister increased consumers’ power bills by 15 percent, and he is planning a repeat performance this July.

Many consumers are hurting badly from paying record high gasoline prices and power bills. The Yukon Party has done nothing to offset the higher prices at the pump, and it has created this hike to power bills, which will cost electrical ratepayers up to $500 more per year.

Last Thursday the minister wavered a bit, saying he has until July to make a final decision. Now that he has had the weekend to think it over, when can we expect this announcement?

Hon. Mr. Lang:    Of course, we did extend the rate stabilization plan last year for another 12 months, which we’ve been doing over a period of time for the six years that I have had the portfolio. Certainly, we are aware of the rising costs of energy in the territory and across Canada. This government is concerned about that.

In turn, the rate stabilization plan does nothing to address those increases. I think what we have to look at as a government and as a community is our energy consumption and how we can curb that energy consumption. I think rate stabilization is not the answer, Mr. Speaker. I think that what we have to do and what we’re doing as a government is looking at ways that our communities can better manage their energy.

Mr. McRobb:   It looks like the Health minister is not the only one who took the weekend off.

I’ve got news for the Energy, Mines and Resources minister. The electrical company is normally required two months’ lead time to make such changes to the monthly billing cycle. The deadline for a decision is nigh. Time is running out. Paying higher energy bills is hurting many Yukoners and they deserve better protection from their own government and this Energy, Mines and Resources minister in particular.

Not only has he refused to help with the bill hikes, he has refused to implement energy conservation programs to help consumers reduce their consumption. He has refused to lower taxes on gasoline, which was something the Yukon Party promoted when in opposition. He has refused to empower those who would like to generate their own power by filibustering the net-metering bill.

What will the minister do to help the energy consumer or is he satisfied with being part of the problem instead of the solution?

Hon. Mr. Lang:    The member opposite has again pulled figures out of the air, which I appreciate and understand. This government is very concerned about the power and the cost of energy in our jurisdiction. I remind the member opposite that we have some of the lowest taxes in Canada, but that’s not going to solve the issue. Our petroleum products are going up every day and every week — that’s a concern to all communities. Subsidizing those increases doesn’t do the community any good.

What we are doing is the right thing; we’re on the right track. We’re looking at energy conservation and we’re working on that in the Department of Energy, Mines and Resources, in the Energy Solutions Centre and throughout our communities. This is a big concern.

The increase in our petroleum products is a concern. We are expanding the hydro potential for the territory; we are going ahead with the GRA. Both corporations are applying and moving forward, and that will reflect lower bills for the consumer. Mr. Speaker, subsidizing individuals does not cure the problem.

Mr. McRobb:   The minister has nothing to offer those who are being hurt by this government’s own policies and lack of action. If the minister truly understood how the rate stabilization fund worked, he wouldn’t have cancelled it. In fact, it can still exist simultaneously with rate increases; it’s just that the cost of funding the program would decrease proportionately to the rate decrease — but he doesn’t understand that. He’s not on the same page; he’s not in the same chapter; he’s not even in the same book.

This minister doesn’t care about poor Yukoners who are having —

Speaker’s statement

Speaker:   Order. Did we not just discuss this? The honourable member is personalizing debate. Please be careful what you say.

Mr. McRobb:   This minister is ignoring the concerns of Yukoners. He is ignoring the concerns of those who can least afford it. Mr. Speaker, he’s doing nothing to help them out. His promise of the rate decrease in February turned out to be hollow. It has been postponed for at least a year.

What’s the minister doing to help consumers in the here and now?

Hon. Mr. Lang:    Thank you, Mr. Speaker. We are certainly doing more than the member opposite.

The subsidization — the rate stabilization plan fund — over the last period of time was in excess of $30 million. That is subsidization. I don’t think that is the way Yukoners or Canadians are going nowadays with energy. I think we have to conserve energy. We can’t subsidize it and hide the real cost.

What we have to do for the ratepayers in the territory is to go forward, get our GRA done, get the mining community up and running on hydro — the community of Pelly — and get a realistic rate reduction from the real industry that is out there.

The member opposite is in opposition. On this side of the House, we actually have to produce some product, Mr. Speaker, and that is what this government is doing.

Speaker:   The time for Question Period has now elapsed. We will proceed to Orders of the Day.

ORDERS OF THE DAY

Hon. Mr. Cathers:   Thank you, Mr. Speaker. I move that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.

Speaker:   It has been moved by the Government House Leader that the Speaker do now leave the Chair and that the House resolve into Committee of the Whole.

Motion agreed to

Speaker leaves the Chair

COMMITTEE OF THE WHOLE

Chair (Mr. Nordick):   Order please. Committee of the Whole will now come to order. The matter before the Committee is Bill No. 50, Child and Family Services Act.

Do members wish to take a brief recess?

All Hon. Members:  Agreed.

Chair:   Committee of the Whole will recess for 15 minutes.

Recess

Chair:   Order please. Committee of the Whole will now come to order.

Bill No. 50 — Child and Family Services Act — continued

Chair:   The matter before the Committee is Bill No. 50, Child and Family Services Act.

Before we proceed today,  I would like to remind all members that we are debating Bill No. 50 clause by clause. Presently we are on clause 28.

On Clause 28 — continued

Mr. Edzerza:   Mr. Chair, I would like to start today by voicing some concern about how the debate ended in the last sitting. We left debate with the minister refusing to answer questions and enter into constructive debate with the opposition. On numerous occasions I asked questions of the minister, and the only response was “clear”, and the same with the other opposition party. As I sat here, I heard many, many responses as “clear” with no respect or the courtesy of a response or any kind of an answer whatsoever.

However, I believe that today maybe that position will temporarily change because we have a camera here, and I don’t believe that kind of conduct will be put on camera.

I certainly hope today that the minister is going to be a little more cooperative and is going to enter into debate with the opposition parties and me.

Mr. Chair, four First Nations conducted independent legal reviews of this act, simply because it’s law that they are going to have to live with for years and years to come. In their opinion, there were serious concerns with respect to this act. The opinions are coming back from other legal counsel, and there are serious concerns, such as the director having too much discretion.

Again, Mr. Chair, that is all part of what we are talking about today in clause 28 when we say, “A director shall make all reasonable efforts…” It is that kind of language that is of concern.

Most recently, the Ombudsman has stated similar concerns. She stated very clearly that it is her opinion that there are problems. The Access to Information and Protection of Privacy Act may be conflicting with the Child and Family Services Act.

Mr. Chair, can it be that all five legal counsel outside of the government are wrong?

That’s a question that has a lot of discussion happening around it right now. I want to state for the record right now — because the minister is going to come back and say that this side of the House has no confidence in the officials in Justice, but that is not what is being said here. I would like to clearly make a statement: there is a lot of other legal counsel in the private sector who believe there are flaws within this act. This raises a very serious question: should the act proceed without addressing or verifying the concerns of the legal counsel outside of government?

The government has no resistance to taking court action on other issues. I would think — do they want a court action on this one too?

Maybe that’s the way to do it; maybe that’s the avenue that has to be taken. Maybe there has to be a court action to determine whether or not this proposed new act conflicts with the privacy act.

That’s a question that should definitely have a very clear definition before we go forward with this legislation.

Again, it’s no secret — it’s common knowledge — that a very high percentage of children in care are First Nation. The gallery was full here when this act first came up for discussion on the floor of the Legislature. The people in the gallery were here for a purpose, and I believe it wasn’t just to applaud the act. There were serious concerns. They would have appreciated this act being put off until the fall.

I know the government will stand up and say they have consulted until the cows came home — over five years. However, there were a lot of stops and starts, a lot of ups and downs. People were involved; people were engaged and then disengaged.

Chair’s statement

Chair:   Order please. The Chair would like to remind members that we are actually debating, clause by clause, Bill No. 50. We’ve passed general debate on the bill. We’re debating clause 28. I would like to ask members if there’s any debate on clause 28 only, please.

Mr. Edzerza:   Mr. Chair, clause 28(b) refers to First Nation children, and that is what I am speaking to. I am speaking to the fact that —

Chair’s statement

Chair:   Order please. I would like to remind the member that once the Chair has made a statement, I don’t expect members to debate what the Chair has actually put forward. I am encouraging the member to speak to clause 28.

Mr. Edzerza, you have about two minutes left.

Mr. Edzerza:   Thank you, Mr. Chair.

There is major concern with this clause. As I stated previously, upon asking the minister questions on several occasions in the last debate when this ended, he refused to answer. What does a person do when you come and try to debate something that the government side is not going to get serious about, and they are going to continue to — like the old saying goes — rag the puck?

It is very difficult to get engaged here on really constructive debate when you are told “clear” every time you ask a question. It kind of defeats the purpose of wanting to debate any of this legislation. At one point, a person might want to ask: what is the sense of debating this if you are going to be talking to yourself on this side of the House?

Those are things I would like to have the minister address. I would like to ask him to become very serious about the questions from the opposition. The questions that are being asked are very legitimate with regard to this bill.

Again, the question I will leave with the minister: should the act proceed without addressing or verifying the concerns of the legal counsel outside of government? Are they simply all wrong?

Hon. Mr. Cathers:   To begin, I would like to point out that the Member for McIntyre-Takhini was making statements in front of the camera with regard to our debate on Thursday, and I would remind him of the fact that I did answer questions from the opposition. However, when it became clear that the opposition was asking the same questions and it appeared there was an opposition attempt to simply filibuster debate, at that point I was not going to rise and answer the same question for the fifth, sixth or seventh time in debate. The question was answered; I do appreciate the concerns and I did respond to those concerns.

The member brought up the issue of lawyers having different legal opinions. I would ask the member and anyone listening to this debate the question, rather facetiously, whether lawyers ever disagree with each other. Well, of course, this is a standard matter or situation within our legal system. There are always differing opinions among lawyers. If the government were to put in place a policy whereby we could not bring forward legislation — if anyone had a lawyer who came forward with a differing opinion then government would be gridlocked and nothing would move forward.

The officials in the Department of Justice have the expertise in legal drafting and in government policy. They have done their work. I have confidence in that work. I would point out to the members opposite, with regard to the debate about concerns of the current Information and Privacy Commissioner, that areas of the act were discussed with her predecessor and those matters, through the appropriate process by the legal drafters, have been considered and addressed. Officials from Justice will be working with the new Information and Privacy Commissioner on resolving her concerns with this legislation.

It is good legislation. Officials did their good work, followed the appropriate process and followed a process that took almost five years through jointly going out with the Council of Yukon First Nations and doing public consultations, jointly developing a policy and jointly informing the legal drafting.

That good work has been done by officials and we have confidence that this legislation meets the high standards necessary in such matters. It strikes the appropriate balance between access to information and the protection of personal privacy.

I would remind members opposite that it is standard in child welfare legislation for that legislation to have its own specific provisions related to such matters in the disclosure of personal information. Issues related to child welfare — investigations by a director under this legislation are considered law enforcement under the purposes of the Access to Information and Protection of Privacy Act legislation.

It requires some limitations in disclosure of information to protect the identity of individuals, to prevent disclosure that would interfere with an investigation, to prevent revealing the identity of a confidential source or steps that would endanger the life of a person or interfere with gathering information.

This legislation has followed the practices that were in place under the Children’s Act and has new provisions based very heavily on legislation within the Province of British Columbia. I am confident that officials have done their good work. We look forward to continuing further debate.

If the members have any substantive concerns or questions with regard to any of the clauses, I look forward to those questions. I would hope that today they would have an appetite to proceed with debate, to do their jobs as members of the Legislature, as we on this side will do ours, to engage in substantive debate on the clauses, debate the policy implications, ask the questions, discuss their concerns — if indeed they have any — and if their concerns are addressed, to move forward.

I have to reiterate that officials followed the appropriate process and that the appropriate steps have been taken and are being taken to resolve any outstanding concerns.

This is a good piece of legislation; it is a significant step forward and, therefore, with regard to the current clause under debate, clause 28, and subsequent clauses, I would look forward to positive, constructive debate with members opposite of what is a very important piece of legislation for Yukon children and families. It provides far greater involvement of First Nations, extended family and of individuals affected in cooperative planning, alternative dispute resolution and other measures aimed at avoiding proceeding to court, unless absolutely necessary.

The provisions around disclosure and reporting the results of an investigation, such as in the clause under discussion, must be dealt with in keeping with the standard of child welfare legislation from coast to coast. That is what this legislation does.

I am confident this legislation is one of the best pieces of child welfare legislation in the country. I look forward to constructive debate with members opposite.

Mr. Mitchell:    I’ve listened attentively to what the minister had to say and I was also here Thursday afternoon when I attempted to ask the substantive question on clause 28, based on the letter we had just received a few hours earlier from the Ombudsman and Privacy Commissioner. At that point, the minister did not choose to enter into that debate. The minister should be careful whom he chastises for not having constructive debate.

I will ask the question again today. The minister has had the weekend to consider the answers to this question. It relates to clause 28, particularly subclauses (3) and (4), which say:

“(3) The director shall make all reasonable efforts to provide the person who made the initial report with information about the results of the investigation as the director determines reasonable in the circumstances.

“(4) The director may report the results of the investigation to the child’s school and any community group or person with an interest in the child that the director thinks should be notified.”

Then, we look at the letter that came from the Privacy Commissioner and Ombudsman where she says — starting at the bottom of page 3 of her letter, if the minister has it in front of him: “The importance of protecting personal information is recognized and addressed in clause 172 of the proposed legislation which designates a First Nation service authority as a public body subject to the ATIPP act. However, one can imagine many situations in which the department will be providing personal information to outside agencies or individuals who are not subject to the ATIPP act. In their hands, the collection, use, disclosure and control of that personal information will not be protected by the ATIPP act. Examples of such individuals or agencies are: treatment professionals, parents, relatives, foster parents, prospective adoptive parents, doctors, caregivers, community groups or associations and persons participating in a family conference or other co-operative planning process.

“Sections 28 and 42 of the proposed legislation, dealing with notification illustrate this concern.”

Again, my question for the minister — which I did ask on Thursday; I didn’t get a response, so I will ask it again now: how has the minister satisfied himself that the concerns expressed by the Privacy Commissioner and Ombudsman in her letter regarding this very clause, clause 28, about confidential information going to third parties who are not subject to ATIPP will be addressed by this act?

Has the minister consulted with officials? He says he has, but he is still awaiting some of the opinions. Last week he said that he would have opinions to share with us today.

What we tried to say on Thursday was that we were very wary of passing legislation with a promise to receive an opinion that would support the minister’s assertions at a later date. What we felt was that we should have the opinions or the reply from Justice officials to this letter that raises the concerns I just outlined, as well as other concerns in front of us, so that we could either: (a) agree that there is no concern and all of the concerns have been answered, or (b) work constructively with the minister to look at possible amendments to address the concerns that have been raised by the Yukon’s Information and Privacy Commissioner and Ombudsman.

I’m hoping that the minister has in front of him the answers, and we certainly would have preferred to hear these questions on the floor of the House explained in greater detail than this letter from the Ombudsman goes into. Earlier today in Question Period, the Premier made reference to the current Ombudsman’s predecessor, the former ombudsman, having been consulted on this act. We would point out that the current Ombudsman/Privacy Commissioner has been in place for some time now. She is a well-known legal scholar. She has certain abilities because of her legal background beyond those which, able though he was, her predecessor had available to him because he was not a lawyer. When she brings these concerns forward, we take them seriously.

I look forward to the minister’s constructive response to this question.

Hon. Mr. Cathers:   It is a little disturbing to hear what I think the member was implying about the abilities of the previous Ombudsman/Privacy Commissioner.

Some Hon. Member:   (Inaudible)

Point of order

Chair:   Mr. Mitchell, on a point of order.

Mr. Mitchell:    I believe that the minister is now about to impute —

Chair’s ruling

Chair:   Order please. There is no point of order.

Hon. Mr. Cathers:   It is interesting that the member appears in his mind to have a new standard of debate where it is not a breach of the Standing Orders: it is when he believes they are about to be breached that he then rises on a point of order.

Mr. Chair, in moving on to the member’s concerns, I would point out again the former Information and Privacy Commissioner was consulted on the provisions of the legislation that interact with ATIPP and the Access to Information and Protection of Privacy Act.

In this area, particularly in clause 28, which we are now under, one of the things under “Reporting back”, which is referred to in this area is that a director shall make all reasonable efforts to report the results of an investigation back to the child’s parents, the First Nation if they are member of a First Nation, and the child, if they are capable of understanding the information, while providing some ability for making it clear that the director does not have to report the results of the investigation if reporting the results is likely to endanger the child’s safety or cause physical or emotional harm to any person, or if a criminal investigation into the matter is underway or contemplated.

This is a standard provision in child welfare legislation. For the member’s reference, I would note that this was also requested through the consultation and this is similar to and consistent with child welfare legislation in other jurisdictions, such as British Columbia’s Child, Family and Community Services Act, wherein section 16 has similar provisions. This is, again, standard procedure in child welfare legislation. It is standard to provide discretion to the director and place, under the director’s authority, matters relating to the disclosure of information.

I would point out to the member that although this legislation places the control around information largely in the hands of a director, it does not mean that the information is at risk or is not dealt with appropriately. In fact, as the member ought to know by now, it is not unusual in Yukon legislation. Some legislation, such as the Statistics Act, for one — and there are a number of others — have provisions and ATIPP does not cover those areas of the legislation. Again, this is a fairly standard matter.

This area, clause 28, is specific to reporting back. It is consistent with other jurisdictions, as are the other provisions about which the member was expressing concern. Some of those matters exist in current legislation, and the other provisions are based on legislation in the Province of British Columbia.

Again, these matters have been dealt with. The process was followed appropriately by officials with the Department of Justice. I have confidence in the ability of the legal drafters in the Department of Justice. They are familiar with both access to information legislation and child welfare legislation.

They have done their good work. This legislation is one of the best pieces of legislation in the country. It is a significant step forward, and appropriate protection for personal information is provided.

 As is common in other legislation of this type, the individual tasked with the responsibility for that information and disclosure — or decision not to disclose it — is the director. That is standard in child welfare legislation, and it is appropriate that we follow the same model. I trust this has addressed the member’s concerns.

The member noted, and others referred to, certain professions not specifically under Access to Information and Protection of Privacy Act. I would point out that while they are not covered under the ATIPP act, it does not mean they have no obligation under this legislation and secondly, the fact that a number of those professions, such as doctors, have their own specific regulations and oaths that they must take around confidentiality of information. I would certainly hope the member is not suggesting that doctors and members of the legal community would break the obligations around confidentiality to their patients and clients that they swear to upon taking those offices and are required to fulfill under different pieces of legislation.

This matter, clause 28, is a very simple clause and very similar to matters in other jurisdictions. We have discussed this matter at some great length, and I would encourage the members to engage in debate on the further clauses of this legislation.

Mr. Mitchell:    In response to what the minister has just said, we are engaging in debate. It happens to be we are debating a particular clause, and we’ll debate it until we hear answers that we think are satisfactory to explaining or responding to the questions we raise.

The minister has suggested that he would hope we would not be questioning the judgement that would be used by physicians, for example. I can’t use the adjective behind the word “shot” that the minister is taking. The minister can fill in the blanks for himself.

First of all, the minister well knows that doctors take an oath and are dealing with confidential matters on a regular basis, based on the oath they take. That’s not what we were implying, and the minister should not worry about it or imply that we might be.

The wording of subclause (4) does end saying  “… any community group or person with an interest in the child that the director thinks should be notified.” Those are very broad words and are not necessarily referring to professionals. They can refer to anybody in the community. Those people may then have access to very personal and private information. That’s the nature of the question we are asking and the nature of the concern that was expressed by the current Information and Privacy Commissioner.

I want to point out for the minister that these are not questions we developed on our own when reading the act, because we’re not legal scholars, as the minister would no doubt love to point out. These are questions we’re asking because of the letter the Hon. Speaker tabled in this House last Thursday from Yukon’s Ombudsman and Information and Privacy Commissioner.

That letter, which was very well laid out, raised some specific questions and we’re looking for answers. We’re not looking for the minister’s assurances that he has every confidence the officials have thought of these concerns prior to receiving the letter. We’re looking for answers, but we’re not getting answers. We’re getting entreaties to carry forward debate from the same minister who sat here for the last 15 minutes of Thursday afternoon, saying, “Clear”, and not having debate.

The minister compared Bill No. 50, which is before us, with British Columbia’s legislation. I don’t have in front of me the number of their act that he referred to, but the minister did refer to it.

I took the opportunity to have some discussions over the past few days with the Privacy Commissioner, unlike the minister, who found it difficult to have discussions with officials on various matters. She indicated to me that you cannot compare one clause in one act with one clause in another; you have to look at the acts as a whole. In her opinion, British Columbia’s act made the provisions she is concerned about elsewhere, and ours did not, by the wording.

In other words, you can’t cherry-pick, Mr. Chair. One clause impacts on another and so, if you are not going to copy whole lists from another act but use portions of one act from one jurisdiction and portions of another act from another jurisdiction and write some more of it within Yukon, you may have unintended results.

The Privacy Commissioner also pointed out that, well-intentioned though the officials in the department are, and the officials who drafted the bill — and she has a very good working relationship with them — they are looking through this with a different lens. Her lens, her expertise, is that of a privacy commissioner and ombudsman, and that is the lens she uses in testing, so to speak, various clauses in the act.

In this case there may be too much power in the hands of the director, which could impact on the security of the private information of individuals.

I am going to try another approach with the minister, because he has not answered the questions to our satisfaction in clause 28.

Amendment proposed

Mr. Mitchell:    I move

THAT Bill No. 50, entitled Child and Family Services Act, be amended after clause 28 at page 32 immediately after the heading, “Division 2 – How Children Are Protected” by inserting a new clause numbered 29 and renumbering all subsequent clauses so as to read:

“That for greater certainty, nothing in this act shall be construed so as to affect any provision of the Ombudsman Act.”

Chair:   It has been moved by Mr. Mitchell

THAT Bill No. 50, entitled Child and Family Services Act, be amended after clause 28 at page 32 immediately after the heading, “Division 2 – How Children Are Protected” by inserting a new clause numbered 29 and renumbering all subsequent clauses so as to read:

“That for greater certainty, nothing in this act shall be construed so as to affect any provision of the Ombudsman Act.”

Mr. Mitchell:    I am not going to spend a great deal of time explaining this. I think it’s self-evident, based on the debate here this afternoon, why I have asked that the act be amended in this manner. I will use an example. If members will turn to page 18 of Bill No. 50, the top of the page, which is the very end of a section prior to Part 2, there is a heading that says “Does not affect self-government agreements”.

“5 For greater certainty, nothing in this Act shall be construed so as to affect any provision of a self-government agreement.”

This is much in the same spirit as that; it’s to provide clarity to ensure that this act will not be interpreted as superseding the Ombudsman Act. This would address some of the concerns that the Ombudsman provided in her letter.

I will point out that, when we were working on drafting this, we did contact the Ombudsman, thinking that perhaps it should say “of the ATIPP act” — which would have seemed logical to me — but the Ombudsman assured us that it would be better to say “of the Ombudsman Act” in this particular clause to be between existing clause 28 and previously numbered clause 29.

So, again, it would clarify that powers aren’t being given to the director to override the Ombudsman Act. What we are seeking here is clarity, and this would go a long way toward alleviating some of these concerns.

Hon. Mr. Cathers:   The member is wrong. This provision would change it from the standard of child welfare legislation in this country. I realize — and I am trying to be patient with the member opposite — that he does not have a knowledge of child welfare legislation, and he does not have the same access to those who do, as I do as the minister responsible.

To accept the member’s amendment would be a significant departure from the standard procedures. What the member is saying — and it’s unfortunate that he’s taking this approach — I would again point out regarding the provisions around information, protection of privacy, access to information, et cetera, whether it is under the discretion of the Ombudsman and Privacy Commissioner, or under the discretion of the director of family and children’s services or the director of a First Nation service authority, those individuals are in positions of trust. They have a legal and moral obligation and they take on that responsibility to fulfill the roles and their duties. There are others in society in different roles, such as judges, who take on specific responsibilities, legal obligations and positions of trust.

If the member would read through the legislation, the member will also understand that the director of family and children’s services or the director of a First Nation service authority is one of those positions within government that is set up with responsibilities and discretions that are placed at that level by law. They are not decisions made by the minister or by Cabinet in the course of operations. By law, those matters are placed in the obligations of these individuals who have these significant positions of trust. I have faith that these individuals do their job.

I have to remind the member, with regard to his change, it may seem fine while drafting it on the back of a napkin, but this would be a departure from the standard for child welfare legislation across the country, which vests this authority and responsibility in the director of family and children’s services or their counterpart. These individuals are the ones who have the legal responsibility.

I would point out to the member that in certain areas, these are matters of law enforcement under the director’s authority. These matters and the trust that is placed in them — they are the ones who have the information. Some of this information is highly sensitive and in some cases, confidential matters that may affect the safety of individuals. For very good reason, it is kept confidential and not widely shared because, the more widely it is shared, the more the potential for an error and someone’s safety to be compromised and their life to be endangered.

So the member’s amendment that he proposes would be bad policy. It is a bad departure from the standard for child welfare legislation. I appreciate his concerns, but I point out that I have confidence, unlike the member opposite, that the director of family and children’s services fulfills her obligations and that the director of any First Nation service authority would follow their legal obligations in exercising these matters.

Mr. Mitchell:    I think the minister has completely missed the point. It is not the director of family and children’s services we are concerned about here. Yes, we too have confidence that the director will be using her/his best judgement in revealing private and confidential information to third parties. However, once that information has been provided to a third party, under clause 28(4), there is a loss of control by the director at that point, because third parties who may not be subject to the act may be in possession of it.

The purpose of the proposed amendment is to ensure that any person who then receives that information has recourse under the Ombudsman Act to make certain that their information will continue to be protected under existing statute and that they will have recourse, if necessary, to the ombudsman — that it will still apply. That was the purpose of it, not to question the judgement of either the present or any future direction.

This act gives the director a fair bit of power and discretion. The minister says that it is vastly reduced, in his opinion, from the predecessor legislation. Others feel that it may still be very extensive and perhaps too extensive. Our concern here is also what happens once information has been disseminated. That is the purpose of the amendment, to make sure that this has been clarified.

I’m hoping that the minister will, as he says, “Mend the error of his ways,” and not be questioning our confidence in any public officials, just because we ask questions.

Chair:   Is there any further debate on this amendment?  Shall this amendment carry?

Some Hon. Members:   Disagree.

Count

Chair:   Count has been called.

Bells

Chair:   Order please.

It has been moved by Mr. Mitchell

THAT Bill No. 50, entitled Child and Family Services Act, be amended after clause 28 at page 32 immediately after the heading, “Division 2 – How Children Are Protected” by inserting a new clause numbered 29 and renumbering all subsequent clauses so as to read:

“That for greater certainty, nothing in this act shall be construed so as to affect any provision of the Ombudsman Act.”

Would all those in favour please rise.

Members rise

Chair:   Would all those opposed please rise.

Members rise

Chair:   The results are six yea, nine nay.

Amendment to Clause 28 negatived

Chair:   Is there any further debate on clause 28?

Clause 28 agreed to

On Clause 29

Clause 29 agreed to

On Clause 30

Clause 30 agreed to

On Clause 31

Mr. Edzerza:    We think the act should be improved by amending the subclause to say, “…the director or peace officer should make all reasonable efforts to locate the person or persons with custody of the child.” That would recognize that it is not always a parent who has custody.

However, since the minister had made it clear that he won’t listen to any suggestions from this side, I will just leave this idea with him to consider.

Hon. Mr. Cathers:   What I can provide comfort on to the member opposite is, if he looks at the definitions, he will see that the definition of parent includes someone other than the mother or father. It includes a person to whom custody of a child has been granted by a court of competent jurisdiction or by an agreement. It also includes a person with whom a child resides and who stands in place of the child’s mother or father. Therefore, the amendment that the member suggested but did not formally propose would be unnecessary. I trust that will address the member’s concern, as the requirement of which he spoke is already in place.

Clause 31 agreed to

On Clause 32

Clause 32 agreed to

On Clause 33

Mr. Mitchell:     I have a question for the minister regarding clause 33(1), which says:

“Despite the Care Consent Act, a director may apply to a judge for an order under this section if

“(a) in the opinion of two health care providers, it is necessary to provide health care to a child to preserve the child’s life, prevent serious physical or mental harm, or alleviate severe pain; and

“(b) no one is able or available to consent to the health care…”

My question is this: has the minister had the Department of Justice look into the implications of this in terms of potentially coming into conflict with some religious beliefs? I don’t want to get into a great deal of detail — we’ve seen court cases with, for example, blood transfusions and such. I am simply asking the question: what opinions has the minister sought in drafting this particular clause, just to ensure that it is not subject to challenge?

Hon. Mr. Cathers:   With regard to the concerns of the member, of course, as I believe he himself noted in the reference, a judge must make the determination of the section. It does allow for an order to be applied, but as far as conflict with certain religious beliefs, I think the member is referring to a specific court case in the Province of British Columbia. Such a thing, subject to a judge’s determination, could lead to the potential for a judge to make a similar finding — that despite religious beliefs of the parents, it was in the best interests of the child and, if it were a requirement in saving a child’s life, such action could be taken. That would require a judicial order and it does give that power to the court.

Chair:   Is there any further debate on clause 33?

Clause 33 agreed to

On Clause 34

Clause 34 agreed to

On Clause 35

Clause 35 agreed to

On Clause 36

Clause 36 agreed to

On Clause 37

Clause 37 agreed to

On Clause 38

Mr. Mitchell:    This has to do with the warrants to bring a child into care. In clause 38(1) it says, “If a director or peace officer has reasonable grounds to believe that a child is in need of protective intervention, the director or peace officer may apply to a judge for a warrant to authorize bringing the child into the care of the director.”

In 38(2), it says, “The application for the warrant may be made without notice to any person.”

We’ve had a fair bit of discussion already within debate on this bill over clauses where time is truly of the essence and clauses where there may be sufficient time to also notify the appropriate First Nation.

If there is an application for warrant being made, there is at least some degree of time available, rather than in the following clause, clause 39, where they may even do it without a warrant because time is of the essence.

Amendment proposed

Mr. Mitchell:    Considering all the debate we’ve had around this, I move

THAT Bill No. 50, entitled Child and Family Services Act, be amended in clause 38(2) at page 38 by deleting the clause and replacing it with: “The application for the warrant shall be made with notice to the appropriate First Nation where the child is a member of the First Nation.”

Chair:   It has been moved by Mr. Mitchell

THAT Bill No. 50, entitled Child and Family Services Act, be amended in clause 38(2) at page 38 by deleting the clause and replacing it with: “The application for the warrant shall be made with notice to the appropriate First Nation where the child is a member of the First Nation.”

Is there any debate on the amendment?

Mr. Mitchell:    I just want to speak to it for a minute or two, Mr. Chair.

The reason I am moving this amendment is because of the input we’ve had from First Nations about how they place such large importance on notification of the First Nation so they have the opportunity, if they feel it would be beneficial to the child, to appear in front of any court proceedings, and so they are aware this process will become imminently underway.

I have looked at this bill and, when we get to the next clause — and I know we are not at that clause yet, Mr. Chair, but if you would just indulge me, so I can point out the difference — clause 39 says, “If a director or peace officer has reasonable grounds to believe that the life, safety or health of a child is in immediate danger…” That speaks to the immediacy of the danger and, therefore, notification becomes something that one would not spend the time doing at clause 39, because the immediate danger to the child is of utmost, paramount importance.

In clause 38, the wording is quite different. It says, “…has reasonable grounds to believe that a child is in need of protective intervention…” It does not speak to life, safety or health. Therefore, we feel that in this case there is a warrant that will be sought and it would be appropriate to notify the First Nation, as is the spirit — from what we have been told — of this bill. That’s why I moved that it be amended to say that’s what will happen, rather than it being without notice to any person.

Hon. Mr. Cathers:   I understand the member’s objective and, purely in theory, if one does not have an understanding of legal provisions and standards, I would not disagree with him. However, what the member is missing — and I am trying to say this, Mr. Chair, with due respect to the Leader of the Liberal Party. I think that he is trying to bring forward a valuable amendment. The problem with that — in reading the plain English of the bill in clauses 38 and 39 without understanding the case law around such matters, it would appear that clause 39 provides a reasonable ability for a director to act under emergency circumstances. However, what the member is missing, without understanding the case law around such matters, is that this ability is very similar to the ability that an RCMP officer has to enter a dwelling without a warrant in very specific circumstances.

An extremely high standard is applied to such matters because the rights against unreasonable search and seizure and entering without a warrant are very key rights within our constitutional system.

What the member is missing with that is that executing the action under clause 39 would have to be to an extremely high standard. There is a very high standard of proof that must be applied that might not address all matters, because there is some risk to the official or officer acting under such a clause — both in this legislation or for an RCMP officer under the Criminal Code — and they place themselves at some personal risk because of that extremely high standard and because of the very fundamental issue of the type of right that is being described. It is something that they would only do in the rarest of circumstances.

What is becoming more common in child protection matters and in other matters for police officers is the application using modern technology for a telewarrant — a warrant typically through telephone or through measures such as a fax machine. This ability is what is envisioned in clause 38 — allowing that ability as is common and current practice to allow an individual in a case where it is clear that immediate action must be taken but it is questionable or a greyer area of whether the very dire step of entering without a warrant would be fully justifiable. As I pointed out, there is some risk to that official for taking that very severe step.

The amendment proposed by the member opposite would limit some situations where a telewarrant is urgently necessary.

In practice, the First Nation is usually involved in discussion already. That involvement would be strengthened and affirmed by provisions in the act, such as the guiding principles. In practice, they are typically involved prior to a decision to execute a warrant. Usually the case that requires the execution of a warrant is not the first involvement the system has with that family and with that child. Even if it were the first involvement, again, in most cases, already to date, and further strengthened through the provisions of this act, typically the First Nation is informed, and typically they will be informed prior to the execution of a warrant.

I point out that the guiding principles, particularly under clause 2(j), place an obligation to involve the First Nations in decision-making processes regarding a child who is a member of a First Nation “as early as practicable”. That is the wording that applies.

I think the member’s concern is that an official might simply choose not to inform the First Nation. I would point out to the member that if a First Nation wished to challenge the process that was followed, if there was ample time to inform a First Nation and the First Nation is not informed, under the “Guiding principles”, which take precedence over this clause of the act, the First Nation could challenge that, in fact, the director had not involved First Nations as early as was practicable to do so in the decision-making process, so it potentially would be subject to a court challenge in such a circumstance. I don’t disagree with what I think is the basic principle the member is trying to get at; however, it would, as I point out, restrict the ability to execute a telephone warrant under urgent circumstances. I reiterate that the guiding principles make it very clear that if it is practicable or if there were reasonable opportunity, in laymen’s terms, to involve the First Nation prior to the execution of that warrant, that must take place.

I trust the member’s concerns will be addressed by that. I hope they will be, but for that reason we cannot support the amendment proposed by the Member for Copperbelt, the Leader of the Liberal Party.

Mr. Mitchell:    I thank the minister for his explanation and his understanding of our reasoning for proposing this amendment. I tend to agree with him that we’re not that far apart on the issue, other than the fact that he stands in support of not making this amendment to the bill and, obviously, having moved it, I’m taking the other position.

He does refer to 2(j) in the guiding principles. Of course, 2(j) goes back to those somewhat troublesome words “whenever practicable First Nations should be involved as early as practicable in decision-making processes regarding a child who is a member of the First Nation.” We get into this very subjective grey area of what we mean by “practicable”.

In the minister’s explanation for why he couldn’t support the amendment, he noted that, in many cases — I think he said “in most” — the First Nation is already involved although obviously, if it were a first-time complaint that led to this, they would not have been previously involved. The concern we have is in those cases where the First Nation hasn’t been involved and, even when they’ve been previously involved, without notification they will not know that now a warrant being sought.

I can’t agree with the minister’s reasoning on this. I will say, of course, the minister is right that we don’t have access to all the experts within the department or to case law provided by lawyers, but we have had access to meetings with an attorney who is acting for five Yukon First Nations. This is one of the sections she found very troublesome as well, so we’re not just pulling this out of thin air. As the Chair might say if he were ruling on something, “This is truly a dispute among members.” In this case, we think there’s a reason for moving this, so I hope that all members will give it careful consideration and support this amendment so we can satisfy the First Nations that we are truly going the full nine yards in trying to be inclusive of their concerns and the cultural priorities they want to make sure are supported when someone goes to execute such a warrant.

I previously noted in debate that I was told by the chief of one of the First Nations that he was called very late in the day and rushed down to a court proceeding. The people involved apologized to him after the fact, so the current system is certainly not without its flaws. That’s why we thought it would be better to ensure the First Nation is notified.

Hon. Mr. Cathers:   To answer the member’s concerns and the concerns that First Nations and others may have around this, I point to clause 2(j) under “Guiding principles” that there is a requirement to involve a First Nation in decision-making as soon as this is practicable. I would point out to the members that although the definition of “practicable” may not provide as much detail as they would think should be included in the legislation, if legislation is too prescriptive instead of implementing it as a principle as this does, it in fact has the result of limiting the extent of that involvement.

This expresses, as a guiding principle, how the legislation must be interpreted, how its operations must be interpreted, and the requirement to involve First Nations in decision-making regarding a citizen of that First Nation as early as practicable to do so.

I point out to the member opposite that if a First Nation felt that indeed there was ample time to inform them and that did not occur, and the government or a First Nation service authority was not living up to its legal obligations, they would — if those matters could not be resolved through discussion — have recourse in the court to argue that those legal obligations were not being followed.

The principle is very clearly stated that First Nations must be involved as early as is practicable, and therefore, I have to express the very strong opinion that, while appreciating the member’s intention, this amendment would have a negative impact on the act by reducing the situations in which telewarrants could be urgently executed. I would rather have the judge able to exercise that discretion.

 I would also note for the member the fact that because the legislation clearly states under clause 2(j) the requirement to involve a First Nation as early as practicable, a judge would and will have the discretion of asking the individual applying for the warrant whether the First Nation was involved. 

If the judge felt there was not ample evidence that this clause required action without further delay, then the judge could require that individual to contact the First Nation or others they felt necessary, prior to the judge approving that application for a warrant.

Again, there is control — because a warrant is issued by a judge, a judge would clearly have the ability to look at the “Guiding principles” and make the determination — if they felt it appropriate that the director of family and children’s services or the director of a First Nation service authority had not fulfilled the obligation to involve a First Nation in decision-making as early as was practicable to do so.

Mr. Edzerza:   Mr. Chair, I would just like to put a couple of comments on record here with regard to this issue, because the minister appears to really downplay the concerns First Nations have with wording like this. “As early as is practicable” — I think the minister would probably be singing a different song if he had to deal with an act that is written like this. I know from experience over the years that First Nations have had nightmares about wording in acts, and it is because of phrases like this one: “early as is practicable” or “the director may” — those kinds of words.

The only time you realize the power of those words is when you as an individual have to deal with the director or deal with an apprehension of one of your children or grandchildren. Only then do you know the power of these kinds of words. Probably the minister will never experience that in his lifetime. Everyone else who may be engaged with this act at one point or another will be the ones who have to deal with it.

Hon. Mr. Cathers:   I think I have addressed the concerns brought forward by the Member for McIntyre-Takhini. I think I have addressed them in past debates, so I won’t spend a lot of time on that.

 The member suggested I was downplaying First Nations’ concerns, and that is certainly not my intention. What I am attempting to do is provide the clarity to members with the explanation of the legal provisions around this, the safeguards that are put in place through judicial processes, among others, and through the new “Guiding principles” and “Service delivery principles” that occur in this legislation and are not in its predecessor, the Children’s Act. Those “Guiding principles” provide a clear lens within which the legislation must be viewed to provide clarity and will provide guidance to a judge, should it ultimately get to a court case, on how this legislation must be viewed.

However, I point out to members that there are significant provisions, particularly in part 2 of the act, that are aimed at reaching agreements through voluntary processes such as cooperative planning and alternative dispute resolution.

In answer to the Member for McIntyre-Takhini, I appreciate that he has significant concerns with the act, and the importance that such provisions have, and his references to experiences and involvement in such matters.

I point out that we have the greatest respect for the concerns of all and the opinions of everyone regarding this legislation, but at the end of the day, we have followed an excellent process. There has been tremendous involvement and it is very important that we move forward with legislation that is a significant improvement over its predecessor, the Children’s Act.

This legislation will do far more involving First Nations, involving extended families and in addressing the interest of the child through cooperative planning and alternative dispute resolution processes.

Chair:   Is there any further debate on this amendment?

Shall this amendment carry?

Some Hon. Members:   Disagree.

Count

Chair:   Count has been called.

Bells

Chair:   Would all those in favour please rise.

Members rise

Chair:   Would all those opposed please rise.

Members rise

Chair:   The results are five yea, nine nay.

Amendment to Clause 38 negatived

Chair:   Is there any further debate on clause 38?

Clause 38 agreed to

On Clause 39

Mr. Mitchell:    I just want to rise in support of clause 39, really for the opposite reasons of what I said about 38. Clause 39(1) speaks to, “If a director or peace officer has reasonable grounds to believe that the life, safety or health of a child is in immediate danger, the director or peace officer may, without a warrant, bring the child into the director’s care.”

As much as one never wants to see warrantless actions taken — meaning without the use of a warrant — they are not warrantless in terms of protecting the safety of the child, so we recognize the reason for clause 39 and we support it in the interest of the child.

Chair:   Is there any further debate on clause 39?

Clause 39 agreed to

On Clause 40

Clause 40 agreed to

On Clause 41

Mr. Mitchell:    We just want to point out that, considering that clause 41 speaks to, “If a child has been brought into the care of a director under sections 38 or 39, the director shall make all reasonable efforts to notify as soon as practicable (a) the child’s parents; and (b) if the child is a member of a First Nation, the child’s First Nation.”

Once again, this is notification after the fact, and that relates to the points that we have been trying to make all along — while 2(j) speaks to the earliest moment practicable, in this case, it is after the fact.

Hon. Mr. Cathers:   The member does not understand the provision. What this makes clear — I would go back and note to the member opposite previous debate we had some days ago; I believe it was in general debate on this legislation. In some cases, there may be a situation where action must be taken for the safety of a child. Its in situations where the child’s parents are not in the area, not available, or perhaps not known — and the identity of the child may not be known, particularly with a young child — and further, if the identity of a child is not known, the connection to a First Nation — and which First Nation the child is a member of — may not be known.

What this clause does is provide further certainty that, if the situation occurs when a child is brought into care, and a First Nation has not been involved