Legislative Session: Fourth Session, 39th Parliament
COMMITTEE A BLUES
This is a DRAFT TRANSCRIPT ONLY of debate in one sitting of the Legislative Assembly of British Columbia. This transcript is subject to corrections, and will be replaced by the final, official Hansard report. Use of this transcript, other than in the legislative precinct, is not protected by parliamentary privilege, and public attribution of any of the debate as transcribed here could entail legal liability.
PROCEEDINGS IN THE
DOUGLAS FIR ROOM
Committee of the Whole House
BIll 37 — ANimal Health Act
The House in Committee of the Whole (Section A) on Bill 37; D. Black in the chair.
The committee met at 2:39 p.m.
On section 3 (continued).
L. Popham: We're on section 3, "Must not cause disease." Again, I'll just review: "A person responsible for an animal must not, in engaging in animal management or, if applicable, a regulated activity, act in a manner that the person knows, or ought to know, (a) will cause, or will likely cause, conditions that contribute to (i) the presence of a notifiable or reportable disease…."
Does E. coli fall under one of those — notifiable or reportable?
Hon. D. McRae: In reference to a specific E. coli disease, I guess, E. coli 0157:H7, which is a type of E. coli that spreads from animals to humans…. An example could be perhaps if an individual was at a petting zoo, and they were petting animals there. It is something we could possibly consider. It is under consideration by the chief veterinarian officer, and he will make his recommendations when he sees fit.
L. Popham: I guess I'm considering more the E. coli strain that would be found in feedlots, for cattle. It's known that in large feedlots where there are thousands of heads of cattle waiting for slaughter, the conditions that they live…. They're often deep in excrement and urine and water, where E. coli levels are quite high. If you tested it, there would be E. coli. I don't know the strain, but I know that that's there. There is a risk, because if that would transfer into the meat through slaughtering the animals, that can make humans sick.
So are the practices of feedlots and the standards of feedlots being considered when we look at section 3?
Hon. D. McRae: In this section, section 3, E. coli is not, at this stage, notifiable or reportable. It would not, basically, cause this part of the piece of legislation to come into effect.
L. Popham: How is it decided what's notifiable or reportable?
Hon. D. McRae: Again, to the member opposite, the decisions will be based on science and whether there is a threat to human or animal life. That would be a distinction made by the chief veterinarian. We would listen to his recommendations; I am without doubt.
L. Popham: I understand what the minister is saying, but for me right now we're passing legislation. Section 3, the heading is: "Must not cause disease." It talks about the way we manage animals. We're talking about animals that are used to go into the human food system. Why is the legislation not more clear? It seems quite arbitrary.
Hon. D. McRae: My science lesson continues. I want to wash my hands after this, but I've been informed by the chief veterinarian that E. coli pretty much exists everywhere. There's a good chance it's on my hands right now. I guess I'll get some gel later. But the reality is: this section of the bill is dealing with notifiable or reportable diseases, and at this stage, E. coli is neither.
L. Popham: I understand that, but given that we know…. I understand that E. coli is everywhere as well, but the levels of E. coli in a place like a feedlot are very high. I don't think there's science against science there.
I think the science says that the levels are high, and there are practices that can be done that take the risk down, in between the cattle standing in the feedlot to the point where the product gets to our plates. Because we're talking about legislation, and we're passing legislation around "Must not cause disease," I'm just curious: why is the minister not adding a list of notifiable or reportable diseases? Why are we doing this at a later stage?
There have been a lot of comments through the…. We haven't gotten very far in this bill, but there is a theme that we're taking precautions for the future. I think this is a situation that we know is happening right now. I don't understand why it's different in this circumstance than in prior sections, where we're making rules for all animals on the planet. This is a situation that's actually occurring.
Hon. D. McRae: E. coli is not causing significant disease on the feedlots right now. It does exist everywhere. However, if things were to change, a nice thing about this act is we have the ability — not through legislation, but again, being forward-thinking — to react quickly through regulation, making sure that animal health and, by relationship, human health are protected.
Section 3 approved.
On section 4.
M. Sather: Section 4, under "Duty to train and equip," says: "(2) A person responsible for an animal must ensure that the person's employees are adequately trained and sufficiently equipped to (a) prevent, to the extent reasonably possible, the presence, transmission or spread of notifiable and reportable diseases…."
But the phrase "to the extent reasonably possible" would, I think, be a lawyer's dream. What is "reasonably possible"? Wouldn't it be much more effective to take out that phrase from the section?
Hon. D. McRae: Again, it refers back to some legalese and not quite the equivalent of my favourite things. But it does come down to…. It allows for discretion.
The other thing about using the term "reasonably possible" — again, it does allow for some forward thinking. We're also planning for issues that we have not thought of yet in the year 2012. Potentially, perhaps if more understanding comes or a new disease were to come or new protocols were to be developed, it allows the employer, down the road, to make sure their employees are trained.
But "reasonable" is a legal term. It's one that is significantly used in many, many pieces of legislation and one that the courts would recognize.
Sections 4 and 5 approved.
On section 6.
L. Popham: Section 6, "Must comply with veterinary advice." When I was reading through this it occurred to me that the owner effectively loses control of the animal once the provincial vet makes a decision over that animal, if there is a disease. But the owner of the animal must still pay for the prescribed treatments that the provincial vet would prescribe.
I guess my question is: can the person who owns the animal get a second opinion, other than the opinion of the provincial vet?
Hon. D. McRae: I guess we'll do the scenario walkthrough. If person X was to take their animal to a vet…. Vets are very well trained. We're very lucky in British Columbia to have an amazing group of veterinarians. They wouldn't just look the animal in the eye and make the diagnosis. I'm sure they would want to do a bit more than that. They would want to run tests. They would want to, perhaps, have the animal under observation, and then make a diagnosis, basing it on science.
If the person then decided they did not like that diagnosis, they may be able to go to vet No. 2 and go through the same process. Vet No. 1, who made the first, I guess, diagnosis and didn't feel they were being complied with could forward a recommendation to the chief veterinarian officer, and then that person would have to act at the end of it as an arbiter. We would have two vets, and the chief veterinarian officer would be the top of the vet pile.
L. Popham: So if — not the provincial vet — a different veterinarian were to make a recommendation, and the owner felt that they didn't agree with that, I don't see any provisions that allows them to challenge the decision of the vet.
Hon. D. McRae: That's right. Again, that would be the role of the chief veterinarian officer of the province of British Columbia — to examine the evidence and also the diagnosis as it were to go through.
L. Popham: So the owner would have no way of challenging that opinion?
Hon. D. McRae: The assumption would be that if the animal is ill, there would be test results, diagnosis that does show the animal is ill. It's not based on a gut feeling.
L. Popham: So can the minister tell me: if the provincial vet made that decision but was found to be in error, where do we go in that case?
Hon. D. McRae: I'm just going to again use a scenario, if I may. I'll say my cat has, potentially, TB. So what happens is I take it to vet A. Vet A does a swab. The swab is in error; it comes back positive. Obviously, action must be taken. Then it would go to the chief veterinarian officer. In this case, he would again do tests.
If, in theory, again the tests were done in error so that we had two false positives of TB, and the owner — myself — of the cat did not believe that the two tests, though they were not related, were correct, they could go to a third, further step and apply for a judicial review. My able colleague tells me that not complying with section 6 is also an offence. You must listen to the advice of the veterinarian officer, both the veterinarian that you may visit on the first visit and the chief veterinarian officer.
L. Popham: Where does it point out that the owner of the animal can get a second opinion from another vet?
Hon. D. McRae: There's nothing in this piece of legislation that says you cannot get a second opinion. Regardless, there will be two opinions in this TB scenario anyway, but if you want a third opinion by going to vet X, you may do that as well.
L. Popham: If someone were to, under this act, request a second opinion, that would not be challenged?
Hon. D. McRae: If the disease is a reportable, notifiable disease, and it goes to vet A, then if it is tested positive, whether it's fair or not, it would be recommended to the chief veterinarian officer to react accordingly.
If there were a scenario where the cat has the sniffles — and I don't take that in a light manner — you would be able to get a second opinion. But if it is a reportable disease, you would need to forward that information to the chief veterinarian, and the officer in that position would have to react quickly to protect animal health and human health.
L. Popham: But as I read it, you have to comply under section 5(1), so I don't understand how you would be allowed to get a second opinion.
Hon. D. McRae: What could occur is that an animal comes in to a vet, and the vet does believe that the disease that is perhaps there is reportable, does tests and says to the owner: "This animal must now be kept in isolation." It turns out that the individual has no interest to do so or is misleading the vet. The veterinarian has no other option but to inform the chief veterinarian officer. However, if the animal is told to be kept in isolation, there is nothing stopping the owner of that animal to get a secondary opinion as long as the animal still remains in isolation.
Section 6 approved.
On section 7.
M. Sather: Section 7 says: "Except with the permission and in accordance with the instructions of an inspector, a person must not keep or deal with, in British Columbia, an animal that (a) was imported into British Columbia." This seems to exclude all domestic animals that were not imported into B.C. So for chinook farm salmon, for example, which are native to the province, if they get a disease like ISAV, are they then exempt from this section?
Hon. D. McRae: You may wish to come back with another example. My understanding is with farmed chinook, the broodstock and the eggs are actually not imported. They're actually coming from British Columbia, as compared to maybe other animals or species.
M. Sather: Well, my point was that this section only applies, as I read it, to an animal that was imported into British Columbia. What I'm saying, then, is that since the chinook are not imported — I think that's what the minister said, also, in the case of the farm fish — they're not subject to this section?
Hon. D. McRae: I'm going to use my example here of importing a racehorse from somewhere south of Canada. If you are trying to import a horse, importation rules are done with the federal government, and it is their jurisdiction as well as the CFIA. British Columbia does not have the right to restrict trade in that manner, but we do have the right, if we were to think that this particular horse was not healthy and posed a risk both to humans and to animals in British Columbia…. We can restrict the person's ability to own or care for that horse.
It is just an extra layer of security we could add to the level without actually stepping on the jurisdiction of the federal government, which does govern the trade issue.
M. Sather: The vast majority of farmed Atlantic salmon were born here in British Columbia in hatcheries. Only a slim minority were imported as eggs. It doesn't seem that for those fish there's any protective value in this section. Can the minister comment on that?
Hon. D. McRae: The member opposite is right. This is about animals that are being imported into Canada, not dealing with particular animals that are already here.
M. Sather: Is there another section of the bill that does deal in this manner with animals that are domestic?
Hon. D. McRae: By all means, the rest of the act is about animals and protecting them from reportable or notifiable diseases.
Section 7 approved.
On section 8.
M. Sather: The subject of the section 8 is "Must not slaughter, destroy or dispose of affected or harmful things." Can the minister define what "things" means? No, I'm just joking.
On this one, which is of interest… It's only concerned, this section, with the disposal of fish parts, for example, which one may have reason to believe are affected by a notifiable disease. But 60 percent of sampled dead fish at farms for the provincial fish health monitoring program go undiagnosed, according to transcripts from the Cohen Commission.
This means that 60 percent die from some reason, but due to the limited ability of B.C. vets to be able to…. They can't definitively diagnose what this 60 percent of the fish die from. So can I assume, then, that anything that's not definitively diagnosed according to this regulation can be discarded?
Hon. D. McRae: To the member opposite, 60 percent does sound like a lot of fish. It could be a lot of fish — unless, of course, you're dealing with seven dead fish, and then 60 percent would be four. It all depends. If we're dealing with thousands of fish dying, in that particular case, then I think there would be an opportunity to find disease, by all means.
When fish are found dead, they are tested. If a disease is found, if it is reportable or notifiable, then it is acted accordingly. If there is no known cause — sometimes fish die for a various number of reasons; maybe they just have a genetic defect or something like that, or maybe another bigger fish in the pond didn't like them — the reality is that they are then disposed of.
M. Sather: Again, this section only refers to reportable and notifiable diseases. Again, we feel that pathogens should be included.
Also, this regulation pays really no attention to the effects of these diseases on wild fish. Various pathogens like previously unreported forms of ISAV and piscine reovirus pose huge risks to wild fish, but their protection is ignored in this regulation. So what about the potential effects on wild commercial fisheries and recreational fisheries?
Hon. D. McRae: Again, to member opposite, this is about reacting to notifiable, reportable diseases — diseases that we know of today that will then be put into regulation and reacted to accordingly using science and the expertise of the chief veterinarian officer.
This act also does have the ability to, again, react to diseases that may come in the future and make sure that we protect our wild stock — and, in this case, our farm stock as well — to make sure we have a healthy ecosystem.
Sections 8 to 10 inclusive approved.
On section 11.
L. Popham: Section 11: "Licences and permits." So 11(2)(d) allows the chief vet to "issue a temporary licence or permit with or without…conditions, valid for a period of no more than 3 months." Section 11(2)(e) allows the chief vet to "issue the licence or permit with or without terms and conditions."
My question is: why the need for a temporary licence when a regular licence can be issued for a temporary period? In other words, the authority in 11(2)(e) covers what is permitted in 11(2)(d). It seems like it is just repetition. I'm wondering if maybe it can be streamlined a little bit.
Hon. D. McRae: I see the member's point, but I think what we're also looking for is some ease of action by the chief veterinarian officer. For example, a temporary licence could be used for, say, a one-day event like a 4-H sale. There would be an opportunity there, and it has a very distinct starting time and ending time. While you could argue that (e) could also, with the conditions, because the conditions are rather vague at this stage….
We're talking about when we do craft regs down the road that there is a distinct category. You are asking for a temporary licence, or you're looking for a non-temporary licence permanently.
L. Popham: I understand that, but it seems that these two sections do exactly the same thing, do they not?
Hon. D. McRae: Again, when we do craft the regulation, it does allow us…. Though I will admit that maybe we could survive with one — I think having two isn't going to substantially change this bill — it allows us to make sure there is a clear distinction. Perhaps when we charge fees, or if we were to charge fees for such a licence, there will be a nice easy distinction between temporary and ones that are permanent.
L. Popham: Actually, that's exactly my point. If somebody is applying for a temporary licence or a regular licence for a temporary period, I think it's confusing. Will there be a different fee structure for both? How do you figure out which one pertains to your situation?
I'm not trying to be argumentative, but we have taken so long to update legislation for this act. In this instance I think that if we streamline a little bit and make it a little bit clearer for people who are trying to follow the law in British Columbia, I don't think it's that big of a deal to take a look at maybe bringing this into one line.
Hon. D. McRae: The intent is here. Licences are either intended to be temporary or annual. We want to make sure by having this in here that it is very clear that there will be different, perhaps, costs, as we go forward and through regulation, for a licence that does start at a period of time and then ends very quickly — maybe up to three months; maybe just like I said, one day — compared to ones that are annual or longer term.
L. Popham: If that's the case, then, you could have a temporary licence or perhaps an annual licence. But under…. What I'm reading is that you can have a temporary licence, or you can have an annual licence for a temporary period of time.
Hon. D. McRae: Annual licences will last for a year. Temporary licences can only be extended up to three months and then would have to be, I would assume, reapplied for after that stage.
L. Popham: So what's a temporary regular licence?
Hon. D. McRae: Again, the temporary licence is meant to capture literally temporary events — for example, a one-day sale or perhaps various 4-H auctions that take place over a number of days, maybe five days. We want to make sure that people have the opportunity, especially when we're dealing with a group like the 4-H, to buy a licence that is not going to be as onerous in terms of costs as an annual licence. This is allowing that organization, in this case, to purchase a temporary licence, have the event and move on.
Other circumstances may require an organization or a business to have an annual licence. We want to make sure there is a distinct difference between the two.
M. Sather: So this section is regarding licences or permits to engage in a regulated activity. There are a lot of regulated activities. I'm wondering: would one of these licences, for example, be a licence of occupation for an aquaculture lease?
Hon. D. McRae: The legislation is very clear. Those are under the Land Act, which is under the Ministry of Forests, Lands and Natural Resource Operations, not the Ministry of Agriculture.
M. Sather: The last subsection of this section, subsection (5), says: "A licence or permit is not transferable." Can the minister just explain why they're not transferable? Would there be some situations where it would be, you know, less red tape to have a transferable licence, or is there some solid reason why they can never be transferable?
Hon. D. McRae: I think it's really important that they are not transferable. Just an obvious reason, for example — person X may apply for a licence. They may be an absolutely great individual in terms of animal care and experience. I would hate to have a situation where that licence was then allowed to be transferred to person Y, who is actually a person who is, perhaps, someone who is well known as not being of the same level of care and concern or perhaps has a history of animal abuse. To make sure we protect animals and the general public, I think it's absolutely essential that we do not allow that transfer to occur.
If a transfer were to be needed, licence A would expire and then a person could apply again through this process and, on their own merits — themselves or the organization — and providing they met the tests, they would be allowed to go forward. But I would not want to see an opportunity for someone who is not responsible to be able to have this kind of control over animals.
L. Popham: Can the minister tell me the changes or additions in this section? Do they add any additional costs on to farmers that weren't there under the previous acts?
Hon. D. McRae: Just for the members opposite, the licences that Agriculture does have control over are fur farms, game, hide, livestock dealer, livestock agent and public sale yard. Right now we determine fees through regulation.
Again, this act will allow — maybe in five years, ten years or 20 years, as circumstances change and economies change — that fees could be raised or, potentially, I assume, lowered as we go forward. It does allow us that flexibility to charge a fee for a licence, and we do so now.
Section 11 approved.
On section 12.
L. Popham: Can the minister give an overview of his interpretation of section 12?
Hon. D. McRae: I remember when I looked through this act that I circled it as well. I actually wrote the word "beekeepers" right beside it, and I knew that it would be near and dear. I know, since you know a lot more about bees and you're very passionate about them, I'm not going to sit there and transfer information back and forth. I'm just going to read the information I had prepared going in, in advance. It will be in Hansard soon thereafter.
The Chair: Through the Chair, Minister, please.
Hon. D. McRae: My apologies, Madam Chair.
For the Chair: some operators of regulated activities, such as beekeepers, are not licensed. They are instead registered. The difference is that registration formally enrols an individual as a participant in a regulated activity. A licence confers permission to undertake a regulated activity. An operator may register by submitting to the chief veterinarian, in the form required, registration information and any other prescribed information or fees.
The chief veterinarian may take several steps in reviewing the request for registration, similar to reviewing an application for a licence or permit. These steps include conducting inspections, requesting additional information or records, or referring the application for evaluation to another person having special knowledge.
After reviewing the said registration, the chief veterinarian may confirm the registration by issuing a producer number or refuse to confirm the registration, providing written reasons for doing so. The chief veterinarian also may provide criteria that the person would need to meet to have the registration confirmed. Producer numbers are not transferable.
L. Popham: Is this changing the way that beekeepers are conducting their business now?
Hon. D. McRae: No, not at all.
Sections 12 and 13 approved.
On section 14.
M. Sather: Section 14 is on taking administrative action. Looking at section (4), it says:
"After providing the operator with a reasonable opportunity to respond in accordance with the notice provided under subsection (3) (a), the chief veterinarian may do one or both of the following: (a) delay the date the administrative action is to take effect or suspend the administrative action, if satisfied that the delay or suspension would not be detrimental to (i) animal health, or (ii) public health in relation to diseases that are or may be transmissible from animals to humans."
It seems to me that this provides a lot of opportunities here for leniency, and delaying action in a disease situation means higher risk — if you're looking at aquaculture again, for example — of dispersing disease particles to other farms and wild fish and humans.
Does the minister agree that there's…? Well, can he comment on it? I don't expect he's going to agree with it. Can he comment on the proposition that this gives too much discretion to one person, the chief veterinarian?
Hon. D. McRae: This section is referring to licensing, not disease control. An example, though, might be that perhaps a person is reapplying for their annual licence. The annual licence comes due. Perhaps a piece of paper was not submitted in time, or it was omitted by error. Instead of having operations cease, the discretion by the chief veterinarian could say: "You must get said information in by this period. Otherwise, we'll take action." There is a level, I would hope, of common sense and discretion applied here.
M. Sather: In subsection (4)(b) it says: "after considering the operator's response, if any, and any supporting records or written submissions of the operator, (i) take the proposed administrative action, (ii) take a different administrative action, or (iii) rescind the notice and take no administrative action." It seems that there should be some timelines on here. It seems awfully loosey-goosey. In the end, they may not have to take any administrative action at all. There may be no administrative action taken. Could the minister comment on that?
Hon. D. McRae: We're just trying to be as reasonable as common sense would allow. I can assure the member opposite that there is no jiggery-pokery involved in this particular instance.
M. Sather: Well, I'm overjoyed to hear that, as will be the member for Cowichan Valley.
Notwithstanding the lack of jiggery-pokery, I did want to ask the minister: with regard to fish farms, I hear complaints about a lack of action, a lack of administrative action. Can the minister comment on how he sees the record of administrative actions with regard to fish farms?
Hon. D. McRae: With all due respect to the member opposite, the provincial government does not license fish farms. That is a federal responsibility. Tenure does fall under FLNRO, but this act does not deal with that particular issue. I don't feel I have the expertise to comment on the federal licensing process, because I've not been involved in that.
M. Sather: Okay. The minister mentioned earlier, I believe, that it was under Lands that the tenures are granted. What kind of licensing is he talking about that the province is not responsible for?
Hon. D. McRae: Under this act, we are responsible for the licensing of fur farms; game, hide, livestock dealerships; livestock agents; and public sale yard. We are not responsible for occupation of a fish farm. That is a federal government responsibility. Land tenure, again, is the purview of a different act, under FLNRO.
M. Sather: Yeah. I just wanted to ask the minister…. He mentioned earlier today about further agreements that may be happening with regard to fish farms, between the federal government or the Canadian Food Inspection Agency, perhaps, and the province. Does he foresee the possibility of the licensing part that is now a federal responsibility becoming provincial?
Hon. D. McRae: I think any comment on that would be pure speculation on my part, and I would hate to have my speculation on record.
This act is about animal health. Right now because of the Hinkson decision, 2010, the responsibility for those issues that the member opposite refers to is currently under the federal government. I don't see it changing.
M. Sather: So when the veterinarian — Dr. Marty, I think, in most cases — goes to a fish farm in B.C. and takes disease records, there's no licensing function around that whatsoever?
Hon. D. McRae: No.
Section 14 approved.
On section 15.
L. Popham: Section 15, "Reconsideration." Rules for requesting that the chief vet reconsider a decision regarding a permit licence or registration, 15(4): "The chief veterinarian must provide written reasons for an action taken…and a person may not request further reconsideration."
I'm concerned about this for a few reasons. Principles of administrative law suggest that in such an important decision…. The decisions that are being made, I think, that this section is referring to, are quite large decisions that can affect the livelihoods of some of the farmers involved, potentially. When such a decision is being made — life-changing decisions, I would say — there should be an opportunity for a review from a different decision-maker.
In Ontario, section 36 of the Ontario Animal Health Act says that individuals who receive orders under the Animal Health Act can request a review by an independent body, the agriculture, food and rural affairs appeal tribunal.
I'm just wondering. I know that a lot of this legislation was taken from the Ontario model and the Alberta model. I'm wondering why we didn't adopt some legislation that allows for an independent review.
[J. Les in the chair.]
Hon. D. McRae: Remember, the province or the Ministry of Agriculture is only responsible for seven licences: fur farms, game, hide, livestock dealers, livestock agents and public sale yards. The reconsideration is a good vehicle to use. In the last 15 years there has been no desire to go forward for appeal. However, if reconsideration went through and the opportunity was still turned down, the final phase of appeal could be a judicial appeal.
L. Popham: Okay. I think I understand that. But I still believe that the people affected by a decision are being denied the right to an independent review the way this legislation reads.
Hon. D. McRae: The existing process for the last 15 years has worked, in staff's opinion, very well. There is the appeal process through judicial appeal if it were to come to that. But it's been rather successful for a very long period of time, and we didn't want to overbuild the piece of legislation.
L. Popham: Maybe I'm misreading it. "The chief veterinarian must provide written reasons for an action taken under subsection (3) of this section, and a person may not request further reconsideration." So that, to me, seems really clear. At what point would you be able to do a judicial review, moving forward from this legislation?
Hon. D. McRae: The reality is we just don't want a scenario where a person can go back and ask for reconsideration multiple times. If the chief veterinarian officer has turned down with good cause, my belief is that they are not willing to vary their action. However, after the first reconsideration is turned down, the individual in question here would then be able to apply for a judicial review.
L. Popham: Where is that stated? Where can I find that?
Hon. D. McRae: It's not in this legislation. It's just a right that exists for all individuals to challenge a decision.
L. Popham: Okay. But when crafting this legislation, where we have seen things be put in for legalese and just because you need do that…. We have gone over the part of the legislation that was in there because that's what you're supposed to do around things. Not overbuilding this legislation doesn't really work as far as an explanation as to why this isn't in there.
This is a critically important part of fairness in British Columbia. So if we are now pushing people who don't agree with the decision of a chief vet in B.C., we're now telling them they have to go to the judiciary system.
Ontario has taken the steps for an independent review to be in place in their act. I'm not sensing that the minister is going to maybe see it my way, but I would like to have it on record that I think it is in our best interests as legislators to make legislation as fair as possible. I don't think it's overstepping anything to ask for an independent review to be built into this process.
I think we're taking away farmers' rights at this point. I don't think we have room within our judicial system to be pushing more cases that way. In fact, we just went through changing legislation that takes cases away from the judiciary system into an independent review with the Farm Industry Review Board.
I'm not sure why it works one way for one act and one way for the other act. Can the minister explain that?
Hon. D. McRae: This is about the seven licences we have — game, hide, livestock dealers, livestock agents, public sale yards. While they maybe have an effect on the agricultural community, they're not necessarily, particularly, farmers themselves.
The process we have had for 15 years has worked quite well. My understanding is there have been no judicial appeals in that time. The common sense that we built into this act — giving the chief veterinary officer some discretion — is something that I think we can work well with. It is important.
The reality is that if situations were to change — and since we have 15 years of data that say they really haven't been an issue to be concerned with — future legislatures would have the ability bring an amendment forward, if that's the case.
My staff has passed me a note, saying: "Ontario review board is not for regulated activities." We want to pass that along to you as well.
Section 15 approved.
On section 16.
L. Popham: Section 16: "Protected information." I think we have all been looking forward to this section — at least I have. Section 16 has caused a lot of concern, I believe — and not just for myself but from others. I think that we are well aware of the Privacy Commissioner's opinion on this section.
Given that the Privacy Commissioner, I believe, was consulted, my assumption is that the advice around their beliefs on how this changes or overrides the freedom-of-information legislation…. I'm assuming that that was ignored. I'm assuming that legislation that we agreed unanimously on in this House as being extremely important to British Columbia and the way that we treat the rights of people has been overridden in this legislation.
I have read the letters from the commissioner. I have read comments that some of the people that the minister has consulted with…. When they put in their comments during the consultation process, this was raised as well. I have copies of those letters. This is not something that is just of concern to the opposition; this is a concern by a lot of people.
I think what this does is it removes the public's right to access records relating to animal disease management outbreaks and emergencies. As Privacy Commissioner Denham has noted, "This bill would establish a separate and very broad access-to-information regime," without providing compelling evidence that such an extra step is necessary. I'm wondering: how does the minister see that there is evidence that makes this necessary?
Hon. D. McRae: We knew this was going to be an issue of questioning, and we want very much to make sure our answers are clear and concise, so if I may read into the record.
The policy underlying the Animal Health Act is based on an analysis of disease management scenarios for which the province could be responsible in the future; an examination of animal health legislation in other provinces; and a review of disease management lessons learned in other jurisdictions, including those related to public health management, because some diseases can be transmitted from animals to humans. Whether a disease infects humans or animals, the impact is significant.
I believe that in first reading I also mentioned some examples. The SARS outbreak in 2003 is estimated to have cost the Toronto economy nearly $1 billion in reduced travel, tourism and entertainment spending. The mad cow disease, otherwise known as BSE, scare of 2003 is said to have cost the Canadian economy close to $6 billion. It has devastated the cattle industry and the communities that depend on it, despite a relatively low risk to consumers. The avian influenza outbreak of 2004 in B.C.'s Fraser Valley lasted 91 days and resulted in more than 17 million birds being culled, 410 commercial poultry farms being emptied and had a gross economic cost exceeding $380 million.
A 2012 review of legislation indicates that there are 34 other statutes currently in force that have full or partial notwithstanding clauses in them. Until now, provincial legislation was very limited and precluded the government acting with full authority to manage anything except a small number of diseases.
Instead, the federal government has assumed the primary role of disease management in the province, and the information protection provisions of the federal Access to Information Act have applied in those circumstances. Information related to animal diseases is scientific and technical in nature and submitted to government in confidence, and is protected under the federal legislation, which is the Access to Information Act, section 20.
[D. Black in the chair.]
This situation does not apply in B.C., as there are additional criteria that must be met for additional information related to third parties — for example, farmers — to be protected. Sections in this act guarantee to farmers that their information will be maintained in confidence to ensure a collaborative and cooperative approach with government in disease-monitoring programs.
L. Popham: Given the statement by the minister, I just want to point out that overriding the freedom-of-information legislation doesn't stop disease outbreak. I think the minister implied that this was around stopping disease outbreak. Really, it affects the access to information around that situation.
It reduces trust among the public, I think, because if the government is the only agency that's able to access this and there is no sharing of information, I don't think that says a lot for the public trust in government. In fact, I think it does exactly the opposite.
Commissioner Denham states: "This override would be at odds with FIPPA's policy choices approved by unanimous vote of the House, a balance between the public's right to know and individual and commercial interests of confidentiality." Section 21 of FIPPA contains provisions to explicitly protect harm to third-party business interests.
I believe that's part of what the minister was saying — that there is a need to protect the business that might be having a disease outbreak. But I think FIPPA protects that type of business and that type of situation from happening.
I see that there are heads being shaken, but maybe we can talk about that a little bit. Is that what's driving this section — just the protection of those businesses and not the protection of the people who live in the province of B.C., who have a right to information?
Hon. D. McRae: For the Animal Health Act to be effective, it is absolutely essential that we have as much voluntary compliance with the agricultural community as possible. It is absolutely essential, as well, that members submitting samples voluntarily feel that their samples are held in trust and are analyzed with due care and process and are not taken out of context.
The worst-case scenario that could happen is that if the farmers were not willing to participate in the program, disease could have an outbreak, and it would take a much longer period of time for the chief veterinary officer to learn about it and react. Sometimes time is of the essence, and it is so essential that we have agricultural producers from all parts of the province partaking in this process to ensure animal health and human health are protected at the highest level possible.
D. Routley: The Information Commissioner is explicit with her criticism of this bill in that she feels that there have been very few overrides offered to FIPPA by any other legislation and that the government has not made the case that their concerns justify an override.
In fact, she mentions the previous collision of interests around fish farming information. A previous order by the commissioner directed the government to release regular routine audits of fish farms for exactly the same reason — so that the public would have access to information that would be essential to determining for themselves the seriousness of any kind of outbreak. At the time the B.C. Liberal government defended their refusal to release the information as a protection of third-party business interests. In fact, the fish farming industry joined the opposition and environmental movement in calling for the release of those audits in order to be open and transparent.
So it seems that a government that claims to be the most open and transparent government in the universe, should hardly be finding itself taking measures to override FIPPA again, for essentially the same reasons that they did in the fish farming example, and ignoring, essentially, the order of the commissioner as extended to this context.
Hon. D. McRae: In 2010 this was obviously an issue that was raised. As soon as we followed the adjudicator's decision and the data was released the fish farms actually stopped submitting their samples for voluntary audit. What we don't want to see is another scenario where a terrestrial creature — cattle, for example — were to be in the same boat.
We need the information from the producers, whether they are on land or in the water, because we want to make sure that we have the data there to learn about any outbreaks that may occur and react quickly and appropriately to deal with a potential disease outbreak.
D. Routley: It seems entirely inadequate that the government would then launch an assault on the Freedom of Information and Privacy Protection Act rather than take the necessary steps to ensure that that information is available from the industry sector that we're talking about.
It seems that the first step that an open government would take would be to ensure that proper measures are in place so that those producers are obligated to provide that information and that the essential right of every British Columbian to the information that their government processes and uses to make decisions about our environment and about our personal safety shouldn't be traded off to encourage a willingness from an industry sector to participate.
The commissioner suggests that the government's interpretation that FOIPPA is out of step with other jurisdictions, she says, is wrong. "Overly onerous" is the phrase that she uses, and not supported by her office's research.
So I think the minister and the government owe British Columbians a more adequate explanation of why they think overriding an essential freedom in this province is a better step than taking steps within the industry and within the sector to ensure there are adequate inspectors on the ground and adequate steps being taken through legislation to ensure compliance. Instead, we see the government attempting to override the Freedom of Information and of Privacy Protection Act.
Can the minister offer me a better explanation and better grounds?
Hon. D. McRae: Just for the record, there are concerns that the Freedom of Information and Protection of Privacy Act does not provide assurance that the confidential information related to farmers and their animals will be protected. Such protection is necessary for the effective operation of voluntary detection programs, traceability programs and to minimize financial consequences to farmers affected by disease. Also, there are concerns that FOIPPA would not provide flexibility for the collection, sharing and use of that information in emergency situations.
Under B.C. FOIPPA, information supplied to government by third parties — for example, farmers in this case — can only be protected if it meets all three of the following criteria.
First, the information is scientific or technical in nature; second, the information is submitted in confidence to government; and thirdly, the information is related to the commercial or financial situation of a third party, where it is believed that undue financial loss or gain could arise from the release of the information or that similar information would not be supplied to government when it is in the public interest to receive such information.
Although the first two criteria can easily be met in the context of disease control, the last criterion can be very difficult to meet to the satisfaction of those persons interpreting the FOIPPA. This is not the situation with federal legislation or with the legislation of many other provinces, where only one of the above criteria needs to be met.
The Animal Health Act provides assurance across all animal-producing sectors that third-party information is protected when it is submitted to government as part of a disease control program. Without this assurance, the voluntary submission of information will be curtailed that would lead to early disease detection, tracing and control.
A review of animal health legislation and freedom-of-information legislation in every other province and the federal government shows that some provinces, like B.C., have three criteria in their freedom-of-information legislation, all of which must be met for the third-party information to be protected. These provinces include B.C., Alberta, Nova Scotia, Newfoundland and Prince Edward Island.
Of these provinces, Alberta has a notwithstanding clause in its animal health legislation to protect information supplied to government that is related to animal disease control. B.C. is proposing a very similar clause. Nova Scotia, Newfoundland and P.E.I. do not have such clauses in their animal health legislation, nor do they have significant animal agriculture industries, compared to the larger provinces.
All other provinces and the federal government have freedom-of-information legislation in which it is only necessary to meet one criterion in order to protect the third-party information. In these provinces, protective clauses are not necessarily required in the animal health legislation because virtually all third-party information related to animal disease control programs would be protected. However, Ontario has gone a step further by stipulating that third-party information meet one of the tests in its freedom-of-information legislation, thus removing any doubt.
D. Routley: Well, this is British Columbia, and British Columbia has since 1993 — at that time, at least — prided itself as leading this country in terms of open government, freedom-of-information legislation. That legislation over the past ten years has been undermined repeatedly by the B.C. Liberal government.
In fact, the Freedom of Information and Privacy Association referred to "a sophisticated culture of avoidance" when it comes to the B.C. Liberal government's practices, when it comes to freedom-of-information legislation and their steps to undermine and sidestep the provisions of the act.
I was co-chair of the committee that reviewed the Freedom of Information and Privacy Protection Act last year. In every case that the government brought forward, expediency for government interests was offered as a reason for undermining the protections under the act.
The acting commissioner, Paul Fraser, used the story of two moose hunters to illustrate how expediency can sometimes lead us off course. He said that two moose hunters were out in the bush, and they shot a moose. They were dragging it back towards their truck by its hind legs, tripping, stumbling and cutting themselves, bruising themselves. They were covered in dirt and mud.
A game officer came along and checked their licences. He verified that they were indeed legitimate hunters. He looked at what they were doing, and he said: "Wouldn't it work a lot better if you were just to get on either side of the antlers and pull the moose forward?" So the two moose hunters did just exactly that.
They made great progress. They weren't tripping. They weren't stumbling. They weren't hurting themselves. And one moose hunter said to the other: "You know, that guy was right. We're making great progress." And the other moose hunter said: "Yeah, but we're getting further and further away from the truck."
It illustrates how simply taking a step that will increase expediency, that will increase the efficiency of how the minister might like to achieve a goal, might drag us away from the principle that we were originally intending to address.
The handling of information, and the freedom of access to it in a democracy, is an essential freedom. If every time the government runs up against a problem where the Freedom of Information Act and its structure, its architecture meant to protect that basic freedom, become an obstacle to the government's expediency, well, then it may appear that the easiest thing to do is to simply dismantle that architecture.
In fact, the commissioner is saying that the act is not properly interpreted by the minister and by the government, that their research is faulty. Unless the government is telling the commissioner that her office and their research are faulty, that in fact the act is an impediment to public safety…. If the minister is saying that, then the minister should address the Freedom of Information Act directly, not simply try to undermine its provisions with this section of this act.
From my reading of the commissioner's letter, she is clear that the government has not offered enough support for the argument that the Freedom of Information Act should be undermined in order to offer that expediency of collecting information, and that in fact the government needs to take adequate and proper steps to ensure that the information is available and to use the act to protect the interests of third parties where necessary, but under the existing provisions of the act.
The minister needs to offer a better explanation than simply that the freedom-of-information acts in other provinces don't protect the public's right to know in this similar case. This isn't Alberta. This isn't Ontario. This is British Columbia. We have our own Freedom of Information and Privacy Protection Act. This is a province with a Premier who claims to have the most open government in the universe.
How can the minister justify undermining that essential freedom in order to achieve this expediency?
Hon. D. McRae: I want to assure the members opposite and the general public that this action was not taken lightly and was one of much discussion. In fact, we as a ministry engaged the commissioner, looking for some common ground, and we are very respectful of the fact that her job is to protect freedom and privacy. For those reasons, we are glad to work with her, and we're glad to have her.
But based on our experiences in other jurisdictions, there has not been a successful animal disease control program anywhere in the world — the chief veterinary officer for British Columbia, who has extensive international experience, is my source for this — without voluntary farmer cooperation. It would have been absolutely great to have found that common ground. However, the goal of this act is to protect human and animal health, and cooperation of the producers is absolutely essential.
Without information, without data, government and the chief veterinary officer cannot react accordingly. We do not want to act in a vacuum, where we are surprised by a disease — at its degree when it is much harder to control than at the very early stages — if possible.
D. Routley: Why is a judge more effective than the priest, I might ask? The priest can warn us that sin will eventually lead us to condemnation. A judge can assure us of that.
The provisions of law assure us that our essential freedoms will be protected. The promises, the assurances, of the minister and the government that somehow they are going to not take these steps lightly and will protect these essential freedoms, while they are engaged in undermining them, are hardly reassuring.
The commissioner, as did the former acting commissioner, points to a lack of understanding on the part of bureaucrats and the government itself of the provisions of the Freedom of Information Act — in fact, that these goals of the government can be achieved without undermining the Freedom of Information Act.
The language that the commissioner uses is strong, and this is a commissioner who isn't prone to bold statements about the government's actions and has been quite restrained in judgment. But this language is very assertive. It says: "The broad and sweeping strokes taken by this bill adjust the long-established balance of interests between access to information and confidentiality."
That is a very big statement, and it's a very big step for the government to take in any legislation — to take "broad and sweeping strokes" at undermining an essential freedom, the freedom of information, the right of the public to its own information. Former Premier Gordon Campbell referred to the government's information not as the government's information but the public's information.
Any steps taken to undermine that freedom of access are to be taken cautiously, are to be resisted thoroughly. And it seems to me that at every step this B.C. Liberal government…. Whether it be health legislation, where they're carving out whole sections of health authority activities from scrutiny, or whether it be this bill dealing with agriculture, there's consistent undermining of the structures and provisions of the Freedom of Information and Privacy Protection Act.
To illustrate that point, the Information and Privacy Commissioner writes that she believes that "the ministry is granting itself…unlimited powers." Now, that's referring to a separate section, but it illustrates the kind of concern that the commissioner has when it comes to any steps that might be taken by a government to offer the bureaucracy an expediency that comes at the expense of the protection of the freedom of information.
While the minister says the chief veterinary officer tells us that there's no animal health regime anywhere in the world that has been successful without voluntary compliance, has the minister not taken any steps to create an atmosphere where voluntary compliance can coexist with the current Freedom of Information Act? It seems that the commissioner is saying that the government and the minister haven't made the case that that can't be achieved.
Hon. D. McRae: Earlier I raised the issue of the fish farm example, where when the information submitted by the fish farm was not protected, data stopped coming in. That's an example of where, if we do not protect, have some level of confidentiality, we do not know what's happening.
Again, I want to assure the members opposite that we have worked extensively, and this is taken very cautiously. We've canvassed privacy experts extensively within government.
I want to assure the members opposite that this section of the bill is not about expediency. It's about protecting human and animal health. For that, using the fish farm example and other examples in other jurisdictions, we need the cooperation of the producers to make sure that we have the data there.
The worst thing that we could have is a producer who has a potential disease potentially hide that disease and us not know about it, and it gets worse and worse. I use the examples about the billions of dollars that could be impacted, whether it is through SARS, avian bird flu or BSE.
L. Popham: The protected information, section 16, states that, except as permitted under section 17 or 18, "a person must refuse" — despite the freedom-of-information legislation — "to disclose the following…."
There is no qualifier on "person" in this section. I'd like to know if this is a drafting error, because in the following section, section 17, it does limit the meaning of persons. This suggests that the broadness of the term was deliberate in section 16.
Hon. D. McRae: Section 16 must be read within the context of the acts. The references in section 16 to section 17 and 18 imply that the "person" in section 16 takes its meaning from those sections. So in section 17, "person" is implying employees and former employees of the ministry of the minister, each inspector or former inspector, persons engaged or previously engaged in the administration of the act, a person responsible for administering a laboratory and an employee or former employee of a laboratory identified for the purposes of section 16.
L. Popham: I'm going to read this again. Except as permitted under section 17 or 18, a person must refuse, despite the freedom-of-information legislation, to disclose the following: information that would identify or reveal (a) the identity of a person responsible for an animal, (b) a specific place where animals are kept, (c) information that would reveal that a notifiable or reportable disease is or may be present, (d) information that would reveal that an animal or an animal product affected by a notifiable, reportable disease is in a place or owned by an identifiable person or body, (e) info derived from a sample under this act.
So we go back to the reference to a person, and it looks to me like, on the face of it, the government is trying to prohibit all people from communicating about the existence or even the possible existence of a notifiable or a reportable disease. In my interpretation, and in many other people's interpretations, this is a big overreach, and it would apply to everyone. If you follow the law that we are now debating, it would apply to journalists, independent scientists, concerned neighbours, interested individuals, etc.
This law reads that it applies to everyone. I don't think that, if you read…. As I read it, and I've had legal consultations, this is a big concern. It's trying to block information.
I understand the idea that trust must be built between businesses and the government, allowing for freedom of information. But I don't think British Columbians have chosen to live in the dark about issues. I don't think that when the freedom-of-information legislation was voted on in this House, it was passed unanimously with the idea that it could be used whenever the government wanted to and then if the government didn't want to, it wasn't important.
Does section 16 apply to the media and independent scientists and anyone who would want to inquire around information of a potential disease outbreak or a disease outbreak? Why would this information be kept from the public and anyone else who may have a concern about it?
Hon. D. McRae: The term "person" in this act does not refer to the media. It does not refer to independent scientists or individuals making inquiries. The term "person" does refer to the section 17, subsection (1)(a) through (e) — which I quoted earlier, and I think it's already in the record, but it was particularly to those (a) through (e) individuals. Again, to the member opposite, it does not refer to the media, independent scientists or the general public making inquiries.
L. Popham: So if the media, if independent scientists, if other advocacy groups were to inquire around information, around disease outbreak or potential disease threats, would the information be given to those people? Would the information be shared with the media so that the media could then report out on it? I don't think the legislation says that that would happen.
Hon. D. McRae: Again, we're referring in this act to the word "person." It refers particularly to the positions I mentioned in section 17(1)(a) through (e). However, if a person involved in the media, an independent scientist or the general public were to inquire to the individual farmer about a test's results and the individual farmer wished to share them, he or she would be more than able to do so. If the farmer were to provide consent to the ministry, we would also be able to provide that information.
L. Popham: Well, that's the minister's interpretation, but I think that section 16 creates an obligation for the person to refuse to give information. In fact, that's exactly the point. If they don't refuse, they could be incarcerated; they could be charged. I mean, there are severe penalties for disclosure of this information.
There's some headshaking going on, and I understand there may be some frustration. But the interpretation….
I didn't come up with all of this information on my own. I have also had legal advice, and it is concerning. So if it's not the intention of section 16 to basically create a gag clause within this legislation, then I think this section 16 needs to be reworded so it's more clear, because the advice that I've been given is that this may be an unintended gag clause, but it's a gag clause.
Hon. D. McRae: Again, in section 16, the "person" refers to those mentioned in section 17(1)(a) through (e). Again, I won't read them off. It is talking about employees of government, inspectors, persons engaged in administration of the act. It is not referring to media, independent scientists or people making individual inquiries to such an act.
L. Popham: Okay, so there was an outbreak on a poultry farm, and there were neighbours surrounding that poultry farm. The ministry, the provincial vet, made a decision to deal with the disease outbreak in whatever way the provincial vet saw fit. The owner of that business shared information on either how the disease started or a timeline of the disease outbreak. They requested that that information not be shared.
This legislation then kicks in, because I think if the owner of that business does not want that information shared, then there is no way that the ministry can share that information. But perhaps the neighbour overheard the conversation and spoke to the media. Is that an instance where the minister can see that this puts the neighbour and the media in jeopardy of sharing information that was confidential as far as the owner of the business is concerned?
I guess that what I do need is some reassurances that around any information shared around outbreaks of disease, disease that pertains to the Animal Health Act, there will be no incarcerations and no fines levied against anybody reporting information out that they may have obtained on their own accord.
Hon. D. McRae: Section 16 does not apply to the neighbour, nor does it apply to the media, nor an independent scientist, nor individuals making inquiries or people in the general public who happen to overhear information and then spread it.
L. Popham: Can the minister see, in any part of this act, where that might kick in?
Hon. D. McRae: There is no offence attached to section 16.
L. Popham: Given that I perceive frustration on the other side of this House, I would like to again state that I'm not making this up. They're not just my concerns. They're valid concerns from reputable agencies, including the BCSPCA.
The BCSPCA submitted a letter today, and I think the minister has a copy of that, regarding Bill 37 and regarding the same concerns I'm bringing up right now. I'm going to read the first three paragraphs, which I think apply to this section.
"I am writing to provide comments on Bill 37, the Animal Health Act, tabled Monday, April 30, 2012. While the BCSPCA is supportive of the intent to modernize the outdated B.C. Animal Disease Control Act to better address animal disease prevention and eradication, we feel it's necessary to raise critical concerns we have about the scope of the provisions proposed in the new act.
"We believe that this bill is written with a broad scope that does not adequately address the intended subject that was described in the initial consultation announcement of November 2010. Instead, unclear wording allows for multiple interpretations that may pose unintended limitations on the sharing of information necessary for the enforcement of other legislation, such as the Prevention of Cruelty to Animals Act, and for transparency in public access to information about animal use.
"Specifically, we wish to echo Privacy Commissioner Elizabeth Denham's request to remove section 16. The implications of this section of the law are far-reaching, particularly one. 'Except as permitted under section 17 [duty to keep information confidential] or 18 [personal information], a person must refuse, despite the Freedom of Information and Protection of Privacy Act, to disclose the following: (a) information that would identify the person responsible for an animal or an animal product or byproduct.'
"This broad language is not in keeping with British Columbia's existing standard of clear and enforceable legislation."
I think that's the problem. I will believe that the minister's understanding of the legislation and the intent of the drafting of the legislation is there. I believe that the government side of the House believes that this doesn't contravene any of the issues that I've been talking about. But law is about interpretation. You have to remove the multiple interpretations that may come from legislation before it's passed so that it's good legislation and it's solid.
If the BCSPCA is also weighing in on it, the Privacy Commissioner is weighing in on it, the Freedom of Information Association is weighing in on it and we had legal representation weighing in on it, I think it's a point where an amendment would be considered by the minister to make it more clear. So if "a person" isn't a general term, I think it needs to be written into section 16. I think that that's fair.
Now, we didn't just send section 16 out willy-nilly without the context of the rest of the act. We certainly did, and it has all come back the same: that it's too broad. My request is that the minister consider an amendment. If there is no amendment, we will not support this part of the bill.
Hon. D. McRae: We also just received the letter today, and we look forward to having conversations with the BCSPCA. They do great work, and their legal advice is very strong.
With all due respect, we think they might have some misinterpretation here. For that reason, it's important that the Ministry of Agriculture has contact with the BCSPCA.
But for the record, the confidentiality provisions related to the Animal Health Act, only not the PCAA…. The Animal Health Act deals with reportable and notifiable diseases, both of which trigger specific disease control actions.
This bill is not about animal welfare. The language of the section has been reviewed by several legal advisers, including those specializing in privacy law, and we have canvassed several times already that "a person" is referring to people outlined in sections 17 and 18.
L. Popham: I think the minister just made my point, that the SPCA does have good legal advice. Their interpretation of this law is different than the ministry may want it to be. That's the whole point. The consultation, which I don't think was enough, because we wouldn't be, at this point, trying to sort out section 16…. So yes, I hope that the ministry has an in-depth conversation with the BCSPCA, because their interpretation is different.
I don't need a comment back. I just wanted to put that on record — that the letter that was sent in was done in a thoughtful manner, and I don't think it was a wrong interpretation. It was their interpretation. That's the problem with section 16: it has many interpretations. But I have another member who'd like to comment.
V. Huntington: It's obvious that what we have here is a completely different attitude towards the public right to know. It's a deep philosophical difference in this instance. We're dealing here, as the minister said, with the protection of human and animal health. That means we're dealing with the human food chain and the communication of disease of animals and animal products that move into that human food chain.
To think that the public do not have a right to know that there is a problem existing in that food chain, then, is just such a deep philosophical divide that I don't even really know how to tackle the issue in this committee.
A producer that has permits and licences to sell into the food chain should be required by this province to provide at all and any time all the information necessary to show that those animals are healthy. To think that you have to create a situation where people are not allowed to advise the public or anybody associated with the issue that there is a problem within that chain of human food supply in order to ensure the cooperation of the producer is upside-down logic when you're dealing with human health.
Those producers, I repeat again, should be required by their licence and permit to at all times cooperate and advise — cooperate with the province and advise them of any issue related to the health of their animal and animal product. They should be penalized heavily, and they should lose their licence if they do not cooperate as the licence would require them to.
I just think that to ensure silence on the matter of human health and food for that human food chain is wrong thinking. We've seen it happen where producers are protected and don't have to provide information, and it just provides angst throughout the public, when in fact that data should be immediately available to them at all times.
I can see where the ministry…. I think the producer has a right to protection from rumour and unsustained laboratory tests or unsustained accusation of poor health or disease. But once that disease is confirmed, there should be no necessity at all for the province to hide that fact from the public.
If this section dealt with rumour or suspicion, I could understand it. But subparagraph (c) blankets all the provision, whether "a notifiable or reportable disease is or may be present." If it may be present, keep it quiet until it's confirmed or proven otherwise. But if it is present, the public has a right to know.
I'll ask a question of the minister. Does this provision…? Does section 16 prevent buyers, auctioneers, abattoirs — any operation within the food chain — to be denied this knowledge that there is a notifiable or reportable disease of an animal or within an animal product?
Hon. D. McRae: If there was a notifiable or reportable disease, and we follow protocols, it would never make it into the food chain. As well, again, we have not entered down this path lightly. We have no ability to yank licences from farmers, because the vast majority of farmers are not licensed.
So right now on Englewood Street in Courtenay the person there who may be raising nine cows is unknown to us. It is so essential that we actually have the data going forward that allows us to actually know what is being done and be able to react accordingly. But we cannot yank the licence of a person who is not behaving properly, because there is no licence to act on.
V. Huntington: All right. In those instances where farmers aren't licensed or permitted to be selling into the food chain, I can understand that. But here this provision, it would appear, prevents the ministry from — I'm reading — telling a wholesaler that there is a problem, because section 17 doesn't refer to the disease. It refers to personal information.
Would the minister please tell me where and how this information that is absolutely forbidden to be disclosed would identify the person or the animal that has the disease and how that information makes its way through the slaughter chain of command, if you will? I don't understand how you're protecting the public in this way.
Hon. D. McRae: Let's go down sort of this hypothetical. You would hate to have a scenario where…. By the way, there is no Englewood Street in Courtenay, so I'll just use that. There is no farm on it as well.
If there were a farmer who was on Englewood Street in Courtenay with his or her nine animals, the worst-case scenario would be that the farmer sees something that maybe was reminiscent of a disease, did not consult with the vet and did not do any testing. If, out of pure fear, he were to terminate the animal's life and hide that animal, and there were seven or eight other animals on the farm which showed no disease but may have been carriers, in theory, there is a chance that that could actually enter into the processing system.
However, if we had a scenario where farmers were voluntarily submitting their information so we did know what was on that farm, we would have the ability, then, to act accordingly. It would stop it from hitting the food chain, which is one of the things we're going towards.
The other piece to go with that, if I may — to make sure I keep my train of thought here; I've only been going for four or five hours…. Oh, I've lost it. I'll tell you what. I may come back to that one. My apologies.
V. Huntington: I don't know. I don't even know where to begin. That's like saying that if company A is thinking about committing an offence and we don't find out about it, that's terrible, but if we don't have the penalty, if we don't require him to let us know that there's a problem here, that he'll cooperate with us voluntarily.
You can't hide disease from the public. You mentioned that nothing in this stops a journalist from asking the farmer. Will the minister tell me where a journalist would ever know that there was a problem when dealing with this section?
Hon. D. McRae: A good question, and it actually allowed me to remember my second point from before. For example, if it was decided that there were animals in question on a farm, the chief veterinary officer could impose a quarantine zone. A quarantine zone would not be hidden. It would be obvious. Notification would be posted around the farm to make sure. It would not be a hidden scenario at this stage. It would be something that would be very obvious to the general public, especially in the immediate area.
V. Huntington: All right. Just to satisfy me, what in these three sections — 16, 17, 18 — enables the chief veterinarian to do that? Section 18 is dealing with personal information only and "personal information" is defined in the definition section.
Hon. D. McRae: We'll use some examples here about diseased animals. We'll deal with situation 1, where we have a disease where the disease is not a risk to humans — for example, pig influenza. Assuming the pigs were treated and able to recover, the animals could actually work their way back into the food system if that was the case.
However, if a diseased animal had a disease that was a risk to humans — for example, avian influenza — a quarantine would be put up. A disease mitigation plan would be brought in, and that would include slaughter of the animal and disposal of the carcasses as well.
Section 17, for the member opposite, also does contain an override, where such information about the disease could be disclosed with the person's consent — the person's consent being the individual farmer — or where it is in the public interest to do so. The minister has the ability to make sure in the case that it is essential for the well-being of the general public that the public is aware.
V. Huntington: I won't go on and flog a dead horse, because I think there's just a substantial difference of opinion here. As I said earlier, I can see absolutely that where there is suspicion of a disease, it should be confirmed. The producer should be protected from any suspicion or nuance or rumour while you're confirming that.
Once the disease is confirmed, if it is going to go to quarantine, it's public then. I think that there should be no fear of advising the public.
It's this type of confidentiality by government that creates suspicion and distrust throughout the public mind. When it's unnecessary to do so, I have no understanding of why a government would proceed in this fashion.
I ask one further question just to assure myself. A notifiable and reportable disease includes transmissible disease? The definitions aren't quite clear in that regard.
Hon. D. McRae: We were talking earlier about some of the definitions, and the definitions will be described by regulation, transferrable or reportable. I guess by definition all diseases are transmissible.
Just one other point if I may as well. It is so important that we…. We want farmers to actually act in a way that is good for animal health and good for human health. There are examples in other jurisdictions where farmers, by actually having their information about their particular farm and perhaps about a disease…. Their livelihood as a farmer was thereafter forever destroyed, because even though the disease was contained, and it would not be repeated — I would hope, anyway…. It was at the level of satisfaction of the authorities.
The reality is that people or processors would never buy off that person again. That farmer or that farm family would no longer exist. When you have a scenario where people are worried about their livelihood being forever taken away from them, you cannot prejudge what their reaction will be to a disease. The best thing we can do is make sure that people will continue to always submit samples and that government has the information that is absolutely important, which allows individuals like the chief veterinarian officer to react in a way that protects animal health and human health.
I totally understand the concerns raised by members opposite, but the reality is that if we don't have the information, the government and the chief veterinarian officer cannot act.
The Chair: Shall section 16 pass?
A Voice: Division.
The Chair: Division has been called. Pursuant to an agreement between the House Leaders, this division on section 16 will be deferred to 5:45 p.m. in the House today.
Sections 17 to 21 inclusive approved.
On section 22.
M. Sather: This is on traceability systems. In this section, "'traceable animal' means an animal that is subject to a traceability system." What is a traceability system?
Hon. D. McRae: Traceability is an existing feature of Canadian agriculture. Tags, tattoos, brands and paper-based logbooks are all aspects of traceability that have been used for many years.
Traceability includes the identification of animals or products, the ability to follow their movement and the identification of departure and destination of premises.
[E. Foster in the chair.]
Many industry sectors — like the cattle, like the hog industry — voluntarily already have a traceability process in place and underway.
Section 22 approved.
On section 23.
L. Popham: Section 23 is regarding inspections. An inspector may "(a) stop a person…(c) enter a vehicle or place and inspect…to determine," in (2)(a), "the presence of a notifiable or reportable disease" or whether this is "otherwise a significant risk to animal health, or to public health," or "(e) to monitor or confirm compliance with…a term or condition of a licence or permit."
I don't see that an emergency has to be declared to use these powers. I think there could just be a suspicion of disease present. But first off, I need to know: what does it mean to give the inspector the power to stop someone?
Hon. D. McRae: We're talking here about actually physically, like section (b), stopping a vehicle, but this is about stopping a person. Perhaps a person is trying to leave a secure area and has not followed disease protocol or perhaps is trying to walk off a property. That's in regards to what we're doing here. We're trying to prevent.
L. Popham: That being said, I'm assuming it means to physically detain someone to stop them from doing whatever they were about to do before they were stopped.
[D. Horne in the chair.]
It's very broad, and it implies that the inspectors have higher powers or have powers of police and constables. To detain a person is quite a high level of power. The act only requires the inspector to be a vet in order to have the powers of a police officer.
It's concerning because even an inspector or an officer of the SPCA has to have certain requirements before they're able to act in this way. So what are the requirements for a vet to be empowered in order to physically detain somebody?
Hon. D. McRae: An example would be to physically stop a person entering a quarantine zone. But we're trying to limit the spread of a disease either onto or off a farm. That's the intent here.
L. Popham: Okay. This act only requires inspectors to be vets. During an emergency, even that condition can be waived, and it would allow the provincial vet to appoint anybody to be an inspector, who would then have the powers to stop a person.
How does being a vet give them the training necessary to use physical force to stop somebody? In the act it says that, basically, you have a warrantless system for non-residences. But during an animal emergency, you can even go into a residence as an inspector.
You're entering into somebody's home, they're trying to leave, and the inspector is now required to physically restrain somebody. I'm not really sure…. I think this would fall under the Police Act, not the Animal Health Act. I think we need a better explanation, or perhaps this needs to be amended.
Hon. D. McRae: Just for the members opposite, "An inspector may stop a person or a vehicle and inspect the vehicle or place for only the following purposes: if there is reason to believe that a notifiable or reportable disease may be present, to determine" the presence of a disease, or what, if any, additional risks may exist to animal or human health. He may also do this "under section 20 or 21 to confirm the information provided in the report or to obtain further information."
They also are able "to determine whether (i) a licence or permit should be issued, or a registration should be confirmed, or (ii) a term or condition of a licence or permit…should be varied or rescinded" or terminated; or "to monitor animal health within a quarantine zone, surveillance zone or control zone in relation to the notifiable or reportable disease" identified in the order.
If the veterinarian believes that they need assistance, under section 73, "(1) An inspector may call on the assistance of a peace officer for the purpose of taking an action authorized" under this act.
L. Popham: Okay. So the police may be called if the inspector or the vet feels that they need assistance. But this act is empowering the vet or the inspector to physically stop a person. There are two concerns here. One is that it puts the provincial vet and the inspectors in a potentially very dangerous situation where they're going to be in a brawl, getting injured themselves.
The other concern is that we now have people who have the powers of police and are able to physically stop people. Has there been some consultation with the police or with the RCMP around this?
Hon. D. McRae: The key thing here is it's about "may" stop. We're not requiring vets to forcibly detain anyone. However, one thing that may be an issue is during the course…. The penalties can be quite severe. I think it would be very important that the vet would remind the person who is perhaps going to be out of compliance that penalties can be as high as $75,000 and that failure to act under the guidance of the vet might come at the peril of prosecution.
L. Popham: You know, what bothers me is that it seems as though the legislation can be tight in some areas and sloppy in other areas. I don't care if "may" is in or out of the sentence. This legislation reads that the provincial vet or inspectors can physically stop a person. If that's the legislation that the minister wants to support, that's fine, but it leads to so many questions.
For example, what if the provincial vet stopped a person physically and they were killed in that action? Who's responsible? Who takes responsibility for the life of the provincial vet? That doesn't seem right to me. This is sounding more crazy as we go along.
Hon. D. McRae: We're not seeing a situation, or we're not contemplating a situation, where vets will be expected to physically detain individuals. If the vet believes that there is a risk to his or her well-being, by all means, we would expect them to fall back on section 73 of this act, which allows them to use a police officer for assistance.
But the primary course is…. I think we see it being used in such a case where there was an individual who was walking onto a quarantine zone. We would want to have the vet with the ability to definitely raise the issue with the person potentially breaking the quarantine zone. If they felt that this was a risk to themselves at this stage, they could then bring in a police officer to assist and perhaps physically stop the individual from risking themselves and/or others.
L. Popham: Then can the minister please admit that this is too broad? The interpretation is that they can stop a person physically in any way they see fit. I mean, that's way too broad. That has to be amended.
First of all, maybe the minister could give me some indication if the minister is interpreting this the way that I'm interpreting it. Does the minister feel that physically stopping someone is the role of the provincial vet or of somebody that may be appointed as an inspector?
I also want the minister to answer the question I had around whether there has been any consultation with the police or the RCMP. How do they feel about this line in the legislation?
I understand what you're saying. If the legislation is there in order for some questions to be asked, permits to be requested, that's totally different than being able to physically stop a person. I think it needs to be cleared up. I want to know if the police have been consulted on this.
Hon. D. McRae: In regards to section 23, the police were not consulted on this specific section. However, on section 73, which does involve police action, they were consulted in this piece.
L. Popham: So the piece of legislation that allows for a provincial vet or inspector to call for police assistance, the police were probably fine with that since that's their job. But if we don't get to that section because the provincial vet is dead, because they tried to stop somebody and it wasn't successful….
What protects the provincial vet? There's no protection. It leaves the provincial vet open for possible physical injury as well as whoever the provincial vet is trying to stop. I think there's a responsibility for the ministry to consult with the police when allowing someone to physically stop another person. I think that is incomplete legislation without consultation.
Hon. D. McRae: There is no obligation for the inspector to physically stop an individual.
We do live in Canada where we have a very clear Criminal Code. People understand that assault, murder and such are crimes that are taken very, very seriously. While there is a possibility and a circumstance that it could occur…. You know, assault and murder could occur anywhere, including walking on the street after we get out of this Legislature in 45 minutes, when I walk back to my hotel. Again, we have criminal law to prevent people from doing this.
L. Popham: I don't accept that answer from the minister at all. I don't accept it. I think that the unwillingness to get consultation from the police or the RCMP is poor form. I understand that the word "may" is in there. It may happen. I understand that we live in Canada, and we have somehow…. I didn't find it yet, but there's a nice clause written into this legislation. But that doesn't work, because this is the law.
If, for example, the provincial vet stops somebody, and the person that they stopped died because there was an interaction, is the provincial vet off scot-free because this legislation said that they're allowed to do that?
Let's make sure that this law is written for the purpose of what we're trying to get to. We're trying to get information from the person that the provincial vet or inspectors is trying to stop. I get that. But this is going beyond that. It doesn't protect the vet, and it doesn't protect the public.
I think we need to revisit this. I'm interested in knowing if the minister is…. We're going to have to break pretty soon. We're going to have to vote in the other House. So I would request that we don't finish off section 23 and allow for the minister to do some consultations with our law enforcement agencies, and we come back to this one on Tuesday. Is the minister interested in that?
Hon. D. McRae: A couple of things. In this particular section, we did not consult with the RCMP. We did it, like I said earlier, in section 73. However, in regards to this section — section 23, if I get it right — we did have significant consultation with the vets. If the vets had raised it as an issue that was of major concern to them, we would have acted accordingly.
I think it's important for members opposite to know that vets carry on inspections on a regular basis around the province right now, doing this. This is not something that's unfamiliar to them. They understand it.
We do not want to put them in undue pressure or undue danger. That is why we have the word "may" in here. That is why we also have the provision, as a backup, that they may engage a peace officer to assist them if they feel they are at risk.
Again, this is something that they've been doing for a very long time. If they were concerned about it, I'm sure they would have raised it. Instead of going from the RCMP down, I think we should work with the individuals actually asked to do the inspections, which in this case will be the veterinarians themselves, and they did not raise it.
L. Popham: So the minister is not interested in using the next few days, while we are not in the House, to consult with the RCMP just so that, on both sides of the House, our minds are at ease and we have made sure that the lives of the provincial vet and inspectors are not in danger?
Hon. D. McRae: Like I said earlier, I'm fairly confident from the consultation we had with the veterinarians that if this was an issue, it would have been raised. I'm sure that if there were significant issues raised in section 73 — that there was carryover— that would slide down to this particular case.
Again, we have had veterinarians doing inspections around the province of British Columbia for a substantial amount of time. They are protected, as well, by the Criminal Code, like I mentioned earlier, from assault and murder and such. So for that particular case, it's something that I don't see as a major concern at this time.
L. Popham: Are there any other provinces that use the words "stop a person"? I've looked through the Ontario legislation, and I don't think they've given anybody broad powers to stop anyone.
Hon. D. McRae: I think I'm going to finish up by saying that this act is about protecting animal health and animal health through to human health in that manner. We do have the Criminal Code of Canada, and that does protect individuals so that they are not assaulted or murdered or such.
L. Popham: Given that the minister is unwilling to consult with the RCMP or the police on this issue, I'm going to do the consultation. I know that I can't hold up this section. But I'll do that over the next five days, and I'll come back with a report of what I find, because I think it's really important.
We don't sit on this side of the House just to be a pain in the butt. We're here to make this legislation strong and to make sure it's fair and to make sure people are protected. I know what the intent of the bill is. It's around animal health. But there are implications that could happen with this section. That being said, I'll get back to you next week on what I find.
Hon. D. McRae: I assume, if you're going to do some consultations, you'll be talking to an organization, because there are thousands of police officers. I guarantee you could find an individual, no matter what side of the coin they wish to stand on, on this particular issue. If you're going to come back with some information, I'd love to hear from perhaps an organization or an association that represented a large number of officers.
L. Popham: I'll probably do that. I could visit the Saanich police. I could visit the West Shore RCMP, or I could maybe make some calls, too, if we wanted to go higher up in the organization. I can do the minister's job for him.
Sections 23 and 24 approved.
On section 25.
L. Popham: In section 25, "Entering to inspect," with the exception of a personal residence, no warrant is required, and written notice or advance notice is not required. I'm just wondering what legal advice the minister has followed for this part of the legislation.
Hon. D. McRae: There are conditions under which an inspector may conduct inspections without providing notice. These conditions include when the thing to be inspected is on public display — maybe a science fair item — when providing notice would not be reasonably possible or practical in the circumstances and in the case when an inspection is conducted to determine compliance with the regulation. Notice may not be given when it would frustrate the purpose of the investigation.
M. Sather: If we're looking at inspections, it's all kinds of things. Of course, as the member knows, my critic area is fisheries so I think about fish farms. So (2)(a): an inspector must "take reasonable steps to notify the owner or occupier of the place of the date and time that the inspector will be entering."
Isn't that counterproductive? If the government is looking to find out what the situation is every day, on any given day, why have to give notice that you intend to make an inspection?
Hon. D. McRae: An inspector is required to give reasonable notice of an inspection before entering the premises. The exceptions to this rule are, for example, one, in the case of a regulated activity — for example, a game farm. The second one would be where giving notice could frustrate the purpose of the inspection or providing notice is not reasonably practical or possible. Frustrating the purpose of an inspection is if we believe that by telling them we're coming or that they were going to be inspected, they would hide the animals in question. The third piece is if providing notice is not reasonably practical or possible.
Sections 25 to 28 inclusive approved.
On section 29.
L. Popham: This is probably going to be our last exchange. Section 29 is "Reason for seizure, slaughter or destruction." Section 29(1) states that an order for seizure, slaughter of animals can only be made if an animal has a reportable disease or a thing has been exposed to a reportable disease.
But subsection (2) says that an order can be made if the chief vet "(c) cancels an operator's licence, permit or registration." It might just be an interpretation that I have from reading this, but it seems to me that a decision to cancel an operator's licence, permit or registration is sufficient grounds to seize or slaughter animals.
Hon. D. McRae: In this act, under section 29, we can't skip through (1) and jump straight to (2). Subsection (1) would have to apply, and if (1) were to apply, then (2) would actually come into effect as well. So you can't, for seizure, slaughter or destruction, just run to subsection 29(2)(c) and then say that they are going to have the animals seized, slaughtered or destroyed because the licence, permit or registration was cancelled.
Mr. Chair, I move that the committee rise, report progress and ask leave to sit again.
The committee rose at 5:41 p.m.
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