The private member’s bill, sponsored by former Burnaby-Douglas MP Bill Siksay, would have amended federal human rights legislation, adding “gender identity” and “gender expression” as prohibited grounds of discrimination, thereby providing express human rights protection for trans people at work and elsewhere within federal jurisdiction. The bill would also have improved Criminal Code protections for all trans people. (See non-authoritative definitions, below).

Sadly, C-389 died in the Senate as a result of the most recent federal election. Similar bills sponsored by BC MPs Randall Garrison and Hedy Fry have been introduced in the current Parliament, but don’t seem to have gone anywhere.

Provincially, a private member’s bill was introduced by Vancouver-West End MLA Spencer Chandra Herbert in May 2011, but it only made it past first reading. Chandra Herbert’s bill would have amended BC’s Human Rights Code to provide trans people with express protection from discrimination in various settings (e.g. at work) and under various circumstances (e.g. when accessing services customarily available to the public) within provincial jurisdiction.

Where does all this leave us, here in BC and across Canada? Behind where we should be.

Outside of Canada, in places like the United States, Australia and South Africa, laws and regulations expressly prohibiting discrimination against trans people have become increasingly common. Yet here at home, despite a number of past and present private member’s bills in Ottawa, Victoria and elsewhere, the Northwest Territories is currently the only jurisdiction in Canada that expressly protects trans people under human rights legislation. Statutes in other jurisdictions, including BC, remain silent.

Fortunately, courts and tribunals across the country have spoken up, finding that trans people are implicitly protected from discrimination on the basis of gender identity under human rights law.

But implicit protection doesn’t cut it. It has long been recognized that there are good policy reasons for adding gender identity and expression as enumerated grounds of discrimination under human rights legislation. As the Ontario Human Rights Commission noted over a decade ago, “there are, arguably, few groups in our society who are as disadvantaged and disenfranchised” as trans people. Adding gender identity as an enumerated ground would ensure that “there would be no doubt legally or politically that [trans] people have the same protections as everyone else.” Conversely, according to the 2000 Canadian Human Rights Act Review Panel, leaving gender identity out of human rights legislation fails “to acknowledge the situation of [trans] individuals and allows their issues to remain invisible.”

For these reasons and others, BC’s (now disbanded) human rights commission was the first in Canada to propose adding gender identity as an enumerated ground of discrimination. It’s well past time our provincial government and its counterparts across Canada finally do the right thing and adopt this proposal.

* * *

Non-authoritative definitions:

“Gender identity” refers to a person’s basic sense of being male, female, or of indeterminate gender.

“Gender expression” refers to the communication or presentation of a person’s gender through external characteristics and behaviours.

“Transgender” (or “trans”) refers to the broad spectrum of people who identify with a gender category (e.g. male, female) other than the one assigned at or around the time of birth; that is, the term relates to the behaviour, appearance or identity of people who do not conform to culturally defined norms for people of their assigned gender.

Earlier, Les had served as Solicitor General until losing his post during an RCMP investigation of land deals in Chilliwack.  The Special Prosecutor in the Les investigation found the former Minister not criminally responsible and recommended charges instead against an official who reported to Les as Mayor.  Here is what the Special Prosecutor had to say about the attitude to following the law in Chilliwack:

11.       The evidence presented by the investigators disclosed that during Mr. Les’ tenure as Mayor, a “pro-development/can do” culture was fostered within the City of Chilliwack’s Development and Planning Department. The evidence indicates that Mayor Les and most members of Council embraced this pro-development philosophy such that staff were encouraged, both directly and subtly, to adhere to what was described as an attitude of innovation and creativity within the City of Chilliwack’s Development and Planning Department, particularly with respect to the processing of applications for development.

 12.       This pro-development philosophy of Mayor Les, Chilliwack’s Council and Chilliwack’s Senior Administrators in the material timeframe, as manifested by the encouragement to staff to find creative solutions to facilitate development, resulted in a number of recommendations and approvals made by Chilliwack officials that did not adhere to Chilliwack’s own planning and growth objectives as set out in Chilliwack’s Official Community Plan, did not comply with Chilliwack’s municipal bylaws and/or did not comply with provincial statutes or regulations, including the ALCA.

 13.       The members of Chilliwack’s Planning and Development Department were encouraged to consider government regulations and municipal bylaws as guidelines only, with the goal of finding creative ways to “make development opportunities happen”.

 It appears that the attitude that laws and regulations were only guidelines was good enough for Chilliwack under Mayor John Les.  Is this a good enough ethical standard for Cabinet Ministers and Parliamentary Secretaries?  Or has the Premier decided he wants a “can do” kind of guy to sell the HST regardless of what rules get bent?

This was not the only issue in the shuffle.  Already, one newly transferred Minister is being accused of conflict of interest.  West Coast Environmental Law has obtained a memo showing how the new Ministry of Natural Resource Operations is — in the words of WCEL — “more about facilitating access to natural resources (even the bizarre CEO title has the ring of getting business done, private-sector style) than about ensuring appropriate protection of the environment.”  And finally there is the switch in the bureaucracy which sees the Premier’s political chief of staff becoming a deputy minister while a former deputy minister and ICBC boss becomes his new political chief of staff.  Remember when the Premier complained in opposition about the politicization of the public service?

Take for example the single-mindedness with which the province pursues welfare “overpayments.” As the BC Public Interest Advocacy Centre (BCPIAC) has extensively documented, the Ministry of Housing and Social Development routinely takes welfare recipients to court in an attempt to recover benefits paid in error or through alleged fraud.

Setting aside the fact that most of these cases don’t stand up to scrutiny in court, and the fact that our government is spending money  chasing after people whose incomes range between $600 and $1,300 per month, what’s ironic (in the way that makes me want to throw something) in relation to the BC Rail trial is that these very welfare recipients are not eligible for legal aid. That’s because the provincial government eliminated poverty law legal aid during its slashing of civil legal aid funding in 2002-04. (Poverty law legal aid used to be available to low-income British Columbians for help with legal problems related to housing, welfare benefits, debts, disability pensions, etc.)

So unlike the Basi-Virk duo, these welfare recipients have to make do without the help of a publicly-funded lawyer, despite the fact that, according to BC PIAC, many “have barriers to comprehending and effectively responding to legal proceedings, including poverty, disabilities, literacy, and language barriers.”

And it’s not just poverty law legal aid that’s been cut. Access to family law legal aid has also been severely restricted, to the point of systematically denying women who can’t afford a lawyer access to justice. According to West Coast LEAF Executive Director Alison Brewin, the results have been “devastating.”  In an article published by LEAF and the CCPA, she said:

Without adequate legal representation, women are losing custody of their children, giving up valid legal rights to support, and being victimized through litigation harassment. They are spending endless days navigating a complex legal system — researching and preparing legal documents, appearing without a lawyer for highly charged divorce and custody cases, and agreeing to settlements that are not in their own or their children’s interests.

She wrote that article in 2004 — before the latest rounds of cuts. Things have gotten so bad that six of the province’s most prominent legal organizations (including the Law Foundation of BC, the Law Society of BC and the Canadian Bar Association’s BC Branch) launched a Public Commission on Legal Aid this fall, in a bid to draw attention to the inadequacies of BC’s legal aid system and develop recommendations on how to fix it.

To put the $6 million cost of the Basi-Virk legal fees in context: it is equivalent to nearly 9% of the 2009/10 provincial government grant to the Legal Services Society (which provides legal aid in BC). 9% of the of funded legal aid cases in that same year is 3,666.

There is something very wrong here. If only the thousands of people who need but can’t access legal aid could just send their lawyers’ bills to a special prosecutor.

“For groups to be scared to speak up about the government…or scared to know what they could and could not do, is really bad. It was not a good feeling.”

The idea that everyone should be able to speak freely and that citizens should have access to a broad range of viewpoints are two fundamental principles of a democracy — and never are they more important than during an election. Yet the words quoted above — from the leader of a respected local charitable organization — speak to a very different reality, one that many non-profit groups experienced in the lead-up to the 2009 provincial election.

How did this happen? The answer goes back to legislation enacted in 2008. Bill 42 introduced new rules governing third party election advertising – meaning advertising by individuals and groups other than political parties and candidates. The rules capped third party spending at $150,000 province-wide, and $3,000 within a single constituency.

According to then-Attorney General Wally Oppal, these rules were needed to create a more level election playing field, to prevent “the hijacking of the process by wealthy participants.” Bill 42 set off a storm of controversy, most of which focused on the implications for “big spenders” – those groups most likely to spend money on election ads, such as corporate interests and large unions.

In the lead-up to the election, however, we heard from several small charities and non-profits that they were struggling to figure out how the new rules would affect them, and in some cases were self-censoring as a result.

The problem is twofold. First, Bill 42’s definition of election advertising casts an extremely wide net. It captures all kinds of activities most people would not likely think of as advertising, such as free or low-cost tools like websites, social media, email, petitions or public forums.

The definition of advertising also includes public communication that takes a position on any issue associated with a political party or candidate. Which in practice means just about anything under the sun.

Second, there is no minimum threshold below which a third party need not register with Elections BC. Even if a group plans to engage only in free or very low-cost activities, it must first register and be publicly listed on Elections BC’s website as a third party advertiser.

“We met in each others’ homes, in our living rooms, and we do it all for free…it’s a completely inappropriate law for a group like us.”

In practice, this means that in the lead-up to a provincial election, a group of citizens concerned about any number of public policy issues is required to register with Elections BC before it starts a Facebook group or distributes leaflets to neighbours, for example. And for non-profits, charities, coalitions and social service agencies, it means information and analysis of government policies long posted on their websites is suddenly redefined as election advertising when an election draws near.

“There’s a fine line between advertising and promotion, and then education and information sharing. And that’s where our efforts as an organization are – trying to spread information so that voters can make educated decisions.”

In late 2009 and early 2010, we conducted research with 60 non-profits, charities, coalitions, unions and citizen’s groups to find out if the problems we heard about leading up the election were more widespread.

Of the organizations that took part, about one third self-censored during the election campaign directly as a result of the third party rules, and not because they’d spent anywhere near the limits.

In six cases, groups kept their heads down because they did not want to be labeled as “advertising sponsors,” which they felt posed a serious risk to their non-partisan reputations or charity status. In other cases, groups had difficulty interpreting the rules and decided to err on the side of caution.

“We did limit what we did because we were scared of the rules and screwing it up…People just go so overwhelmed by it they didn’t do anything.”

The activities these groups censored had little to do with commercial advertising. For example, nine groups did not post new materials on their websites during the campaign, and four went so far as to remove previously posted materials. Four refrained from issuing or endorsing a call for changes to government policy or legislation. Five avoided commenting in media stories. Four cancelled or decided not to proceed with public events (in two cases, these were all-candidates forums). The list goes on.

Other organizations did not self-censor, but diverted extensive time and energy to figuring out the new rules and second-guessing their actions. For groups with only one or two staff members, or no staff at all, this was a waste of precious resources.

The clearest indication that these rules missed the mark, however, comes from the 232 disclosure reports filed organizations registered as third party sponsors for the 2009 election. It turns out that more than half of them spent a paltry $500 or less during the campaign, and more than three quarters spent less than $2,000.

The citizens of British Columbia were deprived of the full range of voices that would normally be heard during an election as a result of the new third party rules. Yet the groups most impacted by them – the small spenders – are also the least able to mount a costly court challenge. We need the provincial government to fix the law, and soon.

– To find out more, check out Election Chill Effect here.

In his column Dr. Paul Martiquet reports that in BC the minimum age for working a regular job is 12 – the lowest of any jurisdiction in North America.  This resulted from changes in the Employment Standards Act in 2003.  Before that anyone under the age of 16 required permission from the government to work.

Now the Employment Standards Branch no longer keeps track of where children work.  All that is required is the permission of one parent and most parents have little or no knowledge of the dangers on a work site.

WorkSafeBC does keep track of injuries and Dr. Martiquet reported a tenfold increase in injury claims among 12 to 14 year olds between 2005 and 2008.

This is not the first report on increasing injuries among children on the job.  Last October the BC Child and Youth Advocacy Coalition published a report on the subject.  Cuts are the most common type of injury for children followed strains, dislocations and fractures.  Most of the children are reported to be working in accommodation and food services but some work in genuinely dangerous industries such as agriculture, and construction.

WorkSafeBC told the CBC that the tenfold increase in injured children to 2008 had declined in 2009 to a fivefold increase thanks to the failing economy.  Apparently things were so bad in 2009 employers could no longer afford to hire as many 12 year olds at the $6 sub-minimum wage. 

The news about injured children should not come as a surprise.  In 2004 Helesia Luke and Graeme Moore published a report for the CCPA that looked at the implications of reduced regulation for child labour.  The report looked at education and the exploitation as well as health and safety issues.

Helesia and Moore pointed out that young workers between the ages of 15 and 24 were already far more likely to be injured than other workers for a variety of reasons including inexperience and lack of training.  They concluded:

It is logical to assume that children under 15 will be at least, if not more, affected by the same characteristics that increase the risk of injury to those 15–24. An increase in the number of children working, without an increase in training or supervision, may lead to many more job related injuries, especially when there are no prohibitions against children working in hazardous occupations.

Dr. Martiquet concluded his column with the following: 

It seems strange that children can be used to fill jobs in this way.  Age 12?  Age 13? When will they get to be children?  B.C. should honour the United Nations Convention on the Rights of the Child: the minimum work age should not be lower than the age for finishing compulsory schooling (15 typically), children may do only light work as long as it does not threaten their health, safety or hinder their education and training.

Denham’s biography shows she has a strong background in privacy issues.  From 2003 to 2007 she worked on private sector privacy law in Alberta.  Since that time she has been Canada’s Assistant Privacy Commissioner.

In 2009 Denham and the federal Privacy Commissioner went after Facebook for the way it handles personal information.  Last summer she issued a report that found Facebook to have broken Canada’s privacy laws.  That August Facebook agreed to make changes but in January 2010 the Privacy Commissioner launched another investigation because of more changes to the social network’s privacy settings.  In April of this year Canada’s Privacy Commissioner and nine international colleagues warned giant internet companies to respect privacy rights of people around the world. 

Privacy Commissioners aren’t the only ones upset about the casual attitude towards privacy by the big social networks.  PC Magazine says:

Achieving maximum privacy on Facebook now requires you to click through 50 settings and more than 170 options. And even that won’t completely safeguard your info.

The Electronic Frontier Foundation has called for Facebook to follow its own principles when it comes to privacy.  And on May 21^st the Wall Street Journal reported that Facebook and other networks were sending data to advertising companies that could be used to find names and personal information. 

Here is where policy issues become personal.  I am a Facebook user.  I keep a very limited group of “friends.”  Recently two of my friends have quit the network because they could no longer tolerate Facebook’s dictatorial and intrusive demands about personal information.  Apparently they are not alone.  News reports say that Google Canada reports the top online search related to “Facebook account” is “delete Facebook,” I respect the principled decision to leave and have thought about doing it myself.  But in the last week I have also reconnected with two friends I had lost contact with years ago.  I don’t want leaving to be my only choice. 

Companies like Facebook and Google cannot be trusted to protect our personal information or to make it easy for us to do so.  There is just too much money to be made selling our information.  The only thing that will protect us is privacy laws.  So that is why I was glad to see the work Elizabeth Denham did on this in Ottawa.  I hope she keeps up the work here in British Columbia.

In replacing David Loukidelis she has big shoes to fill.  He took tough stands against government policy both on the issues of privacy and Freedom of Information.  Denham’s stand against Facebook leads me to hope the Legislature made the right decision in choosing her.

You need to register with Bid BC to see the actual documents but you can see a summary of the project in the Journal of Commerce. 

In the 2009 provincial election the pretrial centre was a contentious issue.  The province wanted to impose it in Burnaby against the wishes of local citizens.  It was one of the issues that cost Liberal MLA John Nuraney his job.  The project was subsequently moved to Surrey.

 The RFQ document shows this will be one of Partnerships BC’s Design/Build/Finance/Operate P3s.  The RFQ says:

It is anticipated that the Authority will make progress/milestone payments during construction (the amount, timing and terms and conditions of which will be set out in the RFP, but which are anticipated to be in the range of 40-50 per cent of Project capital costs). Project Co will be required to provide all other required funding for design, construction, finance costs and maintenance, by way of equity and/or debt financing.

The pretrial P3 doesn’t actually plan to put guns in the hands of the private prison operator.  Aside from helping to finance the jail the private operator will provide the following services:

i. General Management Services;

ii. Plant Services;

iii. Environmental Services;

iv. Grounds Maintenance and Landscaping Services;

v. Help Desk Services;

vi. Utility Management Services;

vii. Waste Management and Recycling Services; and

viii. Pest Control Services

BC is not the first jurisdiction in Canada to look at private prisons.  The Canadian and Ontario governments have looked at private facilities.  New Brunswick experimented with a privately operated prison before returning it to public management.  The United States has turned to private prisons to house their skyrocketing number of inmates.

There are many studies in the US looking at issues with private prisons.  Some of the issues involve low paid workers,  understaffing, staff turnover and mistreatment of prisoners.  Despite this, there is little evidence of savings. 

There is an increasing volume of evidence here in BC and in other provinces that P3s cost more than public delivery – see here, here, here and here.   But giving corporations powers over prisoners is a different matter, I would argue, much like giving churches power over residential schools.  Accountability is a serious issue with P3s and accountability is critical when we as a society take complete control of someone’s life.

When a private company finances a prison this gives them a say in its operation, even if their employees are limited to the gardeners and pest control staff.  And it opens the door to the American style of complete private management of prisons.

Personally, I think Loukidelis’s leadership was almost completely responsible for BC’s FOI legislation keeping any credibility.  When the legislation was introduced under the NDP government it was considered among the most progressive in the world.  Then the Commissioner’s Office faced funding cuts under both NDP and Liberal governments.  Understaffing has meant getting decisions can take years. Bad interpretations of the legislation whittled away at clauses that should have guaranteed access to government information.  Liberal amendments increased timelines and the burden on applicants.  Whole new areas were declared out of bounds while BC Ferries was reorganized as a private organization and out of reach of FOI.

Despite this, Loukidelis faced the Campbell government down on a number of issues.  His opposition was largely responsible for stopping amendments that would have moved the government’s privatization schemes completely out of reach of FOI.  His determined criticism forced major changes to the privacy of BC medical information handed over to private American companies to manage.  He ruled that former Deputy Premier Ken Dobell had breached the rules respecting lobbying.  He also initiated a change in procedures that cuts months out of the FOI process when public bodies just refused to acknowledge or answer requests (deemed refusal).

I violently disagreed with some decisions of his office when I was on the wrong end of them, but on the whole I think he stopped the legislation from becoming a bad joke.

As a public servant for 10 years he acted with principle and according to how he saw the law.  If he keeps this up the Liberals might well have cause to regret appointing him as deputy attorney general.

With Loukidelis’s departure the legislative review of the FOI Act becomes even more important.  This review is required by the Act every six years.  In 2004 a committee made up almost entirely of Liberal MLAs put forward proposals that would have strengthened the role FOI played in government accountability.  The government ignored the report.

Another good report from this committee would be helpful in keeping the possibility of good FOI legislation alive.  If you think our FOI legislation needs to be improved make a submission to the committee.  The deadline for submissions has been extended to February 28.  You can find out all about the committee and its work here.

Dave Schreck has an example of a good, short submission to the committee on his website dated January 12 that is worth looking at.