[Editor's note: Two sweeping pieces of BC legislation shielding government from public scrutiny are headed for vote any day. Yesterday, Freedom of Information expert Stanley Tromp analyzed Bill 30. This is the second of two parts.]
When Gordon Campbell's BC Liberal government came into office in 2001, it forecast a deep deficit and pledged to avoid it. The BC Liberals cut most ministries' budgets by an average of 25 percent, and in 2002, the government eliminated the offices of the Children's Commissioner and the Advocate for Children, Youth and Families.
That year, Port Alberni, B.C., toddler Sherry Charlie was tragically beaten to death by her uncle, Ryan George, after being placed in a kith-and-kith arrangement by the government-delegated aboriginal agency Usma.
The social workers did not complete their background checks on George until after the 19-month-old girl was in the home. His criminal record check wasn't finished, and his violent history discovered, until after her death. George first claimed that Sherry's older brother had pushed her down the stairs. But he later confessed to kicking the little girl to death because she wouldn't stop crying. He pleaded guilty to manslaughter in 2004 and received a 10-year prison sentence.
Sherry Charlie's tragic case placed intense focus on the Ministry of Children and Family Development. The government hired a respected former judge, the Honourable Ted Hughes, to study the child protection issue and issue an independent report which took almost three years to be made public.
Upon its release, Hughes said that children got caught in the crossfire. "I don't think there's any doubt that the core review of 2001 and 2002 took the knife too far," he said. "I just think they were wrong." Hughes's investigation also uncovered 249 additional child death files that have not been properly handled by the B.C. Coroners Service, bringing the total to 955.
Usually, any government given such a scathing report would insist it needed time to study it, but not here.
Instead, about an hour after the report was made public, Children and Family Development Minister Stan Hagen meekly submitted to the rebukes, while accepting without question Hughes' criticisms and 62 recommendations for changes. This year, the government agreed to restore the position of children's commissioner. It had been a humbling and harrowing experience for the administration and it was shamed into reversing its course.
Last week, the Campbell government found a simple way to cope with painful truths: bury them.
Bill 23's troubling measures
Although Ted Hughes' review was not technically set up under the Inquiry Act, its result was most likely the catalyst for Bill 23.
Under this bill - which is triple the length of the old act - a commission of inquiry will not be able to issue its report to any person other than the minister and cabinet will have the power to decide if a report from a public inquiry will be released.
Using Orwellian Newspeak, this secrecy statute alters the name "Inquiry Act" to read the "Public Inquiry Act." "This act takes both the 'public' and the 'inquiry' out of public inquiry," said B.C. Civil Liberties Association President Jason Gratl. "It's nothing more than a scheme to thwart independent oversight and government accountability."
"I can't help but question why the government wants to limit the scope and role of public inquiries" said NDP MLA Leonard Krog. "When you review the changes, you can't help but ask yourself why these amendments are necessary now or ever."
These are amongst the most troubling features of Bill 23:
- In the former act, the report upon completion must be issued to the legislature (hence, the public) within 15 days. The new Section 29(2) sets out that "a commission must not release its report to any person other than the minister."
- The bill will exclude the courts from reviewing orders made by commissions in the course of a public inquiry.
- Section 5 allows the government to terminate a public inquiry or change its terms of reference at any time before a commission issues its final report. The federal government cut short the Somalia inquiry, as did the B.C. government to the Nanaimo-Bingogate inquiry chaired by Murray Smith, but neither ever before granted itself such a power in a statute.
- The bill limits the powers of public inquiries by creating two types of inquiries - "study commissions" and "hearing commissions." Each commission will have a very limited range of investigative powers.
- Under the current system, the powers of a commission once struck are set out in the legislation, whereas, under the bill, the cabinet can set those powers. So for example, the power to compel people to attend and answer questions is subject to cabinet approval. Hence, cabinet can hamstring and disempower these commissions. Krog says that this section "again compromises the independence and effectiveness of the public inquiry process." Under the previous act, government had authority only to make regulations in regard to compensation levels for commissioners and witnesses.
- One can no longer make a Freedom of Information Act request for most papers processed by the inquiry, including communications or draft reports of the commissioner, and hearing transcripts. Although cabinet might choose not to release the final report publicly, a citizen apparently still can make an FOI request for it. But it would likely be withheld anyways, under FOIPP Act section 12 ("cabinet confidences") or maybe even section 13 ("policy advice"). There is one bright spot in the bill: the FOI ban does not apply to personal information "that has been in existence for 100 or more years."
- Section 2(1) sets out that cabinet may, by order, establish a commission to inquire into and report on a matter that cabinet "considers to be of public interest." This makes the section more ambiguous and may allow government to narrowly interpret under what conditions an inquiry should be called. The former act is much more explicit in outlining what types of issues may be reviewed by an inquiry, that is, "Inquiry into the Conduct of Government."
- Sections 21-25 of this bill create two types of inquiries - study commissions and hearing commissions. Each has only a limited range of powers and mechanisms to investigate. The choice to set up a "study commission" could be misused by government to avoid a finding of wrongdoing.
- Section 29 sets out specific criteria upon which cabinet can refuse to disclose portions of a report IF it already decided to release it, and yet there are NO criteria for making the decision to bury a report in its entirety. (If cabinet wants to release the report to a person, it must withhold those parts that could "interfere with the person's personal or financial privacy rights," or is otherwise impair "the public interest.")
- To avoid civil lawsuits, the government grants itself "immunity protection." That is, under section 33, no legal proceeding for damages may be launched against the government or a commission for anything performed under the act. (This rule could lead to a Charter of Rights challenge. Some people named in the Nanaimo Bingogate inquiry went to court to complain their rights were being violated by the process.)
- Under section 9, commissioners "must not disclose to any person any information obtained as a commissioner." This presumably could include information contained in a final report that cabinet keeps secret. (At the time, Hughes pledged that if the government didn't do something to fix the problems soon, he would take his concerns public, speaking across the province in an effort to shame the B.C. government into action. Under Bill 23, if Hughes spoke out on a secret report's findings, he could be acting illegally.)
To be fair, however, there are three sections of Bill 23 that some could view positively. A commission may receive information whether or not it would be admissible in a court; a commission order is final and not reviewable by any court; a commission can apply to a court for a warrant to conduct an inspection of a private place, including copying any records found there.
What could have been secret under Bill 23
If they had been set up under the new Public Inquiry Act, these are some inquiries whose final reports could have been kept secret. Consider if the public interest would have been served.
1) The 1955 report released on the Tupper public inquiry into police corruption (prompted by reporter Ray Munro, who revealed the bribery schemes of Vancouver Police Chief Walter Mulligan). This new Bill 23 transports us backward to the Dark Ages of public accountability, to some era before the 1950s. In fact, says NDP MLA Leonard Krog "Since 1897, public inquiries in BC have been compelled to report to the Legislative Assembly."
2) The Coquihalla Highway construction cost overrun public inquiry, 1987. The report found that the highway cost two-thirds more than the budgeted $250 million.
3) Conflict of Interest Commissioner Ted Hughes' report on Premier Bill Vander Zalm's conflict of interest in the Fantasy Garden theme park, 1991 - which led to the premier's resignation.
4) B.C. Court of Appeal Justice Wally Oppal headed a public inquiry into policing and issued his report entitled "Closing the Gap: Policing and the Community" in 1994. Ironically, the same Wally Oppal as attorney general is now pressing Bill 23 through the house, which could have been used to bury his own policing report.
5) Report of the Justice Thomas Gove Inquiry into Child Protection in British Columbia, 1995. This report, prompted by the tragic death of child Matthew Vaudreuil, found serious gaps in the B.C. child protection system, as today.
6) The report of the Dave Barrett public inquiry on leaky condos, 2000. This was set up to find out why the builder-owned New Home Warranty Program failed, leaving hundreds of owners of leaky condos with worthless warranties worth $130 million.
7) In June 2001, Liberal Attorney General Geoff Plant halted the Murray Smith Commission into the so-called Bingogate scandal (that involved allegations of charity skimming by the New Democratic Party during the 1970s and 1980s under David Stupich), claiming the public inquiry was growing too long and costly.
The inquiry was killed days before Smith was due in court to see if he had the authority to make adverse comments about individuals. He had issued notices of adverse findings to 22 people; eight of them had challenged his right to do that, saying it could destroy their reputations. Smith was shocked by the termination, called for public protest, and said the Campbell government "sounded the death knell" for public inquiries in B.C. (Bill 23 might have some roots in this event.)
Smith had not completed his report by then, and a B.C. Supreme Court justice ruled the incomplete findings of Smith's government-ordered probe must remain exempt from FOI requests and sealed from the public (which it still is - disgracefully - to this day). The information commissioner advised its release, but the government appealed and won. Yet, if the report HAD been completed, something like Bill 23 could have been used to seal that one also.
8) Upcoming reviews: last week, Premier Campbell touted plans for lengthy and ambitious public consultations on two issues: health and education. Although it's unlikely they would operate under the Public Inquiry Act (this route being usually reserved for scandals), they could be, and if they were, their final reports could be kept secret.
If federal law were this extreme
In preparing this story, I discussed Bill 23's meaning with six lawyers and most were shocked at the brazenness of it. Imagine the equivalent of the federal government daring to pass a law to keep secret or rewrite the final reports of these federal inquiries:
- The upcoming inquiry on the 1985 terrorist bombing of Air India that killed 329 people
- The Justice Gomery 2005 inquiry on the sponsorship scandal
- The MacDonald and Keable Commissions into wrongdoings by the RCMP Security Service in the 1970s
- The 1994 public inquiry into torture killings by the Airborne Division in the Somalia peacekeeping mission
- The 1997 Krever Commission on HIV-tainted blood. (Many government officials fought pitched legal battles to block the release of the report, objecting to being publicly named as failing in their duties, but the report was released anyways. Under Gordon Campbell's Bill 23, such a report could have been simply buried without any such court action.)
- The 2002 Roy Romanow commission on the future of Canadian health care
- The 1997 inquiry on the actions of police and the prime ministers office arising from violence at the Asia-Pacific Economic Cooperation (APEC) meeting at UBC, Vancouver
- The 1987 inquiry that found Cabinet Minister Sinclair Steven was in a financial conflict of interest
- The 2005 inquiry into the deportation to Maher Arar to Syria
- The Dubbin inquiry into steroid use by sprinter Ben Johnson and others in the 1988 Olympic Games
- For another provincial equivalent (from Nova Scotia's government), consider the 1998 report of the public Royal Commission into the Westray Coal Mine disaster that killed 26 miners - and the public's response if the government granted itself the right to keep the report secret.
Stanley Tromp is FOI caucus coordinator of the Canadian Association of Journalists (CAJ)