Finance and Government Services - Issue No. 23

2001 Legislative Session: 2nd Session, 37th Parliament
SELECT STANDING COMMITTEE ON FINANCE AND GOVERNMENT SERVICES
MINUTES AND HANSARD

Present: Blair Lekstrom, MLA (Chair); Tony Bhullar, MLA (Deputy Chair); Jeff Bray, MLA; Ralph Sultan, MLA; Kevin Krueger, MLA; Barry Penner, MLA; Lorne Mayencourt, MLA; Ida Chong, MLA; Brian Kerr, MLA; Harry Bloy, MLA

Unavoidably Absent: Joy MacPhail, MLA

1. The Chair called the meeting to order at 12:06 p.m.

2. The following invited witnesses made presentations and answered questions:
    • Office of the Information and Privacy Commissioner
          David Loukidelis, Information and Privacy Commissioner
    • Office of the Police Complaint Commissioner
          Don Morrison, Police Complaint Commissioner
          Barbara Murphy, Deputy Commissioner

3. The Committee discussed its process to draft and consider its report to the House.

4. The Committee adjourned to the call of the Chair at 3:41 p.m.

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
FINANCE AND GOVERNMENT SERVICES



CONTENTS

		Page

Information and Privacy Commission		737
	David Loukidelis	737
Police Complaint Commission		750
	Don Morrison	751
	Barbara Murphy	760
Statutory Officers Draft Report		762

Chair:	* Blair Lekstrom (Peace River South L)
Deputy Chair:	* Tony Bhullar (Surrey-Newton L)
Members:	* Harry Bloy (Burquitlam L) * Jeff Bray (Victoria–Beacon Hill L) * Ida Chong (Oak Bay–Gordon Head L) * Brian Kerr (Malahat–Juan de Fuca L) * Kevin Krueger (Kamloops–North Thompson L) * Lorne Mayencourt (Vancouver-Burrard L) * Barry Penner (Chilliwack-Kent L) * Ralph Sultan (West Vancouver–Capilano L) Joy MacPhail (Vancouver-Hastings NDP) * denotes member present

Witnesses:

David Loukidelis (Information and Privacy Commissioner)
Don Morrison (Police Complaint Commissioner)
Barbara Murphy (Deputy Commissioner, Office of the Police Complaint Commissioner)

B. Lekstrom (Chair): Good afternoon, ladies and gentlemen. At this time I will call the meeting of the Select Standing Committee on Finance and Government Services to order. I would like to welcome our guests in attendance here this morning. Just prior to beginning, I will introduce myself. My name is Blair Lekstrom. I'm the Chair of the Select Standing Committee on Finance and Government Services and the MLA for Peace River South.

We are here this morning to hear from our statutory officers, beginning first with David, who is our information and privacy commissioner. Prior to beginning that process, what I would like to do is ask the other members of the committee to introduce themselves. Then I will make a few short comments and turn the floor over to yourself, David.

K. Krueger: Kevin Krueger, Kamloops–North Thompson. I had a much less exciting weekend than Lorne did.

B. Penner: Barry Penner, MLA for Chilliwack-Kent. I wasn't sure we had a weekend.

B. Lekstrom (Chair): What we're doing is a new process this year for the Legislative Assembly and the select standing committee. It's an opportunity for our statutory officers to appear before us with their performance plans, budgets, business plans and annual reports to make that presentation to this committee. We are then asked by the Legislative Assembly to draft a report with recommendations, as we see fit, so that they can be deposited — if the Legislature is not in session — with the office of the Clerk, at which time it becomes a public document. I believe we've had five presentations to date from five of the statutory officers. We will conclude today with the two remaining.

With that, David, I would like to ask you to please take the floor and introduce the people with you. We'll begin the process of hearing your presentation here this afternoon.

D. Loukidelis: Thank you, Mr. Lekstrom. I will introduce on your left, Lorrainne Dixon, who is the executive director in my office. You'll be hearing more about her duties a little later. On your right is Linda Calver, who's the director of finance and administration for our office. Again, you'll be hearing more about what she does a little bit later.

If I might, I would like to echo the Chair's comments about the nature of this process. The officers of the Legislature, as you know, had asked that their budgets be put through this kind of process — a relationship that could be established with the Legislative Assembly with a view to changing the way our budgets are approved. I think that's a good thing. Also, speaking for myself, I think it's a salutary and entirely desirable thing that this process be undertaken for our office. It certainly provides a measure of openness and accountability for our operations as well — accountability for the taxpayer resources that we're entrusted with to use effectively and efficiently and also accountability in terms of the kinds of work we're doing and the services we're delivering. I think the opportunity for dialogue with members of the House will assist us a long way in being accountable and open and in ensuring that we're going about our tasks in a way that responds to the needs of British Columbians and, in fact, implements our duties and functions under the legislation.

On that note, this afternoon I would like to turn first to giving you an overview of who we are and what we do, an overview of the legislation and how it works and of our office, its structure and how we go about discharging our functions and duties under the legislation. Once I've done that, I propose, second, to take you through a couple of the aspects not only of our organization in terms of our allocation of resources as it stands but also some introductory comments about the service plan and budget proposal that you have before you.

I should pause here to note that the document you have before you is for the three years beginning with the next fiscal year. We decided to combine the service plan, which we prepared as far as we could in accordance with Treasury Board guidelines, with our actual budget proposal. This is a two-purpose document, if you will, and at the conclusion of my remarks, including the overview of that document, I will of course be happy to answer any questions that members of the committee might have.

Turning to an overview of the Freedom of Information and Protection of Privacy Act, I have to say it is a title for a piece of legislation that I sometimes stumble over, so I will be inclined to refer to it during my remarks as "the act." It is a piece of legislation that has

two explicitly stated overriding objectives. Section 2(1) of the legislation states that the dual purposes of the legislation are "to make public bodies more accountable to the public and to protect personal privacy…." I would like to give you some sense of how the act functions on the access side of things in the following comments.

The British Columbia legislation really should be viewed in an international and domestic context. It's a piece of legislation that is found throughout Canada now, across the United States and, increasingly, in Europe as well. The one thing that all these statutes have in common is the goal of openness and accountability in governance, in governments and in other public organizations that are subject to the legislation.

The goal of openness and accountability and the importance of access-to-information rights to that end has been recognized time and again by the courts, by governments and by the public. I think, though, it would be useful to quote from a judgment of the Supreme Court of Canada in a case called Dagg v. Canada, which dates from 1997. Mr. Justice La Forest said the following about the importance of access to information: "The overarching purpose of access to information legislation is to facilitate democracy."

It does so in two related ways. It helps to ensure, first, that citizens have the information required to participate meaningfully in the democratic process and, secondly, that politicians and bureaucrats remain accountable to the citizenry. Access laws operate on the premise that politically relevant information should be distributed as widely as reasonably possible.

Rights to state-held information are designed to improve the workings of government, to make it more effective, responsive and accountable. Accordingly, the right of access to records in the custody or under the control of a public body is a tool for citizens, for the media, for corporations, for individuals, for political parties, for opposition parties to get access to appropriate amounts of information in records held by any number of the public bodies subject to legislation of this kind.

In British Columbia that statutory right of access to records extends very broadly. There are approximately 1,800 so-called public bodies that are covered by this legislation. They range from ministries and their various agencies through to Crown corporations, health regions and hospitals, universities and colleges, local governments of any description, school boards, the self-governing professions such as the Law Society of British Columbia and the College of Physicians and Surgeons and on down the list. Some of them are more arcane. I know one of them has already been mentioned in previous sessions of this committee on this topic. I'm thinking here of the Okanagan-Kootenay Sterile Insect Release Board, which is also subject to this legislation. That does illustrate for you that there is a very broad coverage.

The way it works is that anyone can come to any of these public bodies and make a request for access — copies, usually — of specified records. The act provides that the public body must deliver up these records, as requested, subject only to "limited exceptions to the right of access." Those are specified in the legislation. I will not take you through them. The legislation does, I think, in a balanced way acknowledge that there are important public interests to be served by appropriate levels of confidentiality.

For example, a public body is entitled to refuse to disclose advice or recommendations developed by or for that public body or for a minister. Solicitor-client privilege documents or information can also be withheld, and there is a whole host of other exceptions, again, that acknowledge that there are important public interests in ensuring a degree of confidentiality.

Indeed, there are exceptions that protect individual privacy of citizens, and there are protections for the interests of businesses that might be engaged in processes with government or doing business with government. The act, again, attempts to achieve a balance between openness and accountability, on the one hand, and preserving an appropriate core of confidentiality for a variety of important interests.

When a public body receives a request for access to records, it must respond within the stipulated time. There is a time line prescribed in the legislation with the opportunity for the public body to extend, where necessary, to consult with other parties and to search for records where a large number of records might be involved, but they must respond within time. It should also be said that public bodies have the authority to charge fees for access. I speak here of fees for search time, for copying of records, the preparing of records for disclosure. There are certain exceptions to this ability, but it is there and has been since the outset of the legislation.

We became involved because the decision was taken, as it has been taken elsewhere in Canada — notably federally, in Ontario, in Alberta and indeed elsewhere in the country — that there ought to be a review mechanism for compliance by public bodies with the right of access, and the decisions that they take to withhold information in response to particular requests. The mechanism, of course, is independent oversight. That's really my function and the function of my office: to provide that appeal function that is independent of government. For that reason, obviously, I am an officer of the Legislature. I'm accountable to the Legislative Assembly, the legislative branch of government, and not to any part of the executive. I report to no minister, and I have no responsibilities in that respect.

The way the right of appeal functions is that anyone who is dissatisfied with a public body's response is entitled to come to our office and lodge what's called a request for review. I will call it an appeal for today's purposes. When that happens, the file will be assigned if it's found to be within our jurisdiction. As you'll see later, a large number of the contacts we get from the public prove to be non-jurisdictional, if you will. We do devote some resources to assisting the public in that respect, as I'll detail later. The file will be assigned by one of our two intake officers or, if they're not able to

deal with it directly — as they sometimes can't — to one of our so-called portfolio officers. These portfolio officers are individuals in the office who are essentially caseworkers.

When an appeal comes in the door that portfolio officer will go out, gather up the disputed records, contact the public body, contact the applicant or the appellant — we call them applicants. They will basically try and mediate a resolution of the appeal — deal with the matter through an alternative dispute resolution process, if you will. Often this involves the portfolio officer coming to a conclusion based on precedent — previous decisions that I've made or that have been made elsewhere in Canada — as to whether or not the appropriate decision was made. In some cases public bodies will disclose further information as a result of this mediation process. In other cases, they won't. Either the portfolio officer successfully mediates a conclusion to the matter, or it ends up on an appeal before me.

I should say at this point that we mediate or otherwise dispose of 91 percent of the appeals that we get. We're up to 853 appeals as of November 15 of this year, whereas we had 823 for the entire calendar year of 2000. Of those, 91 percent go away in mediation, which leaves the remaining 9 percent to come to me on a formal appeal, which is known as an inquiry under part 5 of the act.

Basically, we do all of those in writing. I spent two days last week on an oral inquiry. I've done one other one in the 2½ years since I've been commissioner. I find it's much more efficient in terms of our own resources and those of public bodies, generally speaking, to do these things in writing. What that entails is that a notice of written inquiry goes out. Our registrar of inquiries then takes over the function basically, and generally speaking, in the case of public bodies, the parties will retain counsel. They will prepare written arguments and affidavit evidence and submit those through the registrar. Eventually the materials find their way to my office, and I will literally sit in my office, study the materials, assess the evidence and come to a decision which I will render by way of a written order, as they're called.

I should mention, as well, about the mediation function, because it's important, I think, to some of the pressures that we face in our office. It is this. The legislation provides, first of all, that when an appellant comes in the door, if that person refuses to settle the matter, they can force it to go to an inquiry. We have no ability in the mediation process to say: "No. The matter is well settled. There is nothing new to be decided here. You have no merit to your appeal. You must go away." That person can force a formal inquiry process. The legislation also now provides that once the inquiry has been held, I must issue a written decision. I must make an order. I have no discretion not to do that.

Another point to make is that the legislation gives us only 90 days to mediate a solution or to conduct the inquiry. So internally, we have set a time line of 68 days for mediation. If the matter is not settled at that point, an inquiry notice goes out and the remaining 22 of the 90 days are taken up with the exchange of submissions. The parties make initial submissions, and there's a right of reply and so on. We have to keep within the legislated time lines in order to simply comply with the law and provide the service that is expected of us through the legislation.

On the privacy side of things, as I mentioned, the legislation has a second goal. That is protecting personal privacy. Effectively, what is does is limit the ability of public bodies to collect, use and disclose personal information about citizens. It imposes rules that are often described in international parlance as fair information practices or principles. It basically says that the ability of public bodies — of the state, if you will — to compel citizens to give up information about themselves must be exercised only in accordance with part 3 of this legislation. What the legislation says is that a public body may only collect personal information from any of us if — a primary example — that information is necessary for an operating program of the public body. A public body cannot — for example, for potential use down the road or out of idle curiosity — compile detailed dossiers on all citizens. There is that criterion of necessity, which I think appropriately limits the ability to collect personal information. On the other hand, it doesn't unduly tie the hands of public bodies when it comes to getting the information they need to discharge their functions.

There are similar rules about limitations on use of the information you've collected appropriately and how you go about disclosing it as well. These rules about collection, use and disclosure that are laid out in part 3 will trigger our involvement if a citizen believes that his or her personal information has either been collected, used or disclosed inappropriately. If that's the case, they can complain to the office of the information and privacy commissioner about what they perceive as a breach of the legislative requirements.

Effectively, the same process is followed when it comes to the intake of these complaints, of which we get roughly 100 a year that are within our jurisdiction. They come in through our intake officers. If they consider that the matter is indeed jurisdictional, it's something that we have authority to address. If they cannot deal with the matter informally at the outset, it will be referred to a portfolio officer who will investigate the matter through contacting the public body involved and having gathered all of the facts that the applicant — the complainant — says are relevant and true. The portfolio officer will come to a conclusion as to whether or not the legislation was complied with or not.

Here, the difference that should be underscored is that, of course, I don't necessarily get involved. The legislation on the privacy side gives us more discretion or leeway, if you will, to handle these things through the portfolio officer. The portfolio officer will almost invariably dispose of the matter by writing a complaint decision letter and will either uphold the complaint or find that it's not substantiated. When those letters are drafted, a peer review process is undertaken. Another

portfolio officer will look at the matter and sort of sign off on the conclusions and recommendations. I'll come back to that in a minute. Also as a matter of practice, Lorrainne Dixon reviews all complaint letters before they go out of the office. It's a quality assurance thing as much as anything else. When these letters go out, they contain recommendations in cases where we think that something inappropriate was done so that the public body can improve its practices and can change its ways, if you will.

Technically, I have the authority under the legislation to order a public body to change its information-gathering or -use practices. Since the legislation was enacted, we have not done that. We've found that there has instead been a very good — I'd say in fact excellent — record of compliance to our recommendations by public bodies. I think that for the most part, since these privacy matters tend not to be matters of malicious intent but really inadvertence or lack of training and things like that, it's much better to work in a more consultative role. Obviously, the ability to order them to change their ways is, I think, a useful backstop. They're well aware that it's there, and it may be something that has to do with the relatively good compliance rates we have.

From time to time we will issue what's called an investigation report. I issued one roughly six weeks ago to do with a complaint about a contract between a large urban teaching hospital and a private sector provider of patient care information services. The complaint was that the contract for those services didn't comply with the privacy requirements of the legislation, which was ultimately our finding — although we found that in practice the parties had appropriately implemented compliant practices for dealing with patient information. This is an example of a situation where systemic or larger policies issues are raised. I may become involved in the investigation of the privacy complaint, and the parties will then be given opportunity to comment on the draft findings before the findings are issued. We issue that in a much more public fashion, again, by way of instruction for not only the public body involved but, really, for the larger public, for citizens and others who may be interested in the policy issues that have been raised by the matter.

Turning to our other roles under the legislation. So far this has been an overview of our mandated functions, if you will. I think it's important at this point to underscore that in very large measure we are reactive by design. People come to us with access-to-information appeals because they're unhappy with a decision that's been made. We must provide that service. There are very clear rules laid down in the legislation, and in effect we function as an administrative tribunal and have duties that go along with that status or that nature of our office. We do follow the legislation in a reactive way because that is what's expected of us.

Having said that, outside of the regulatory function under the access and privacy provisions, we have other roles. Under section 42 of the legislation, the commissioner is generally responsible for monitoring how this act is administered to ensure that its purposes are achieved. As part of that, the commissioner is given a variety of general powers that have to do with public education about the legislation and its objectives, the authority to comment on proposed legislation policies and programs of any public body, and the ability to undertake research about access and privacy matters. That names only a few of the general powers under section 42.

In light of those general powers and the section 2 objectives of openness and accountability in privacy protection, the office engages in a variety of activities that are intended to achieve the goals of the legislation, notably — because these activities, I think, underpin public body compliance — by educating them; providing them with up-to-date information on decisions under the legislation; providing them with guidelines and working rules or policies that they can adopt, if they see fit, to help them better comply with the legislation; and also commenting on proposed legislation. That is the first of the other activities that I would like to draw your attention to.

We are regularly asked by government to comment on proposed legislation programs or policies. Any one of the portfolio officers, Lorrainne Dixon or myself, will regularly, on a weekly basis, be called upon to consult with one or another of the ministries about something they're proposing to do. They basically want to run it by us, if you will, to get our views often on the privacy implications of what they're proposing to do. These are relatively informal consultations. We're always careful, of course, to make it plain that by providing our views, we're not purporting to direct how they do things, nor are we in any way limiting our ability to respond to a complaint if things actually proceed as the ministry or other public body proposes to do.

We provide guidelines, as I mentioned. Recently, in the wake of that investigation report about the patient care information system, we published on our website guidelines for the contracting-out of data services. It's a relatively lengthy, detailed document that is designed to be used by public bodies that are thinking of finding alternative models of service delivery — primarily when it comes to data services using personal information — on how to negotiate the appropriate privacy protections into their contracts before they're signed off on, the notion being, of course, that as a public body you don't contract out your liability under the legislation. You can't put it out to a service provider and say: "Well, we don't have to worry about that anymore because it's not being done by us directly." Whether it's your employees doing it or your contractors, you have to take care to comply with the legislation. That's the thinking behind the guidelines — trying to be proactive, to give them the support so that they can do things right in the first place and not get into trouble later.

We have got, for example, a privacy impact assessment tool, and that is a kind of risk assessment tool that public bodies can use when they are formulating new programs or policies or even looking at legislative

amendments so that they can design privacy in right at the outset, if you will, and ensure that it's done in a cost-effective and appropriate manner so that they don't get well down the road of system design — for example, software or hardware purchase — and find that they're offside with the privacy aspects of the legislation and have to retool completely or in part. It just doesn't make good sense to us, and so the PIA, as we call it, is intended to achieve that.

I might add here that I was very happy that we used to have our own model PIA on our website, as did the government agency that deals with certain aspects of access and privacy. We were able to work with them and put one tool, jointly fashioned, up on the Web for use by public bodies across the province. I'm thinking of all 1,800 roughly, and not just government ministries.

We have an electronic newsletter that we disseminate widely and cheaply to keep people abreast of developments in access and privacy around the world, as we learn of them over the Web, and to promote, again, good practices amongst public bodies.

We do a lot of so-called site visits, which are really in the order of audits of privacy compliance. We will visit hospitals, for example — and other public bodies, but notably hospitals — and basically do tours of inspection with the staff there to ensure that certainly what we see on the day that we're visiting is in compliance with the privacy requirements of the legislation.

We find these are very popular activities — popular in the sense that they give the appropriate profile to the need to comply with the legislation within the organization. They're a bit of marketing and diplomacy, frankly, as well as a regulatory function. We've been told time and again over the years that these are useful for the staff to be brought up to speed again about what the privacy requirements of the legislation are and how best they can comply.

We're very busy with speaking engagements, lectures in educational institutions. Lorrainne Dixon, later this week, will be speaking to 500 education students at the University of British Columbia. For example, I've spoken to medical students, nursing students, journalism students. Again, the idea in sessions such as these is to ensure that professionals who may be working in a public body context later on — doctors, for example, or teachers, in the case of school boards — are well aware of the access and privacy requirements of the legislation earlier rather than later, so that their day-to-day functions as they're exercised are privacy-compliant and are access-compliant as best we can assure.

We also put on conferences from time to time. We had one in February of this year where over 300 people attended. The idea, again, is to educate and promote best practices amongst public bodies and also to educate the public about the legislation and how it works. That's something else that the newsletter can function as, as well.

We held training sessions and seminars in March and April 2000, and I'm hoping to do it again this spring. I sent teams of portfolio officers, wearing their educators' hats, around the province to give, in effect, training workshops for local public bodies in how to comply with the legislation. The emphasis, again, was on responding to access-to-information requests, on how to organize your public body so you can more effectively comply with the legislation — maybe promoting routine disclosure, for example.

Again, we will be, hopefully, repeating those this spring. We do charge on a cost-recovery basis for our travel and our hotel and other accommodation expenses. Obviously, it is a drain on our resources in terms of the time away from the case files, but one we think is well worth it. But again, we think that promoting best practices will improve compliance with the legislation and ultimately, down the road, mean that we can better manage our resources if we get fewer appeals because better decisions are being made, quite frankly.

Then, in terms of consultation within government, I'm regularly, for example, meeting with deputy ministers, chief information officers and others in the province about policy matters as they arise — proposed initiatives, for example. Lorrainne Dixon does a fair amount of that as well, as I'll be mentioning in a moment.

I'm basically keeping abreast of developments around the world. We do engage, again off the sides of our desks, in research and policy work so that we can be sure that our office — which, again, is assigned the task of being, if you will, an independent office that has expertise in these matters — is truly up to speed on developments around the world both in the formal access-to-information appeal side, which is important to my work personally, and also on the privacy policy side of things.

Now, with that overview, I would like to turn — if you'd care to join me in doing so — to page 13 of our service plan and budget proposal. There you'll find the current organization chart for the office of the information and privacy commissioner. I would like, with your permission, to spend a few moments taking you through that organization chart. I think it will give you a better sense of who we are and what it is each of us does in our day-to-day functions. I've already touched on what it is I do, the statutory functions and responsibilities I have to deal with, access appeals and privacy complaints and the other activities I engage in.

Moving on down the chart, you'll note, first of all — and I'll make this note as an aside, really — that we have an administrative assistant noted there as being vacant. That is the case, and as you'll be hearing in a few moments, what I propose to do is eliminate that position. I will be in a position, I hope, to use the resources for that position to fund some of the cost increases coming through as of April 1, 2002. Again, I'll detail that in a moment.

Moving to Lorrainne Dixon's position as the executive director. She is also, I should say, the executive financial officer for the organization. She is responsible, really, for the office's operations, its proper functioning

in terms of meeting the expectations placed on us under the legislation and carrying out our activities in an effective manner. She does a whole range of things in doing that.

Close to the regulatory function, she does make quite a few statutory decisions week by week. We often get, for example, requests by public bodies for time extensions in responding to access appeals. She does deal with those. She often deals with requests for extension of time within the inquiry process, for example. She gets involved in a variety of statutory decisions in a consultative role, as well, backing up some of the portfolio officers and our intake officers when they're dealing with extension requests.

She is very busy, as well, with essentially the government relations aspect of things. Like me, she is often engaged in consultations with government agencies, ministries and other public bodies on access and privacy matters. She is also busy with the speaking engagements and instructional opportunities that I've outlined already, including the one that I mentioned in Vancouver later this week.

She provides a lot of support and advice to portfolio officers. Lorrainne has been with the office basically since its inception. On a daily basis, every time I look down the hall at her office, I'll almost always see one or another of the portfolio officers in there from time to time, bouncing things off her in terms of dealing with an access appeal or a privacy complaint, and getting her views on the merits of the situation. I think this is — to understate it considerably — a good thing, because it again gives some quality assurance and allows us to ensure a consistency of approach to similar issues as they arise under the legislation.

As I mentioned, she also reviews complaint letters before they go out the door, again with a view to ensuring consistency and quality of our work. There are a variety of other managerial tasks that she undertakes in conjunction with Linda, which I won't detail here. Rather, I will turn to a description of what Linda Calver does as director of finance and administration.

Linda is responsible for the daily operations of the office. She looks after our finance matters — the budgeting primarily, including the numbers that you see before you today. She also is responsible for our network. She has a lot of computer expertise, so that's one of the things she does. Because we have no in-house IT staff apart from Linda, this is one of the hats that she wears, and she works on our network.

I should pause here to note that in terms of how we approach our work, we have a case tracking system that allows us to keep track of the appeals, complaints and consultations, and so on, that we do. We also have software that allows us to use template documents, because none of the portfolio officers — the caseworkers — have any secretarial support. It's been very important for us and, I think, very cost-efficient to have the template document software that allows us to produce a consistent message in terms of the letters that inevitably go out as part of the casework that the portfolio officers do.

Linda is also the head of our organization — as it's called under the legislation — for the purposes of access-to-information requests, because we are a public body under the legislation, and we do get access-to-information requests. I think that one year the peak was 54 requests to us for access to our own records. On average, though, it's closer to six to eight requests a year that we get. Linda will make the decision as the head and will issue an appropriate decision, and if an appeal is taken, it's taken. She also handles general running of the office, making sure that we're appropriately equipped and housed. She deals with BCBC, our landlord, and runs a variety of other functions very, very capably — as does Lorrainne.

Underneath the director of finance and administration, you'll see that there's a coordinator of finance and personnel. That individual does the data entry and other support work for both the human resources and finance functions, works on organizing our conferences and workshops, is responsible for all purchasing in the office, including for the library — we have a small library with some specialist subscriptions to periodicals — and does backup reception work and other general support tasks within the office.

Underneath the coordinator of finance and personnel, you'll see a position: administrative assistant and secretary to executive director. This is vacant and is being held vacant, pending the outcome of this process. When that position is staffed, that individual does backup reception as well, again covering for vacations, lunch breaks and so on; does backup secretarial assistance — for example, when my assistant is on vacation that individual would provide me with secretarial support — and also provides backup for our registrar, to whom I'll turn now. When the registrar is on vacation we need to have somebody who can effectively run the inquiries that are going through our office at any given time.

That is effectively what the registrar does. When an inquiry notice is sent out, the registrar is responsible for running the whole operation effectively; sending out notices to affected third parties; sending out notices to interveners, if we have any, as we do from time to time; communicating with the applicants — the appellants, and the public bodies who are involved, and sometimes we get a multiplicity of parties involved in a given appeal — often answering questions from appellants, who are usually unrepresented lay people who are not familiar with the legislation and who need some assistance, frankly, in being able to participate in a meaningful way in the inquiry; and receiving and circulating submissions and getting them into a form in which I can make some sense of them — organizing them for me, effectively. She works very, very hard at that and is very busy at that. We do get anywhere up to — it varies — 60 to 70 appeals a year coming through the office. Believe me, there's a lot of work that's entailed there.

I've already touched on the intake officers and what they do. They're involved, as is our receptionist, in a fair bit of screening of contacts that we get from the public. For example, we get roughly 200 calls a month

referred to us by Enquiry B.C., many of which, frankly, turn out not to be matters within our authority or jurisdiction. Some of those matters that come through that route or simply through somebody finding our name somewhere have to do with requests for information, "Where can I find this out? I would like you to get me some information from government, please," and those kinds of things. We can divert those with our receptionist. She can handle a lot of those matters.

There are other matters, though, that get screened out at the intake officer stage. These are cases that come in off the fax machine, generally, where they look like they're a jurisdictional request for review, for example. But an intake officer will look at it and realize that in fact the public body has yet to make a decision, so the appeal isn't ripe yet. There's really nothing, technically, to be appealed. In some cases, the intake officer will be able to actually mediate a settlement in the matter.

We get a lot of what are called deemed refusals, where the public body hasn't responded within the prescribed time, and the legislation provides that that is deemed to be a decision to refuse access. That will come up to us. Generally speaking, the intake officer will be able to contact the public body and say: "Look, you're out of time. You're deemed to have refused. We've got an appeal on this. When are you going to respond?" The public body will say: "A week. Ten days. Now that we know the matter is before you, we have some pressure on us because of the knowledge that the matter will proceed." The intake officer is able to deal with that without having to refer it to a portfolio officer and open a formal case, in the sense of physically opening the file and getting it arranged and assigned, for example. We get a fair degree of support. In fact, I understate it in saying a fair degree. We get a lot of support from the intake officers in that function, because it helps us manage our workloads much more effectively than would otherwise be the case.

Turning to the portfolio officers, I will say right away that of all the portfolio officers shown there, one of those positions is at present vacant. I've detailed this on page 9 and following of the Service Plan and Budget Proposal. In the relatively recent past, I decided to eliminate a policy analyst position in light of the prospect of the need for us to allocate our resources more effectively to the mandated statutory duties we have. That portfolio officer position — one of those that's shown there — is actually vacant, but the resources are committed to the end of the current fiscal year. I would like, at the beginning of the next fiscal year, to be able to devote those resources, again, to a portfolio officer position which is approved but at present vacant. I say this in light of the fact that we're already looking at roughly a 22 percent increase, all things being equal to the end of the calendar year, in the number of access-to-information appeals that we've had year over year. We're already at 858, and in the whole of last year we had 823. I say "already" — as of November 15 we were at 858.

Portfolio officers, again, are responsible for a variety of things. They are primarily, as I've said, caseworkers, if you will. They mediate the requests for review. They deal with privacy complaints. They deal with policy matters that are raised informally by public bodies. They often will give advice over the telephone on general issues. They can't, obviously, help a public body make a decision on a particular matter, but they do a lot of that kind of support as well. They accept speaking engagements as well. They participate in our conferences and in other conferences. One of them, for example, was in Vancouver last week speaking at a health information privacy conference that was put on primarily for the public sector — British Columbia public bodies. They also do a lot of work in the training area, as I've said — the seminars and workshops that we've put on around the province.

One of the portfolio officers, with support from a couple of the others on an ad hoc basis, as needed, spends probably 15 percent of her time on media relations and communications — everything from the writing of media releases to accompany publications or orders that I issue to fielding media requests for interviews and so on. That is done off the side of her desk. We don't have anyone dedicated to communications.

Similarly, another of the portfolio officers, who has computer expertise, off the side of his desk will assist Linda with a lot of the sort of network support work that we do. We do have a contractor who comes in on an hourly basis to provide us with support that we can't handle internally, but Linda and this portfolio officer are primarily how we keep our network running.

That is an overview of how the office is structured and who does what. I would like to take you to page 9 now, drawing to a close here, and refer you to some of the background factors or context that informs or has had an effect on the proposal that you see before you today. The proposal, I will say right away, is for the coming three fiscal years. It is a flatline proposal. Perhaps I shouldn't use that language, but what we're asking for is status quo, without allowance for increases in CPI or any of the other cost pressures we're facing.

I'll say it once that in July of 2001, I had asked, for the first time, for an increase in the office's budget, and that was declined. I had asked for an increase to beef up our communications presence, to add a portfolio officer and to also add an inquiry officer. That's something that I will touch on in a moment. That request was declined, and that had everything to do with the decision to eliminate the policy analyst position and redirect our resources. Nonetheless, in light of changed economic conditions in the province and generally globally, I have, after very careful thought, decided to come to you today and ask you to recommend a budget that shows no increase for the next three years. Notwithstanding the request in July of this year, because of what I consider to be changed circumstances and the need to approach these things soberly, if I can put it that way, I'm before you today asking for status quo funding.

Now, some of the factors that go into the pressures on our budget. I mentioned CPI already. We have, at the beginning of 2002-03, a 2.5 percent increase to meet

the ordinary course, recently approved pay raises for civil servants generally, with a related increase in the benefits cost, which, as you no doubt are aware, is calculated at 20.52 percent of salaries. We have an increase in our building occupancy charges — otherwise known as rent — beginning at the start of 2002 of 1 percent, as I've got there. It's probably closer to 0.9 percent of our overall budget — from $235,000 to $255,000.

Then, as I think you've also heard, the officers of the Legislature have had their salaries increased in line with an increase in salary recently granted the Chief Judge of the Provincial Court. That has an impact on our office, which is reflected in our budget proposal, as well, and there's a related increase in costs there. I might add, by the way, that this is the second year only in which the benefits portion of my salary has actually been borne out of our budget. It used to be, as I understand it, that that came from vote 1, but we're now into the second year where that 20.52 percent times my salary is actually funded from within our budget. We didn't seek or get and certainly weren't given any increase for that amount. That is now in the order of $34,000 a year that comes out of the existing budget amount.

One of the things I'd like to leave off on, if you will, is what we've tried to do and have for some time been trying to do, as I think any organization such as ours ought always to strive to do. That's to find cost efficiencies so we can ensure that our mandated statutory functions are performed well in the future and certainly in compliance with the legislation, but also effectively. First of all, that's the shared-services analysis that the officers of the Legislature are jointly undertaking. That was something that I had originally suggested to the other officers, all of whom have agreed to look into that. I believe they've already told you about where that process is at. Terms of reference for the project are currently being approved or are in the process of being approved. I hope we can move forward quickly with a view to finding efficiencies and in terms of sharing services, accommodation and so on.

Pending the results of that, though, we have initiated some discussions with BCBC to see if there is any way that we can reconfigure our existing space — our lease comes up in May 2003 — with a view to maybe giving back some of the space to BCBC. But we're still at relatively early stages of that discussion, and I wouldn't be able to give you anything like a firm number in terms of what we might be able to economize on there.

I've already mentioned that I've eliminated the policy analyst position. In order to fund the core services that we provide, again, the portfolio officer being a caseworker and a professional who deals with the appeals we get, I would like very much to preserve that capacity. I mentioned also the elimination of the one admin assistant position, and we have tried to find other economies that are of a smaller order of magnitude, including the cancellation of what we have determined are unnecessary subscriptions. We've tried to redo how we do the annual report, produce fewer of them and do it much more cheaply in-house. It's done through Queen's Printer using less printed stationery, double-sided photocopying, and on and on — again, the adage being, I guess, that every penny counts. These numbers do add up, and it's something that we're committed to continue to try and do as we move forward in what are undoubtedly difficult fiscal times.

I will leave you, before I welcome any questions you might have, with the last observation, which is, as I've mentioned, that we have been experiencing increases in service demands. I've given you there the fact that the privacy complaints are steady pretty well year over year, but that we have seen an increase in the number of access-to-information appeals. The number of 830, as of October 31, has been superseded by the November 15 number, which is 858. In the first two weeks of November, notionally at any rate, we've found, if you will, another 28 access-to-information appeals. I think it's fair to say that we continue to have increased requests placed on us by public bodies that want more support and training and who also expect us more and more, frankly, to be there for them. That's something that we certainly try to do.

With that, Mr. Chair, I'd be happy to take any questions that members of the committee might have.

B. Lekstrom (Chair): Thank you very much, David, for the very comprehensive overview of what your office does. It's very much welcomed by this committee.

K. Krueger: Thank you for a really informative, fast-paced presentation. We've been really pleased to hear from all of the officers of the Legislature that the initiative was undertaken before we got started on this process to explore shared services and so on. I was really pleased with the quality assurance procedures that you've described you have internally and the obvious previous decision to emphasize productivity and customer service delivery by rejigging some of your organizational chart.

One of the things that we've been wondering is whether or not the legislative comptroller's office could help with some of the financial obligations of each of the statutory officers, things like payroll and these sorts of services that Ms. Calver might be providing. As you were speaking about her systems expertise, I was thinking, actually, that the comptroller could benefit from some of those. We still, for example, do expense accounts in the Legislature on old expense forms, and there is no provision for doing them electronically. I can see room for enhanced productivity on both sides. Have there been any discussions with the comptroller about using his offices and collaborating on some of those things?

D. Loukidelis: I should say — and I'm surprised that I didn't get an elbow in my side here — that when it comes to the human resources and accounting func-

tions, we certainly already use the service that is provided to government, and that's CHIPS, as it's known. It's not an old television series; it's the corporate human resources and information payroll system. That's provided to us at no cost. It's an automated — I think, Oracle-based — facility. We also use the corporate accounting system, which is obviously an automated, centralized, computerized system for doing our accounts, if you will. We do take advantage of those services.

We do, by the way, contract with ITSD for our e-mail and Internet access as well. We looked a while back — a couple of years ago — at whether or not it would be cheaper to do it ourselves or to basically contract it out. The decision at that time was, if I recall correctly, a wash. So we thought: "Well, if it's cost-effective, then we should continue to do that, but look at it…."

In terms of discussions with the legislative comptroller, the answer is no. I don't know whether Linda would like to elaborate on that, but no, we haven't looked at that. We do contract out on an as-needed basis for human resources support work. But, again, we just make use of the systems that are there and that I've mentioned.

K. Krueger: As you know, we're looking across government for an approximately 10 percent savings in each of the next three years. If there's a way to do that, particularly if it can be done without losing any personnel, where the existing staff of the officers' budgets collaborate and interact with organizations like the comptroller, that'd be good. Obviously, we're just at the beginning of those decisions.

The other thing I wanted to ask you: you said very clearly that your role is to be the review mechanism when the compliance of public bodies is being questioned. We had some remarkable examples, during the last parliament, of Crown corporations darn well going their own way regardless of what government told them to do, and government being outright embarrassed sometimes — for example, some of the actions that ICBC took, contrary to what the Attorney General thought was happening, with requisitioning new photo radar vans and things like that. Over the five years that I was in opposition, we kept trying to get ICBC to disclose how far they were from rating people's premiums by regional loss experience, and they just wouldn't do it. They said it was a competition issue, and so on, and just stonewalled us on it and stonewalled the media on it. Now that there's a new government in place, they came out with those numbers readily and have been moving to actually begin rating by regional loss experience again. So somehow, in spite of all the systems in place to try and make sure that Crown corporations are accountable, they appeared to be able to get the bit in their teeth, for those years at least, and do what they wanted to do.

The people who made those types of decisions are gone now, but I'm wondering how we make sure that people we might put in positions in other agencies, or wherever, don't also take off on their own tangents. Do you have any general comment about that?

D. Loukidelis: Yes. And if I could just, by way of footnote to my answer to your first question…. Again, I'm very committed to this idea of shared services with the officers, but, obviously, we'll look at whatever we can to make sure that we work efficiently.

In answer to your question, the goals of the legislation are openness and accountability. One of the things that I've been working hard at trying to promote within government since I became commissioner two and a half years ago is the idea of this legislation being the floor, not the ceiling. A lot of the exceptions to the right of access, including the one that you've alluded to — the competitive issue thing — are discretionary. A public body may refuse to disclose the information but can choose to do so. This legislation allows a public body, in cases like that, to go ahead and disclose it. I think that what has to happen, in order to promote the goals of the legislation through routine disclosure and through disclosure of information where it's a discretionary exception like that, is for the message to come from the very top that the default position, if you will, is openness, accountability and the right of access consistent with those goals of the legislation.

It will take a culture change. I think it's fair to say that in the years since this legislation came into force, there has been significant progress in that respect. But there is a way to go yet, and I'm not speaking of any particular public body here. I think it's fair to say that after decades and decades of the default position being control over the information, secrecy of information and the power gained by having control over information, it will take a considerable effort and a clear direction from the top over a period of years to bring about that culture shift.

H. Bloy: Compared to other jurisdictions across Canada and the U.S., are we more open, more closed or in the middle? That was my number one question.

You had mentioned also that on the statutes, there's a possibility of recovery. Is there a possibility of recovering 50 percent or 100 percent of the money from every request?

D. Loukidelis: On the first point, it is often said that because of the broad reach of the coverage of public bodies and also the nature of the exceptions to the right of access, this legislation is the most open legislation in Canada. It's fair to say that Alberta and Ontario have comparable legislation in terms of the actual statutory provisions, but the coverage of bodies in B.C. is broader.

The American access-to-information legislation tends to be much more open, actually. Perhaps because of the first amendment — freedom of the press and so on — that overlay has led to legislation in the United States being quite a bit more open, to the extent that some people think it's gone too far.

There was a recent case, for example, under the Florida Open Records Act, where the autopsy photos of Dale Earnhardt, the NASCAR stockcar driver who was gruesomely killed in a crash, are public records.

There's no right of privacy to those records for his family or anything. They have to be disclosed. That's an example of how far…. To be fair, the Florida Legislature did amend the legislation because of that case, but it is a much more open approach than anywhere in Canada, quite frankly. I think that's just a difference culturally with the United States because of their constitution.

In terms of fees, I mentioned earlier that there are limits. Let's be clear: you cannot charge an individual for access to his or her personal information. Similarly, you cannot charge for the first three hours of search time, but you can charge thereafter, and the rates are prescribed in the legislation. You can charge 25 cents a page for photocopying; you can charge for actual search time. I wouldn't be in a position to give you even a guesstimate, frankly, as to whether it's 50 percent or what of the costs. It just would vary so much from public body to public body.

H. Bloy: That's in response to the position this government is in today. There's not a lot of money, and we're looking at ways we can continue to serve the people of British Columbia at a reasonable cost if there are many requests coming in. When you look at your budget, if you're able to recover part of your budget via charging….

D. Loukidelis: Certainly, it's something that has been talked about before. An all-party committee of the Legislature reported on July 15, 1999, on its review of the legislation — which was mandated by the legislation after four years. It was suggested to the committee during hearings then that a change should be made and that fees should be charged, for example, for taking appeals to our office. That committee unanimously recommended that there be no change, but it is obviously something that has been before governments elsewhere. Clearly, that's a choice that I, frankly, would be reluctant to see, but that's government's choice.

R. Sultan: Let me commend the information commissioner for providing an awful lot of information.

I need a bit of education. It says here that you dealt with 823 requests for review between January 1, 2000, and December 31, 2000. Was that the sum total of requests for information made to this government in that period of time, or was this only the portion appealed to your office?

D. Loukidelis: It's only the portion appealed to our office, covering all 1,800 public bodies.

R. Sultan: How many requests in total would you estimate were made of this government?

D. Loukidelis: I would like very much to be able to answer that question, but I can't. The corporate privacy and information access branch, the government agency responsible for access and privacy policy matters, has, I believe, in June of this year rolled out what it calls its new request tracking system, which would apply to the ministry so that they get some sense of how many requests there are and so on.

I don't have data from that yet, nor would I be in a position to get you data on a provincewide basis. The best I can do is say yes, you're right. It's the tip of the iceberg.

R. Sultan: Couldn't you exercise the powers of help of any citizen under your act and demand that information?

D. Loukidelis: It's certainly something that I would like to be in a position to do. It's a question of resources. I have had discussions with people in government to see about getting that information from them — again, just for the ministries. For us to reach out to all of these public bodies to even make an access-to-information request, which is, I think, an interesting proposition…. I'm not sure where I would appeal, if I wasn't happy with the answer. I would like to be in that position, but we've made the decision that we haven't got the resources to do that, frankly.

R. Sultan: The $2.3-or-so million a year your office and its functions cost the taxpayers must be, I would guess, minor in comparison to the overall cost of information disclosure fulfilment in this government. Would that be a fair assumption?

D. Loukidelis: I guess minor, yes. Numbers have been bandied about in the past, which quite frankly, with deference to those who have bandied them about, have been inflated for one reason or another. I'm thinking of numbers that were bandied about in 1996.

D. Loukidelis: Across the province, yes. At the time those numbers were widely and roundly condemned as being inflated. The reason for that is no one has the information to which you've just referred.

R. Sultan: Well, let's just guess it's only a million, which would allow for a certain deflation. I would say that's still a staggering burden upon our civil servants to respond to and would be the true cost of the information function, not the cost of your office which we're here to debate today.

D. Loukidelis: I don't disagree. The cost to public bodies of responding is clearly a cost of this legislation.

Obviously, the legislation that has been in place for some time is consistent with what is identified as an important principle for the government, which is openness and accountability and an open and democratic government.

R. Sultan: But if one of the functions of our deliberations today is to just get some handle on the economics of fulfilling the information needs of our citizens, it would seem to me mandatory that we begin to collect this information and have some idea of where this volume is coming from and coming at. Perhaps it would reflect the particular style or the issues and concerns pertaining to particular ministries. Maybe there's something in the individual ministries that's not right. Maybe they're not being as open as they should be. We have a bunch of, I would hope, reasonably paid civil servants running around trying to dig stuff out of file folders, which should be published routinely, if you want to look it up — or better yet, it's on the Internet. There it is. Don't bother us.

I should say, by the way, on taking the tip of the iceberg and trying to scale it, that we do produce in-house figures that allow us to get some sense of which are the ministries that give us most of our business and what is the nature of the appeal that comes to us from a particular ministry. Again, that's only the appeals we get.

I was particularly supportive of and really pushed for a new request tracking system for that very reason. At least, at the provincial government level it gets you better numbers on the actual access request side, which I think is a much more useful number to have.

R. Sultan: Looking at your own information, I guess your main customers are ICBC, followed by the Attorney General and the Vancouver Police Department, followed by Children and Family Development, Ministry of Finance and, finally, Social Development and Economic Security — right?

R. Sultan: So why are they at the top of the list? What is peculiar about their style of operating, or is it just the nature of the laws and services and programs they administer?

In the case of Children and Family Development, for example, the vast majority of the requests that they get are from individuals who are seeking access to their own personal information — basically their case files. In some cases it can be ten or 15 years after the fact. They're at a place in their lives, for example, where they want to see what happened when they were in care ten years ago and so on. There are a lot of those.

In the case of the Attorney General, it could be that it was to do with corrections, for example, or other aspects of what they do.

R. Sultan: If I could just spin my final question in a slightly different, perhaps more philosophical direction. Given the events of September 11 and the demand, and I think justified demand, for greater security in our society — to the point where we're now going to have computer scans of people's physiognomy, if I'm using the term correctly, as they walk by on the street, with the dimensions of their faces and so on, saying, "Hey, there's a bad guy. Go out and grab him" — there must be concern in your fraternity on the trade-off between the security of society and the privacy of society. Have you got any thoughts and reflections on where we're going in that regard?

D. Loukidelis: You know, in recent weeks I've been asked that question and have answered it publicly, including in the media, by saying this: I would be the first, despite my function as privacy commissioner, to say that we ought to give intelligence and law enforcement agencies all of those powers that are necessary and effective to enable them to deter or punish those who commit terrorist acts or who would do so. But in deciding what is necessary and effective, we have to move with great caution and deliberation.

For example, the bill that's currently before Parliament and is now, this week, said to be going before Parliament in an amended form raised a lot of concerns, frankly, from the access and privacy sides. The ability of a single minister of the federal cabinet to certify forever that a piece of information could be excluded from public scrutiny went too far. The government has now said that it will amend that provision. So yes, there are concerns, but I tend to try and approach it on a case-by-case, almost pragmatic basis if I can. I don't take any sort of position against all that kind of stuff.

B. Lekstrom (Chair): Further questions from members? I will go to Ida and then to Lorne.

I. Chong: Thank you, Mr. Loukidelis, for your presentation. Some of the questions I had have been asked by my colleague Mr. Sultan. One area, though, that I'd like to quickly canvass you on is in relation to your service plan. You've got three recommendations there on the fourth or fifth page that you would like consideration be made to, it looks like. Are you able to quantify the cost savings, if any, if these recommendations were put forward in your legislation?

I know in one case you're saying that public body resources could be used more cost-effectively, but it would appear that in other cases there would be some cost savings. We are looking at trying to help determine where your budget can be used in the most effective way, as well as possible trimming, if that's possible. With your three recommendations or suggestions, I'd like to know what dollars we're talking about. Are they very minor?

D. Loukidelis: I can't answer that question in dollars and cents terms, quite frankly. I have thought

about it long and hard, though, and the three recommendations on page 3…. Is that what you're meaning?

D. Loukidelis: They are to my mind changes that would, from our perspective alone, in terms of our costs of operation, offer material cost savings. I have in mind a ballpark figure — and I invite either of my colleagues to interject if they think that I'm under- or overstating it — of as much as maybe 15 percent of some of the appeals we get, for example, in No. 1, where an appellant can force it through to inquiry.

In terms of the savings on my time, on the second item I could probably do 15 percent or so fewer orders, because a lot of the orders I now must personally do — thereby taking time away from my other duties — are relatively routine matters, frankly. I shouldn't say a lot of them, but a notable minority, if you will — a significant minority. That would allow me to do other things that some of the portfolio officers are now doing in a more public and high-profile way and therefore ease up on their resources on the policy-making side, for example, or the policy comment side.

Third, requiring public bodies to respond to all access requests. There is a significant minority of those who make requests that I think fall outside the intent of the legislation. I think you could probably across-the-board deter maybe even 5 percent of those. They can be quite resource-heavy, frankly — the determined minority of requesters. That change, to allow somewhat more leeway in permitting a public body to ignore a vexatious requester, could affect maybe 5 percent of those requests. Again, for the same reasons that I was mentioning in response to Mr. Sultan's question, I'm not in a position to say what that means in dollars and cents terms across the range of roughly 1,800 public bodies. That's material, but I cannot quantify it for you, I'm afraid.

I. Chong: The difficulty, of course, is that if these remain, your request for your budget is still the status quo. My guess is that you're not suggesting that any positions be eliminated. Is that correct?

D. Loukidelis: I am not at this time. I'll be very frank. The all-party special committee reported out about legislative amendments over two years ago. These were on the table. If and when we get those amendments — and I hope we do — then obviously, in line with my commitment to run effectively and efficiently, everything's always up for being revisited. I haven't seen those amendments for over two years.

L. Mayencourt: I have one comment to offer on the line that Ida and Ralph have been talking about. I have two individuals that have access to FOI, I guess, as a way of getting information from me. I've met with both of them in my office and offered them the binders that contain all the information they're requesting through your office, and they'd still rather go through your office to do it. There may be something that we need to do about those so-called frequent flyers — the people that access information as a hobby. That's just an observation that I wanted to share with you.

You've referred to the Lobbyist Registration Act in your written submission and said that Ontario spent a couple hundred thousand dollars developing a software package to maintain a list, if you will, of lobbyists. Where is that in your budget? What about the people that have to keep track of it and answer the FOI requests on whether I had lunch with someone or not?

D. Loukidelis: Well, like Ms. Chong's question, I think that's a point well taken. The answer is that it's nowhere in the Lobbyist Registration Act. That is a piece of legislation for which the Attorney General's ministry is responsible. My understanding is that the regulations that really put the flesh on the bones of the statutory framework are at present being worked upon, and further policy is going to be developed.

We are just not in a position to even forecast at this time what that's going to look like. In effect, we're in a holding pattern, and that's another point that, again, will be another factor that will influence our resources. We don't know what it's going to look like yet, so we're sort of in a wait-and-see position, along the lines of the situation with the legislative amendments. The Attorney General's ministry has kept us informed from time to time about how things are going, but I just don't at this point have any sense, really, of what that's going to mean for our budget.

L. Mayencourt: So there are two things there. One is that the Attorney General's ministry would actually develop their own package which would keep track of that.

D. Loukidelis: You're right. I don't think I actually answered it very well. It depends on how the regulatory framework actually looks once the draft regulations are prepared. We can't go out and design or buy off the shelf, maybe even from the Ontario registrar, and adapt a software package to handle legislation until we know what it looks like, really. That hasn't happened yet. That's something that…. We'll just have to wait and see.

I. Chong: Perhaps, Mr. Loukidelis, you can clarify for me something that I didn't have answered while I was in opposition. When an FOI request is made to your office for information that has been gathered as a result of the government commissioning a study or a report, how does your office decide whether that report in full or in part may be released?

I'll be specific. It had to do with the issue of the government a few years back looking at the impacts of gambling expansion. My recollection is that when we were in opposition, we had requested that information.

There were many thousands of pages that were available, as I recall, and we were required to pay for that. Unfortunately, our budgets didn't allow for it. The outcome was that there were several thousands of pages of information that had been gathered. I'm wondering how your office decides — and this is the point of my question — what kinds of reports can be released.

Obviously, those reports that the government tables as public reports we would have access to in the library. There must be other reports they provide to your office, I presume, and/or you go into that particular ministry and retrieve all those reports and then make a judgment as to those areas that are private matters and those that can be released. Is that generally what happens?

I guess my concern — and this is what it was when we were in opposition — is that taxpayers have paid for these reports. How would you justify it even if it was not a member of the opposition but a private citizen? They could say: "If my tax dollars have paid for this report, why do I not have some opportunity to access that without having to pay a fee?" Can you clarify?

D. Loukidelis: Again, point well taken. It goes back to the response to Mr. Bloy's question. Really, the sending of the message, the direction that the fundamental principle now is openness and accountability, is the presumed position. In fact, there ought to be proactive routine disclosure of such information. It's something that has to continue to be driven home, I think, despite the significant progress that's been made, as I said earlier, since the legislation came into effect. That is something that is obviously going to be ongoing for some years.

In response to how that would specifically work within our office, in the vast majority of the cases — 91 percent of the appeals — the portfolio officer would get the records in, be they several thousand pages or three pages, and would look through the information that was withheld. They get a full copy showing what was severed and held back, and they would judge in light of the statutory language of the exceptions that they had applied — say, section 13, advice or recommendations, and section 12, cabinet confidences.

They would judge the matter in light of the statutory language but also by the decisions that had been made under the legislation, the roughly 430 orders or decisions that I have issued and that my predecessor issued. There's also guidance under the Ontario and Alberta legislation, where the commissioners there issue decisions under their similar provisions. They basically come to a recommendation, if you will, and communicate that to the parties.

The portfolio officer might say: "Look. I think that pages 1, 8, 48, 51" — or whatever — "ought to be disclosed." Quite frequently that happens, and a public body will disclose more information, or the portfolio officer may conclude that the decision was appropriate. It will either be settled either way, or it ends up in front of me. I basically go through the same process, but I have the benefit of sworn evidence, affidavits, legal argument and the citing of precedents and so on. Really, it's a quasi-judicial decision at the end of the day.

B. Lekstrom (Chair): Are there any other questions from members of the committee?

R. Sultan: If we have another moment, I'd like another crack at a philosophical issue, and that is: have you ever contemplated the change in the style of governance that occurs by virtue of the FOI statute? As a novice to government, I am — and I'll count myself among the guilty — perhaps a little more reluctant to commit things to paper, to seize upon, shall we say, less obviously FOIable means of communication among caucus members and ministers and so on. In other words, you sort of get a submerging of what's really going on that is to some degree immune from the paper trail.

I would suggest that that's a very human and natural response. In fact, it may have even resulted in improvement of governance, because we're not drowning in as much paper as perhaps we did a decade ago. I have no basis of comparison, but it may not. I mean, there's a loss of record. There's a loss of commitment in writing to what is frequently going on. It results in a much more fluid situation, and surely people in your profession think about these things. Do you have any comment?

D. Loukidelis: I do, and I do. I think about it often. For that reason, whenever the opportunity arises with members of the House, members of cabinet, deputy ministers and others, I've tried consistently to overcome what you're correct to describe, if I may say, as a natural human tendency to think that because of this legislation, we cannot be as candid in writing as we used to be. I do think it's a natural human tendency.

At the same time, I would also suggest and always respectfully suggest that this legislation, as open as it is, fully protects that which would be committed to writing and ought to be protected. For example, I have had it said by at least one deputy minister — no longer in that position: "Since this legislation came into place, I can't write down advice anymore." Section 13, of course, says that the head of a public body may refuse to disclose advice or recommendations developed by or for the public body or a minister. Fully protected. There's the check and balance out there. There is the independent review. I acknowledge that tendency is there, and it has to be overcome.

You're also right about the historical record. I don't want to digress, but I do think it's important that, if I may say, governments everywhere look at modern information and records management legislation and practices. There is a lot being unrecorded, and there's a lot being recorded electronically, which raises issues about the creation of a historical record and the ability to make good decisions in the near term.

R. Sultan: I understand that in this regard private members are, shall we say, more immune from FOI than members of executive council. Is my impression accurate?

D. Loukidelis: This legislation certainly does not apply to constituency activity — those private activities, if you will, of a member.

R. Sultan: If I write a memo to Harry Bloy over there about, "Why don't we paint the Legislature pink?" or something, there's no way that could be divulged under FOI, as I understand it. Is that correct?

D. Loukidelis: That's right — again, a private MLA's record. On the other hand, if you wrote a memorandum to the Minister of Health Services, for example, and suggested that the following be done, I believe a copy of that memorandum in the ministry's hands would be subject to the legislation.

B. Lekstrom (Chair): David, I see no further questions. Maybe I'll just touch on one. Knowing the financial situation we're looking at in British Columbia, many people are being asked to tighten their belts to try and provide the level of service we now enjoy at less cost, which is unachievable in many cases. Some services will certainly be affected, I believe. When I look at your budget, I look at these numbers: $235,000 or $255,000 for rent. Can you comment? Coming from the north, they seem so staggeringly high to me. We're talking 22 employees. When I look at your address, do you only encompass the fourth floor on Douglas Street? Is this the cost for one floor?

D. Loukidelis: In fact, not even one floor. We have about four-fifths of one floor. In 1998 we entered into a five-year lease. That's to May 4, 2003. I've already had some preliminary discussions with BCBC to see what we can do about that in the interim. I want to see how things work with the other officers of the Legislature in terms of maybe being able to share accommodation. Everything depends on being able to do this in an orderly fashion in terms of our commitments to BCBC. I think your point's well taken.

K. Krueger: Before he makes you any offers, bear in mind it's 20 degrees below in Dawson Creek today.

A further question on the issue of staff travel. Is that to go out into the different…? Can you just explain that? Is that for when a request comes in that you have to go out and investigate where that request comes from? Could you summarize that for me?

D. Loukidelis: Yes, that's the case. To that end, the bulk of the travel is actually between Vancouver and Victoria. My predecessor made the decision not to open a Vancouver office, and I support that decision. I think it's more cost-effective for us to travel back and forth as the need arises. However, we do go as infrequently as possible. I've recently reminded staff that they're not to travel by air anywhere, even to Vancouver, without Lorrainne Dixon's prior approval and then only when absolutely necessary.

There are cases where there are sometimes a number of records — for example, there's 10,000 pages; you've got to go to the public body and look at them — to mediate, sitting around the table with the applicant and the public body as well. The other reason we travel to places like Vancouver and elsewhere in the province, although not as much now because we're trying to keep that under control — not that it was out of control before, but to be careful about that — is for site visits, conferences, seminars and things like that where we don't actually charge a cost recovery.

B. Lekstrom (Chair): All right. Maybe just one final question regarding the issue of fee recovery. Just clarify for me. If somebody goes to a municipality, for example, requests information, is turned down by that municipality and appeals to your office, you look at it. If you find the municipality — and I only use municipalities because I'm familiar with them — should have divulged that information, you then make a ruling, and they have to accommodate your ruling. Is there no ability for us to claim from that municipality all of the work that your offices had to put in, whether it be $1,000 or $10,000 worth of time and effort?

D. Loukidelis: That's correct. We have no ability to levy fees of any kind or to recover costs.

Well, David, I would like to thank you for coming and making your presentation here today. I think it was very informative. This committee has certainly welcomed your input. We have some deliberations yet to go, with our job as the committee, to put recommendations forward on this. Certainly, we will do our best. I would like to thank you, Lorrainne and Linda, for taking time out of your schedules to come and present to our committee this afternoon.

D. Loukidelis: Thank you. As I said at the outset, I welcome the process. I appreciate your attentiveness and your excellent questions.

We do have our next presenter at 2 p.m., Mr. Don Morrison, the police complaint commissioner. We will stand recessed until 1:55 p.m.

B. Lekstrom (Chair): Good afternoon. We will reconvene the meeting of the Select Standing Committee on Finance and Government Services.

I would like to welcome our presenter, Mr. Don Morrison, to our committee hearings this afternoon. As I indicated to the other presenters, this is a new process for all of us and one that we've looked forward to.

Just prior to handing the floor over to yourself, Don, for your presentation, I will begin by introducing myself. I'm Blair Lekstrom, the Chair of the Select Standing Committee on Finance and Government Services and the MLA for Peace River South. Just prior to proceeding, I would begin by asking the other members of the committee to briefly introduce themselves, beginning with Lorne, and then we will begin.

B. Lekstrom (Chair): As I'm sure you're already aware, we're here today to hear from yourselves regarding your annual reports, your performance plans, budgets and business plans. As I indicated earlier, it's new. It's something that I think, from what we've heard before, people are very interested in — having a body to which they present their information. It's been very well received by the committee so far.

What we would like to do at this time is turn the floor over to yourself for your presentation and introduction of, certainly, your guests with you. We'll begin.

D. Morrison: Mr. Chair, members of the committee, let me introduce Barb Murphy, the deputy police complaint commissioner.

I also welcome a committee to which I can turn. That is something that has been absent up until now and has created certain difficulties. I can speak to the time available, Mr. Chair; I'm a lawyer. I'm not sure how much time. Perhaps you would like me to just do an overview before you have questions that you would like to ask. You could give me some indication.

B. Lekstrom (Chair): If it took an hour to do your overview, that would probably be plenty of time. Then that would allow time for questions. If it doesn't take you an hour, I'm sure we can fill time with questions all the same. I will leave that up to you.

I'd like to start by just doing a short introduction about what is happening across Canada in terms of overview of police performance. I think it's an important context for which this office evolved.

I'm going to start first with Alberta. In Alberta they have a Law Enforcement Review Board. It is built somewhat upon the model that was used here before under the B.C. Police Commission. That is, it's adversarial in nature. Either a complainant or a respondent might appeal to that particular board if they were dissatisfied with what occurred at a municipal police hearing.

In Saskatchewan they have a police investigator. He investigates complaints that are made by the public. In Manitoba they have an investigator. He has staff that investigate as well, and they can order public hearings that are heard in front of a Provincial Court judge. This was the model that the last government initially adopted. There has been an amendment since then, and that was that if a public hearing was ordered, it was to go in front of a Provincial Court judge who is sitting on the bench.

In Ontario they had a police complaint commission, which was abolished with the incoming government. The responsibilities for that were passed to the Ontario Civilian Commission on Police Services. They act as an appellant body if either a complainant or a respondent is dissatisfied with what takes place at the police department in terms of a hearing. In Ontario, as well, they set up what is called the special investigative unit. Any serious criminal conduct is investigated by that particular group, which has its own forensic support group.

In Quebec they have the ethics commissioner, Mr. Paul Monty, who has his own investigators. They will conduct the investigation on complaints that are filed by the public. They will then bring it before a tribunal that is separate from the commission but separate from police as well.

New Brunswick has a police commission very much like the model that was here before. Nova Scotia is the same. Prince Edward Island does not have any civilian oversight. I had a chance to meet with the chiefs of Charlottetown and Summerside. They were facing some very thorny dilemmas and felt that some form of oversight might have assisted them in the situation in which they found themselves.

In Newfoundland they have a police complaint commissioner that only deals with the Royal Newfoundland Constabulary. That is the only other commissioner across the country who is an officer of the Legislature. Federally, you have the commission to investigate public complaints against the RCMP. You have, as a result of the Somalia inquiry, a military ombudsman as well as a military police complaint commissioner. That is the framework across the country of the various groups that are presently operating.

This office was created as a result of the Oppal commission. The Oppal commission was charged with looking at policing in British Columbia. Mr. Justice

One part he concentrated on was reforming the disciplinary process and how the police were held accountable. That is in part 9 of the Police Act, and that is the part through which I was the first police complaint commissioner. That is a significantly different model from what was here before.

What we had before, as I had mentioned, is that adversarial model, the old B.C. Police Commission, after a hearing in front of a presiding officer and, if either the respondent or complainant was dissatisfied — those were both trials de novo — a hearing in front of the police board. Then if they were still dissatisfied at that point, they would again make application to the B.C. Police Commission for leave and then a hearing in front of three adjudicators or three persons of the commission. There were, on the average for the last three years, approximately six hearings per year in front of the B.C. Police Commission.

The model that the Legislature put forward in the new Police Act, which came into effect in July of 1998, was one in which, basically, the position of PCC was that of a police ombudsman. That is, the PCC was to have oversight responsibility at all stages of the filing, characterization and investigation of complaints. Following all of that, the commissioner has to apply a public interest test and make a determination as to whether or not a public hearing should occur.

In carrying out that mandate, the office is first a recipient of complaints, and that is as a result of a direct concern that Justice Oppal raised that some people felt very uncomfortable having to bring a complaint to a police department for whatever the reason. So we are a recipient of complaints from members of the public. We then give them to the police department. We are responsible only for municipal police. The RCMP, even the ones on contract as provincial police, are the responsibility of the Commission for Public Complaints Against the RCMP. That is a jurisdictional split, and one which Mr. Justice Oppal recommended against. He felt it was important that there only be one complaint process in the province. That has been resisted by the federal government.

T. Bhullar (Deputy Chair): Sorry to interrupt your presentation here. I happen to be involved in the disciplinary process with the RCMP. Perhaps you can elaborate on why their bifurcation is not a good model. I'm a lawyer also.

T. Bhullar (Deputy Chair): You seem to be endorsing it. That's the understanding that I have.

D. Morrison: We, de facto, have our pamphlet — it's not here; it is on our website — which says that if you have a complaint against the police, you have a right to say what happened and a right to be heard. We don't, on our material, differentiate between RCMP and the RCMP. Once we've heard the complaint and have helped clarify what it is, we will give it to the office that they have in Surrey, and they deal with it in their own process.

D. Morrison: Well, the citizen has a complaint. A police officer interacts with a citizen, and something happens — excessive force or whatever, from their point of view. They come forward with a complaint. They can go in our process or in the process that the RCMP have. They're different.

Ours expects that there be timely reports of the investigation. Ours allows the PCC to review the characterization of the complaint. Ours allows the PCC to order an external investigation — that is, to have another department investigate it — if there is an apparent conflict or problem with the closeness of the department itself, or the detachment, if it's an RCMP detachment.

The RCMP process is one in which the complaint is sent to Surrey and clarified, and it then goes back to Ottawa to be dealt with and sent out to the individual detachment in many cases.

T. Bhullar (Deputy Chair): Well, quite possibly, sir, but it can directly go to an internal affairs branch, which will then assign it to an internal affairs unit, and then it would be taken over from the internal affairs unit. That's a bit different. An internal affairs branch is separate. You can initially go to the RCMP complaint commission and lay a part 7, but you can also go directly to the internal affairs branch. What model do you operate on if there's a complaint?

D. Morrison: In the model that this Legislature set up for British Columbia, only the police investigate complaints. The oversight role is to monitor how that investigation takes place.

T. Bhullar (Deputy Chair): Okay. Perhaps I'll let you proceed and ask some questions.

D. Morrison: Once the investigation is completed, the discipline authority determines if, in fact, the allegations are sustained and whether or not there should be discipline. At that point they convene a discipline proceeding. Following that, it comes back again to the PCC to determine whether or not there should be a public hearing.

That's the process we have here. There is a different process to follow up if it's a service and policy complaint — that is, beyond the actual individual conduct of the officer involved.

Now, the responsibilities are set out on pages 4 and 5 of the submission. As well, the issue of a proactive role for the police complaint commissioner is addressed. That is largely done in three ways.

First, the website has information on it relating to police powers, as well as the ordinary information which citizens may want about municipal policing and how to file complaints. In addition, we've retained an ethicist so that we obtain ethical opinions about various aspects of police conduct. That is on the website as well. The commissioner's casebook deals with ordinary issues that confront the police officer who is on patrol. That again is on the website. As well, in the spring we conduct some training or education for police on the lower mainland, and in the fall we do a session over here on Vancouver Island.

Since this office came into effect in 1998, there has been a doubling of the number of complaints, so that it is from 200 a year up to 400 a year.

The first year, 1998, is a combination of those files that were traversed to the new legislation plus the complaints for the remainder of that year. They equalled approximately 200, — less one or two, I think it is. Following that, in the following two years it's been around 400.

Now, what has happened in terms of our organization during that time is that we have tried to remain flexible in organizing to meet the demands placed upon the office. For example, in the original organization chart they had a manager of education and communication, they had a policy analyst, and they had a registrar. We have never filled a policy analyst position, converting it to an investigator position. We have never filled a manager of education and communication, rather converting it to a third investigator position.

One of the things we became aware of was the high legal costs that were occurring. That was because the jurisdiction of the PCC under this new legislative scheme was being challenged. Initially, under the organization that was set up, there was no position for legal counsel within the staff. You had to go out and purchase that service in the market.

The costs, as we faced jurisdictional challenges at the Supreme Court — one in the Court of Appeal and recently in the Supreme Court of Canada — were such that we surplused the registrar position and established an in-house legal counsel. That position takes effect, I believe, at the end of this week. We will try to manage all or most — the high percentage — of our legal costs now in-house and attempt to save money.

On page 8 we have an organization chart that represents where we're at, at this point in time. Of the positions here at this point, one of the investigator positions is vacant because that was a seconded position, and that person returned to the Human Rights Commission in September. One of the administrative assistant positions at this point is vacant as well.

Page 9 lists the public hearings that were ordered and their present status. In addition, I'm aware that there's one other one that, by right, an officer can obtain. My understanding is that that will be requested in the near future.

Page 10 deals with the court challenges. The Jones and Doern matter, in terms of the B.C. Court of Appeal, was completed. The Court of Appeal reinforced the jurisdiction of the police complaint commissioner in terms of determinations at a particular incident. That was appealed by Vancouver to the Supreme Court of Canada, and the appellant and respondent have both filed written arguments in terms of whether or not there should be leave.

I have been made aware that, as well, now BCTV is going to file an action against the Vancouver police department in regards to that incident, because videotapes seized of the incident at the Hyatt pursuant to a criminal search warrant then became part of the investigation under the Police Act. Their position is that that should be contested. My understanding is that they may try to take that all the way to the Supreme Court of Canada as well.

The next page is budgetary challenges. That sets out the history of funding — that's on page 11 — for the police complaint commissioner's office.

It is a new office, only begun in 1998, and it is one where we have tried to deal with issues, both operationally and in terms of the public hearings, as best we could. The consequence has been that we have gone back to Treasury Board since 1999 — so in the first year we did not — requesting contingency funds to meet our needs. In fact, this Wednesday, again, we will be going back to Treasury Board for that very same issue. That relates to court challenges and the public hearing that is presently scheduled for half of January and all of February.

We are asking this committee to consider the funding of core operational functions. That is set out on page 12.

As well, there is the issue about public hearings and jurisdictional challenges being unpredictable events. By unpredictable, I mean that it depends on whether a public hearing is ordered in the public interest. It depends on the conduct, which, from the time something happens, can take years. It ought not to, but it does. In spite of Mr. Justice Oppal's recommendations that everything be concluded within six months, some investigations are very complicated and take time. We can't predict the time when they come on stream and have to be dealt with according to the legislative mandate.

At this point I am not sure what the best way is to deal with public hearings and legal challenges. We have had to come back again and again and ask for contingency funds. There are a couple of alternatives that I'd ask the committee to consider. One of them is to designate a certain amount for public hearings and legal costs and to freeze that amount so that it's used for what it's designated for and, if not, is returned.

Our adjudicators have the powers of commissioners under the Inquiry Act, but they do not have access to the consolidated revenue fund as a commissioner of inquiry would under the Inquiry Act. That is another

The third way, which is the way we've been working, is that we just come back to this committee, who will vet those requests for contingency funds should the need arise.

The amount of $370,000 that is put down there has a lot of variables in it. For example, my understanding is that today there will be an application by a lawyer for the respondent in the Hyatt that the public hearing that is set now for the middle of January and all of February be adjourned. We haven't heard whether that has been successful or not. The basis of that, as I understand it, is that the matter is now before the Supreme Court of Canada, and they haven't made a ruling on whether or not to grant leave. I am not sure what is going to happen in that case. That is a significant amount of money, because what you have is approximately six weeks of hearing time with costs for adjudicators and so forth.

In addition, we have never had money in our budget to rent facilities to have hearings. We have begged, borrowed and grovelled for space. To that effect, the hearing for the Hyatt is being held in a courtroom in Port Coquitlam. We have talked with the chief coroner about the use of the coroner's court as well. While that is a possibility, on longer hearings it's not on the books. They have inquests and so forth to conduct. They can make it available, I think, for a week or two weeks at a time.

The federal court has been very kind in making facilities available to us at no cost. There has been some agreement with the Supreme Court that they are going to take over at least one of the courtrooms for the period of the Air India trial. Now, I'm not sure if the Air India trial will be going ahead. I think it's supposed to start in March. One of the accused will be making an application for an adjournment. If that's the case, it may be that we again would have free access to that courtroom in the federal court.

We are in the process of trying to work with the auditor general in terms of cost-sharing. I have written him specifically about providing us with the finance manager's service, and I think he has spoken to you already about doing a study, as well, on other cost-saving possibilities. That's going to take place.

In the Hyatt matter, if leave to appeal is granted, then there will be a hearing in the Supreme Court of Canada. That again will be costing further money.

These are the dilemmas that I am confronted with partially because the operation has not been around long enough for the jurisdictional issues to be resolved. Hopefully, if the Supreme Court refuse or deny leave, they will have helped clarify what the powers are and what the jurisdiction of the PCC is.

Beyond that, what we have is the rise to 400 complaints. I am not sure if that will be the baseline that we'll be working from. I know that here in Victoria the board heard stats at one point in time that every complaint or concern that came into the PIC counter was placed. I think their complaints rose to over 100 in the month or two months or something along that line, so they stopped doing that. Complaints are only those that have written form 1s, which is the definition of a complaint within the context of a public trust complaint.

B. Lekstrom (Chair): Thanks very much, Don, for your presentation. As we indicated earlier, this being a new process, it's always informative to hear the presentations we receive.

I will begin with some questions. I will begin with Tony and work around the room.

T. Bhullar (Deputy Chair): Don, what are the bases for the jurisdictional challenges against the police commissioner?

D. Morrison: The Hyatt one started out about whether there was an apprehension of bias because of the legislative amendment that was made. That was that I had oversight responsibilities for the characterization of the complaint, oversight responsibilities for the investigation of the complaint and for determining whether or not I would order a public hearing. I would appoint counsel to the adjudicator, and I would also appoint the adjudicator.

I'm not saying that there's not a valid point in there somewhere. The question is…. I really think it's the integrity of the adjudicator that's being questioned in a situation like that. That basically is what I think the Court of Appeal said.

The original decision at the Supreme Court talked about the apprehension of bias. There was a second component to that. The contracts I was given to have adjudicators sign had various terms and conditions on them which also raised an issue of the apprehension of bias. As soon as that judge of first instance identified that, I asked: "Do I have to send out a contract like that?" I was told no. Before that, that was not what I was told.

Now the process that we have is, first, to try to deal with that apprehension of bias. No matter if the Court of Appeal said it's okay, I still think it's a bit sticky.

What happens now is that if I make a determination that there should be a public hearing, I then write a letter to the Associate Chief Justice and ask him to nominate a retired judge who may serve as an adjudicator. He then writes me a letter back, and on the basis of his nomination, I name that individual. I then send out a letter of appointment to that person. For any arrangement about fees and so forth, the Ministry of Finance deals directly with that adjudicator. I'm not involved in that at all.

T. Bhullar (Deputy Chair): Doesn't that solve your jurisdictional problem, then?

D. Morrison: Apparently not, from the point of view of the Court of Appeal. There are others issues there as well. That was an investigation in the issue of

the Hyatt about whether I could name individual officers if a police department decided they would name nobody and say there was no wrong. I made a determination that I could name officers and in that case name those that were in charge of the operation.

The Court of Appeal said that I could name any officers even around in the vicinity. That's what the "party" section of the regulation is all about. That's another issue to strengthen the jurisdiction and strength of the PCC. In fact, I think that's exactly what the Legislature wanted at the time.

T. Bhullar (Deputy Chair): Just a couple of other questions, and then I'll move along. What is the structure of getting the complaint to you? It starts out now, unlike the RCMP…. Well, the RCMP does have a bit of an informal system, but not really. Do you get involved in reviewing any informal resolutions at the police department level?

D. Morrison: Yes, I oversee everything to the point where everybody at the police departments is quite sick of me.

T. Bhullar (Deputy Chair): The reason I say that is that I fear some quid pro quo. I was a prosecutor as well, and I've done some ride-alongs. The accused was going to be charged with something — some excessive force — so they slapped him with an obstruct charge or something so that it was kind of balanced off at the end of the day. Then basically a deal was arranged: "We'll get rid of this charge; we'll let you go on whatever charge — the obstruct and so on." A deal was made. I'm just concerned, and that's why the RCMP….

D. Morrison: I don't think that's the type of informal resolution that Oppal had in mind. It's certainly not the kind of informal resolution that I would support.

My task in looking at informal resolutions is, first, that sometimes complaints are made mala fide. We don't have that section and the summary dismissal, but the concern by police officers sometimes is that complaints are made to plea-bargain away everything from a traffic ticket to maybe a minor criminal charge. That's not what informal resolution is all about.

The role that I play at this point is to review all of them. If there is an informal resolution, once the complaint is laid under a form 1, it has to be signed off by the respondent and the complainant. The review of our office is to make sure that there's no undue pressure by either side in terms of that resolution — that in fact it has a certain amount of integrity to it.

There is a special committee that is also reviewing part 9 and the role of our office. I brought it to their attention, and it's one that I strongly believe would be of help even here. It's that the ethics commissioner in Quebec has the power to order a conciliation — that is, he can order that a complaint be dealt with that way. A member of his staff then has 45 days to attempt to resolve that informally. If they cannot, it will go back to him, and there may be a full investigation.

There is a power there, whereas the legislation here is much softer. There has been one application for formal mediation in two and a half years. There is informal resolution that takes place at the department level, but it has not been formalized such as in Quebec, for example.

T. Bhullar (Deputy Chair): One last question. What is the standard the adjudicators use for finding guilt or innocence? Is it on a balance of probabilities?

D. Morrison: Yes, but it is a sliding scale. I think that's even in the legislation. If it's a serious offence, it's much closer to "beyond a reasonable doubt." If it's a minor one, it might be lesser. I kind of have a little bit of difficulty with that, with my former background. I sort of feel there should be one standard applied. "Clear and convincing evidence" is what is actually in the legislation in Ontario, but here it is "on the balance of probabilities." A sliding civil standard, I think it's called.

T. Bhullar (Deputy Chair): Yes, but it goes up to clear and convincing, I think.

J. Bray: Thank you very much for your presentation. I just wanted one quick clarification. When a complainant signs a form 1, it doesn't become a true complaint until the respondent also signs.

D. Morrison: No. In fact, I have to be very candid. I think that police departments have bent over backwards in listening to complainants, and that's something we've worked out. I have a committee called the professional standards committee, which has internal investigators from all the municipal forces. The legislation says the complainant has to sign a form 1, and then it's received and becomes a complaint. Then it has to be processed under public trust or characterized and so forth.

In addition, what all the departments do is that if the complainant has trouble articulating what it was or has written a very long letter about the complaint, they then just sign the bottom of a form 1, and I order an investigation pursuant to another section in the act, 55(3).

I also recognize that in comparison to some of the other independent officers, yours is relatively new. I'm looking at your service plan that you submitted, and my first question, if I may, is if you can clarify your

first bullet under point 2 of police culture: "While the public has supported the concept of police investigating the police…."

Certainly, in the media and in water cooler conversations, often the opposite is deemed to be — that in fact there is a concern about having individuals investigate themselves when there are any allegations of wrongdoing. I'm wondering if you can just elaborate a bit. In your service plan, you seem to indicate that the public thinks it's fine for police to investigate police.

D. Morrison: That's not what it is supposed to mean. When Oppal sat, he basically said there are two models proposed. There is a model where — and that was suggested by a number of the citizens that came forward — police should not investigate themselves. That really is one of the bugaboos from Australia to…. In fact, England is setting up a new independent police complaint commission, which is really addressing that very issue. It's going to be a bill in the spring.

On the other side is the old traditional model where police investigate themselves. B.C. Civil Liberties had recommended it. They said police do a very good job of investigating, but if you're going to have police doing the investigating, you need a strong civilian oversight body that looks over these things. One of the problems, and it's one that I'm concerned about and I don't have a solution — of course, I have a solution to nothing, you know — is the concern that when something happens, when an incident happens and statements are taken, the police sometimes see nothing: "I was in the room, and it was five feet by six feet, and I didn't see anything. I don't recall." That sort of thing. That was a concern. Then if a police officer does come forward, they get ostracized. That's part of that culture I'm trying to bring out there.

An example of that was a case that occurred before I was appointed. There was a criminal trial related to assault. There was some bar on Granville Street. It was some nightclub. Of course, I'd never been there. One of the persons sustained a certain amount of road rash. His dad happened to be a former MLA and a former Vancouver policeman, Mr. Davidson. A complaint was lodged, and a criminal investigation occurred. One policewoman testified as to what she saw of the incident. She has never, as far as I know, done patrol again. She does accident investigations. Even the union spoke, "Oh, we shouldn't do that sort of thing," but nothing was done about it. That's part of that culture. I could give you other examples. In fact, a public hearing is ordered on that very issue.

J. Bray: When I read that, I knew it was about police culture. Thank you for the clarification.

On page 7 you talk about objectives and performance measures. My first question is…. I'm a resident of Victoria, and when I walk into the police office to lodge a complaint, am I made aware of the full process at that time when I'm completing my form 1? Do I know you exist at that point, or do I find out by happenstance later on if I'm not happy?

D. Morrison: That's the theory. We haven't done a test to go around to find out whether the pamphlets are in each department. We have pamphlets in 12 languages now so that people will know that there's a process out there. When you get that many pamphlets, you have to put them some place. Allegedly, police have them at the PIC, public information counter. Some of them do that, because I've been through them. I'm not sure they all do. At least the investigators I know have said that they have kept the complainant informed that there are these options. In the letters they send out at the end of their investigation, they point out that this office exists, and if they're concerned about the result, they have a right to appeal within the next couple of days.

J. Bray: Thank you. My last question is: on your performance measures, do you identify what you're going to be measuring?

J. Bray: I don't see anywhere — unless I missed it — any baseline measurements on it, like time limits of document processing and decision-making. I know that's what you're going to measure, but I don't know your quantitative baseline — in six weeks, in six years, when I get around to it. I'm wondering whether or not there needs to be either some commitment to doing baselines for this year, so that you have comparatives for future years in the service plan, or maybe you need to go back and actually have staff design some baselines. Would you comment on that?

D. Morrison. Yes. In fact, that's exactly what we're doing. When I first came in — I might as well take all the responsibility for these things — there was a budget for the fiscal year 1997-98 even though I didn't exist, at least at that time. Of that, $350,000 was given to a software company to design a complaint-tracking system. When I came in April 1998, it still wasn't working. When there was training for these people in Vancouver, the system actually froze. It didn't work at all. I was naïve then, of course — coming in from just doing trial work — and I took the position: "It doesn't work; I'm sorry. We've put in $350,000. You can't do anything." I stopped it, and we manually looked after complaints for four months. We then went and bought an Excel program off the shelf and had a software person come in, and for $7,000 we have our present program. That's been operational for about two years.

Our intention is to program it to draw out a lot of that type of information. That didn't happen this year. We were just trying to get the system up and running. We definitely will.

J. Bray: I now encourage that by this time next year, this section is fleshed out more. It's very helpful for us. Thank you for your presentation.

H. Bloy: Thanks for your presentation. I guess one of my questions is on a cost-recovery basis, when you do the work for the different police forces. If I just divide the number of complaints by the number of police per population, Abbotsford would be number one on the hit parade list, followed by Delta and that. Do they pay any share of the complaint?

D. Morrison: No. Let me tell you about cost recovery, because that's an area of interest. There are a certain number of things that have happened. For example, the provincial government was going to provide courtrooms and adjudicators. Somehow that got off-loaded back onto us, and we had to try to make estimates of how that was going to work.

The only overseeing body I know of that has a cost-recovery program that goes against the police departments, which they are working for, is the model in Quebec. They do that in two ways. They do it in terms of informal resolutions. If Paul Monty tells his conciliator, "Deal with this; you've got 45 days," she or he pulls those people together, and there's a resolution. That then is billed to the department. As well, Mr. Monty has investigators that go out and actually investigate the complaint. That, too, is billed back to the department.

We, of course, don't have that. What we could do — but that is going to be a very sensitive issue — is that if I order a public hearing, the cost of the adjudicator, the cost of space rental and the cost of court clerk and court reporter could be billed back to the department. That, of course, trenches on municipal affairs, and it's far beyond my….

D. Morrison: It's not in the legislation. Those two things are in the Quebec legislation. We don't have that at this point in time.

D. Morrison: Believe me, I wouldn't try that unless it was strongly entrenched in bold in the act. In one of the matters, costs were ordered against the police department when I had to take them to court to get some information released. That became a real small-p political problem for me in terms of working with departments and so forth. I'm sensitive to cost recovery but also to how it affects my ability to work with the different departments.

I. Chong: Mr. Morrison, thank you for your presentation. I'm not a lawyer, so I'm not going to ask you any questions that I wouldn't otherwise be able to understand the answer to. I will ask you as an accountant, and I'll stick to some financial things.

First of all, just for understanding, what connections do you have or do you believe you should have with, perhaps, the Justice Institute? Obviously, that's where your police officers are derived from.

D. Morrison: When I first took over the position, there had never been a training course for internal investigators in western Canada, so we designed a course to train them. First, we could do it under the guise that it was orientation under the new Police Act, but very quickly it became other areas that they were interested in, to ensure that they became more professional.

This year we are going to partner that with the Justice Institute, and it really is a role they can play. I've recommended — and I'm not sure what the end result will be — that they expand it to include all of professional standards, which would be a policy role and a recruitment role. We are looking to partner that one, as well as other educational opportunities — for example, the anti-terrorist act.

Now, that expands the powers of police officers, and I have already assigned a co-op student, at least, to prepare matrixes of the American act and the two Canadian acts. We will, as well, be partnering with the JI in trying to prepare a training course. It's going to be significant, and there's a significant role for civilian overseeing, as well, in terms of police powers and where they overstep their bounds and so forth. We're looking towards those types of partnerships with the JI.

I. Chong: A supplemental to that. What would the costs associated with that partnership be for your office? What kind of budget would you have to put in place for that if you do not already have that in your budget?

D. Morrison: At this point in time, I think we have a budget of only $10,000 for running two weeks of training: one in the spring and one in the fall. The one in the spring we offer down at the Simon Fraser University campus, because that is a better place of attraction for the Delta police, the West Van police and most of the Vancouver police. We offer the one in greater Victoria out at the Chiefs and Petty Officers Mess, because we seem to get a very good under-the-table deal, although our investigator, who was formerly in the military — which seemed to help; I'm not sure exactly why — will be leaving in January, retiring because of the package. Hopefully, the good relations he developed will be there as well.

I. Chong: The last area of financial that I wanted to canvass you on is that I do see that your budget has gone up every year. Recognizing that it just started in 1998 — so three years — it could be just a developmental shift in setting up your office. Can you give me an idea as to where you believe it can or should be stabilized? I'll ask you in the context of if in fact it was necessary to keep your budget at what it was last year or to decrease it by, say, 15 percent, or to increase it by, say, 15 percent: would you be able to quantify for this committee and supply that information to us as what that would mean to the effectiveness of your office and

the impacts it would have — so status quo plus or minus 15 percent from the budget of last year, for example?

D. Morrison: I would develop that information and the policy alternatives. I'm very conscious of what my legislative requirements are, and I would try to place it in that context. The special committee is meeting, and if there was…. I understand the fiscal climate, and I feel that I've been very fiscally responsible, even though it's gone up every year. When people look at it, they say: "Well, it's not, really." In fact, I think that I could come back…. The other thing is that the special committee is meeting, and they are going to make suggestions for amendments to the legislation. They have to file their report with the House by August, I believe it is, of 2002. If recommendations for cuts came such that the present legislative responsibilities were impacted, I would like the opportunity to present some of those things to the special committee so that our operational effectiveness within the context of a legislative framework wouldn't be affected, although the legislative framework might have to be adjusted.

I. Chong: Okay. I would be interested in seeing that, but I'll defer that until we discuss that as a committee and with the Chair. Perhaps more on what the impacts would be if there was a decrease…. With an increase in a budget, of course you can always do more, but with a decrease I'd be curious as to what those impacts would be. I'll defer that until the Chair deliberates with us.

T. Bhullar (Deputy Chair): Just a few more questions. I'm not sure if there's anything your office can do about it, but I understand the Vancouver police department is not enforcing possession of narcotics. I got that on the news recently.

D. Morrison: I think an inspector, Kash Heed, actually did present that to a special Senate committee in Ottawa as well, yes.

T. Bhullar (Deputy Chair): Correct — a non-elected Senate, I might add. [Laughter.]

Is there anything your office can do, considering that Parliament has not legitimized the possession of narcotics? It's still on the Criminal Code books. Is there anything your office can do?

D. Morrison: Okay, let me give you one example of a situation that arose in which we did something which was kind of stretching the legislation but that I think needed to be done. That was Growbusters. If you recall, I think last May there was a lot of concern in the media about the fact that there was this program that seemed to be uncontrolled, called Growbusters. They were going into various houses, smashing equipment, trucking it away, violating people's rights and so forth. What I did — I apparently have the power, I guess, because nobody seemed to object to it — was retain the former chief coroner for British Columbia, Larry Campbell. I asked him to look at this. Were they in fact violating the law? What steps had they taken to deal with the issues that were raised, if any? He prepared a report on that basis. That is on our website as well.

What we did was that we had a meeting, then, with the chief and senior people in Vancouver as to possible changes that he might wish to make to the way things were operating at that point with the drug squad and Growbusters. We were able, I think, to deal with the public concerns about illegality on the part of the police and how they implemented that.

Taking that and applying it to the situation here, I think, to some degree, these are the types of things that the police complaint commissioner should be involved in, but not in terms of the political context. The things that the PCC might be able to do…. It's been debated to death, and I hesitate to say there should be more public debate about it, but there may be ways of dealing with it. For example, in the downtown east side they're talking about legitimate shooting galleries and so forth. There may be a role there in terms of concerns or complaints or how addicts are dealt with and so forth.

I'm not sure there can be a broad philosophical question. It could be a service and policy complaint, which we would refer to the Vancouver police board and ask them to investigate, review and so forth. If they decline to do that, I might write a letter making suggestions about what they ought to do about it.

T. Bhullar (Deputy Chair): As I indicated, I'm deeply concerned. What kind of example does that send to the public when the police are not enforcing the law that is on the books? It's the Parliament of Canada that should be making the decision — the elected representatives — and not the Vancouver city police department. Sadly, it's disappointing to hear an unelected, appointed Senator condoning such action. I'm not saying it's right or wrong, whether soft drugs should be legitimized or not, but that should be the decision of the Parliament of Canada.

I'll move on from that. I'm just wondering: what about the defence provided for officers that do appear before the adjudication board? Is that provided by a union, or is that from the internal force legal representation?

D. Morrison: The collective agreements of the various departments fund many of those defences. For example, the move all the way to the Supreme Court of Canada has been funded by the Vancouver police board. There was a case in Delta in which that went to the Supreme Court, again dealing with jurisdiction. I

thought Madam Justice Kirkpatrick very strongly said: "Deal with the model that the Legislature has set out, because you can then go to the Court of Appeal from that if you're unhappy." That was funded by the police unions. So it varies. There's another case at this point that the union is going to have to fund, because the police board has suspended that individual for his conduct.

It seems to me that the collective agreement applies, but not in the situation where the person is suspended or found guilty of misconduct at the disciplinary authority level — the first level.

T. Bhullar (Deputy Chair): A final question, and you might not even have an answer to this. How much do the various municipal police forces pay out in the way of damages from lawsuits?

D. Morrison: I don't have any knowledge of that. There are often settlements made which aren't in the public domain, and the settlement is not even registered in court in many cases.

T. Bhullar (Deputy Chair): Correct, and they often have a confidentiality clause. That's the area I was going towards: the confidentiality clause. Should there even be a confidentiality clause so that the public is aware how much the public is having to pay out for the mishandling of a matter by the police?

D. Morrison: Not in my present role. In my former role as a Crown counsel, I was more inclined to think that confidentiality might be appropriate. At this point I think that the communities should know what their police are doing.

I'm not saying that what the police do every time is wrong or anything else like that, but some of the decisions they make do result in liability issues occurring, and that's just part of the territory. That's what police do. They deal with highly emotional situations, be it landlord-tenant, neighbours, alcohol, domestic. There's going to be liability and things that emerge from those types of situations. I think they should accept that as part of their job and not feel that they have to cover those things up.

R. Sultan: Commissioner, I enjoyed your testimony thoroughly. If I could be permitted a bit of a ramble here, I notice on page 5 of your presentation that the police complaint commissioner must arrange a public hearing upon request by a respondent police officer for whom a disciplinary or corrective measure more severe than a verbal reprimand is proposed. That sounds to me like a pretty open-ended obligation. I could imagine all sorts of reprimands that would result in police officers requesting a public hearing.

I also notice from page 6 of the same report that the number of complaints lodged with you has risen from an average of 200 per year under the previous process to 400 per year. Similarly, the number of inquiries and appeals seems to have virtually doubled.

I recall reading in the newspaper over the weekend an interesting speech delivered, apparently, by our Attorney General before the Fraser Institute in which he speculated upon the cost to society of the legal process. If I interpret correctly what the journalist, at least, was interpreting — with my fuzzy memory, I may have gotten it completely wrong — he seemed to be almost asking the question at one point: "At what point does justice and due process become unaffordable? There has to be a limit." Then I sit there as an MLA and listen to people in my office who can't get a CAT scan for this mass that's bothering them on their liver, or the mother who can't get treatment for their autistic child because the budgets are cut.

While your $1.7 million budget is relatively modest compared to most that come before this body as officers of the Legislature, nevertheless it is an opportunity to pose to you a question: namely, where do we draw the line in terms of justice and the legal process? Is this just an open-ended invitation that we as a society, as a Legislature, as politicians have an obligation to fulfil regardless of how large? Is there some point at which economics begin to override the justice system? How do we draw that line?

I could see you coming before us two or three years from now and saying that the complaints have risen from 200 to 400 to 800. This seems to be typical of some of the other, shall we say, complaint institutions that we've heard from in the last week. It worries me.

D. Morrison: First, if a police officer requests a public hearing, he has a right. I think I've spooked them enough that they don't do that very often. In fact, there's only one, and he's withdrawn his request for a hearing. The police don't see this as an opportunity. They may in the future on one or two occasions, but I really think it deals with the circumstances of each individual case.

In the time I have been the commissioner, which is two and a half years, I think I have ordered only eight hearings. There were six per year in front of the old B.C. Police Commission. There are fewer hearings ordered. That's because there's a public interest test being applied.

Now, what if complaints spiral out of control? I have a history of working with the police as a former Crown counsel, and I've represented some officers and so forth. I've had a view from the outside looking in at the police in terms of that issue. I've also had two and a half years of experience now. I would hope that this committee would say: "Just a second here. That's got to stop."

I spoke with the Attorney a couple of weeks ago about this model that was designed for this province. I said I think that because of the jurisdictional challenges and so forth, it's a bit too early to assess whether this model is effective and efficient and is achieving its objectives.

The special committee is required by law to come forward with a report to the House by August. Before my mandate is finished, an evaluation of whether the program is working or not ought to be done. It's not cheap, but it's not something that can spiral out of control.

I think the real issue is police accountability, because they are the power of the state in terms of intervening in people's lives, so you get that tension between the state and privacy rights. It's a matter of trying to draw that line.

I'm not sure what the answer is. I probably was somewhat naïve when I was a prosecutor and was only doing murder trials, when I came into this role. I knew nothing about a lot of this conduct, because my sense was that police accountability was the Charter of Rights and maybe some torts. In fact, the design of this type of model and other ones across the country — albeit they are different — is an attempt to provide a lower-cost, more cost-effective way of dealing with concerns about police conduct. If it doesn't achieve that, it should be changed.

I'm very supportive. It's not something that goes out of control. It has to be controlled.

J. Bray: Just a follow-up question. When you were responding to my colleague Ms. Chong's question, you mentioned that one of your investigators was going to be taking early retirement as a result of the workforce adjustment strategy recently announced.

I'll give you an example. We had three investigators in June. One was on holiday, one went on stress leave, and we had one investigator managing all 12 departments. It really became a problem in terms of trying to ensure the quality of investigations was maintained, time lines were maintained and so forth. I think that before we reduce the investigator role, we really have to consider how to best manage that.

I feel comfortable with three. I know there are two regulations on the books that are ready to be signed off which will give us oversight responsibility for OCA, the organized crime agency, and also for the 18.1 — is it constables?

D. Morrison: Designated enforcement officers. That will increase our workload. I'm not sure how much at this point in time.

I'm satisfied that the level of staffing at this point is appropriately designed. I am satisfied at this point that the registrar position was rightly done away with. With the amount of complaints that we have and so forth, I think that we needed a staff lawyer to deal with the spiralling costs. I'm sorry, but even though I am a lawyer, I was a Crown counsel, so I really didn't have a chance to be on the open market. They just are unbelievable.

T. Bhullar (Deputy Chair): I just want to clarify this. Did you say you needed another lawyer?

J. Bray: I just want to clarify it, if I can. When this investigator takes their early leave, will you be planning to replace that person, then?

D. Morrison: Yes. Recently we have tried to do it by secondment, because that gave us a lot more flexibility in terms of placing somebody in the positions. One problem, of course, is getting them up to speed in terms of their responsibilities. So far, though, we've been very fortunate in the ones that have taken those positions.

K. Krueger: With the greatest respect, when you say you're satisfied with the level of staffing being appropriately designed, I'm puzzled — I mentioned this in some of the other statutory officers' presentations as well — by the height of some of these organizational structures. I tend to look for flatter structures, where an investigator essentially has investigated, reporting to the commissioner without a whole lot of people in between.

With absolutely no disrespect to Ms. Murphy at all, I'm puzzled why you would need a deputy commissioner with the size of your operation and a manager of finance and admin and two admin assistants. If you only have three investigators, it seems to me it's no wonder one of them went on stress leave. Then if one ends up holding the fort, he or she must be pretty stressed too.

I wonder what you think of the comment that perhaps you should have eight investigators and yourself and a couple of administrative support people in your structure.

D. Morrison: Presently, because they don't do actual investigations, I don't think we need that number of investigators. The deputy police complaint commissioner is something that is identified in the statute who in my absence fulfils the role of police complaint commissioner. Even if there's a business trip some place, that person is then in charge of the office and makes those decisions.

I'm satisfied that different responsibilities can accrue to the deputy police complaint commissioner as

well, such as organizing those educational opportunities and so forth. I'm not sure that it's a strong vertical operation. Investigators do come to me all the time with cases. They bring to me briefing notes, difficult files and so forth. There'll be times, as well, when the deputy and I and maybe all the investigators would sit around and brainstorm on a difficult file — what the options are and so forth. It's not an office that's very big on hierarchy.

K. Krueger: Fair enough, and this is no criticism. It's just looking at various organizational charts. This question keeps coming up. It seems to me that even with the statutory responsibility of a deputy, you could have provision for an investigator to become the deputy whenever you were absent — a situation like that. I think for quite some time now, most management philosophies, at least successful management philosophies, include pressing decision-making, authority and autonomy down to the lowest appropriate level and empowering your team to think like a team — as you've just described doing when you make those joint decisions. It's just something I'd like you to think about. I hear what you say about not actually conducting investigations. It strikes me that it would be wise to hire investigators who are skilled as far as keyboarding and using personal computers and so on and who don't need a whole lot of administrative support. You have a team of people all focused on the actual job at hand — hands on. It's just a suggestion.

B. Kerr: That got into some of my questions. What are the qualifications of an investigator?

D. Morrison: One was in firearms here with the Attorney General for many years.

B. Kerr: Oh, I'm sorry — just generally. If you were looking for another investigator, what type of qualities would you be looking for, not specifically the ones you have?

D. Morrison: Usually they have to have experience in investigating. A degree is important. Knowledge of the police environment, especially in British Columbia, is significant.

B. Murphy: It's very important that we have people who can build a relationship of trust with the policing community, which takes a good deal of strength at times. I'm trying to think of what else we ask for. The knowledge of investigative techniques, the principles of investigation and some familiarity with legislation, be it the Police Act or some other experience that shows you know how to read and interpret legislation and provide some guidance to people with the application….

B. Kerr: I'm just throwing this out now. What about a situation where you had a coordinator and then got a volunteer force — a list of names from, say, the trial division of lawyers who could act as investigators on a case? I'm thinking about in my profession. I'm a chartered accountant. We have a whole list of people they call upon to get involved when there's a disciplinary tribunal. They do it voluntarily.

D. Morrison: In the commission for public complaints against the RCMP, they have their core staff, and they have investigators who they retain for short periods of time. That model is one that is in use, as well as in use in Quebec. They do have in Quebec some permanent investigators as well. The SIU in Ontario, which investigates homicides or shootings where the police are the perpetrators or the victims of those things, have a number of core investigators working out of their main office in Mississauga. They also have in the other, remoter parts of the province, those retained when specific incidents occur.

B. Kerr: I'm thinking more on a voluntary basis as opposed to a retainer basis — part of the new lawyers' pro bono policy that I understand they're bringing out now.

D. Morrison: Okay, I'm unfamiliar with any lawyers' pro bono…. [Laughter.]

The other thing, just in terms of having persons come in for doing one or two files or that sort of thing, a lot of the work that the investigators do is really file reviews. They'll go out to the department and work with the specific investigators on it. They'll come back, look at the file and kind of analyze what's there, and then provide that information to myself or to Ms. Murphy.

There is a certain continuity or understanding of the Police Act that's absolutely critical to providing proper analysis and recommendations. That may mitigate against it, but you may have the most brilliant retired person who worked on the Oppal commission that would fit in very well with that situation. I'm trying to keep the budget down, but there are a lot of very skilled, knowledgable people who worked on the Oppal commission and so forth, who are now retired — inspectors and so forth — who would have something to contribute.

John Westwood, for example, was the executive director of the B.C. Civil Liberties Association. I think he went on stress leave but retired from that job. I asked him to do a paper, which is also on the website, on police culture and his recommendations about how to deal with police culture. I would like to see people with skills and special things to offer be used as part of

T. Bhullar (Deputy Chair): Just a quick comment. With respect to this jurisdictional problem, is there any way we can legislatively help you?

D. Morrison: I've made some recommendations to the special committee. I think the Supreme Court of B.C. has helped me very much in terms of their rulings, but when you have a tap which doesn't appear to have a lever to shut it off, lawyers tend to just go and get bigger wheelbarrows to cart the money from the police department back there. There are new and innovative ways that they can challenge jurisdiction.

I am hoping that these matters will be resolved with that Supreme Court leave. I can't see how they would grant leave, for example. This is not anything of national importance, and I know the Chief Justice commented that she felt they were getting too many cases and that fewer cases of national import would be better. I'm hoping that those jurisdictional issues will be put behind us, and we'll be able to move in terms of the hearings.

The other aspect of that, of course, is…. Well, perhaps I won't say about the level of counsel experience. There are some where very experienced counsel come in and say: "We can do this whole public hearing by admissions and just do a legal argument." They've had years. I mean, the last two murder trials I did in Victoria we did in three or four days each, because with experienced counsel on the other side, you can know what the issue is and deal with it.

I'm not sure there's much more that can be done in terms of the legislation. There is one thing. In the BCTV challenge, which might go to the Supreme Court of Canada, what we need is an administrative search warrant. I've made that recommendation to the special committee so that when it's a Police Act investigation, they can get a warrant, judicially approved, but with a lower test for getting access to records and so forth.

At this point in time, I write a letter saying that pursuant to section 50(4) of the act, I am requesting access to records, and sergeant so-and-so will actually be effecting that access. I got a three-page letter back from Owen Bird, saying: "You've got more power than a Supreme Court Justice. We'll let you have it this time, but next time, watch it." That one will be on the agenda for the next struggle. These things tend to go with the territory, and I'm somewhat envious of the other officers of the Legislature, where most of those fights are behind them now.

B. Lekstrom (Chair): Don, thank you very much for your presentation. I do have one request. When I look at page 12 under the budget, we see the 2002-03 — with 2003-04 and 2004-05 not yet determined. We're commissioned as a committee to look at those numbers as well. I would ask if we could have those. Do you have them?

B. Murphy: At the present time one of the things we're looking at is working with other officers of the Legislature to look at the possibility of shared services. That would affect our core budget — whether or not the committee accepts the splitting of our budget into our core operational functions — and unpredictable events will also determine it. In fact, if the committee does not support that type of a split in the funding, our funding for 2002-03 will go higher as well because we would have to add that $372,000 in. Over the course of the next several months, as we explore our options with the other officers of the Legislature, we expect that things could change quite radically. Then the next two years would be different.

We can give figures based on not being able to achieve any economies by shared services and then have to revise those, if that's what you want.

D. Morrison: I think, Mr. Chair, that the assumptions could be stated underneath, and that might be of assistance to the committee.

B. Lekstrom (Chair): That would be of great assistance. I believe the other officers have done that in forwarding us their numbers for the coming years as well, knowing very well that everybody is striving to find economies of scale if they can. It would be much appreciated if you could get that to Craig at the Clerk's office. We would appreciate those numbers.

Well, I see no further questions from members of our committee. Again, I would like to thank both you and Barbara for coming and taking time out of your schedule to present to our committee. We're looking forward to this new challenge they have given us as well.

B. Lekstrom (Chair): We will take a one-minute recess. If I could ask committee members just to stay around. We will have to reconvene to go over the process that we will follow.

B. Lekstrom (Chair): We will now reconvene the Select Standing Committee on Finance and Government Services meeting. Now that we have concluded hearing from the seven statutory officers of the Legislature, I would like to just briefly go over what direction we go in from here. We are commissioned to draft a report and put recommendations forward.

I believe that we will be back next week, on the 5th, with a Public Accounts meeting in the morning. I be-

lieve that most members are tied to both committees. I am going to try and schedule a meeting, hopefully, this afternoon or tomorrow. I will have a memo out to you with the time and date and place of that meeting, if we can accommodate the 5th, so that we're all here. If it has to be a day on either side, I believe it would probably be the earlier one, but we will look towards accomplishing that.

With everything we have heard in the presentations and in the short time frames that we have had to hear from the statutory officers, it's then incumbent on us to take that information and go through it and thoroughly review it and write down our own recommendations as to what we believe is good or bad — budgets, service plans and so on. What I would like, if we could begin that process…. I think we could probably be further ahead if I ask you to draft your views on each of the presentations we've seen, with recommendations or ideas that you have regarding each of the statutory officers. Could we get that information from each member by late this week, if that's at all possible? Forward it to Josie at the Clerk's office. Would that be appropriate, Josie?

B. Lekstrom (Chair): We will then begin the process of trying to put together a draft by accumulating all of the information we've had, submit it together and then, at our December 5th meeting, begin a process of discussion as to what this committee would like to see in recommendations. Ralph, you had a question.

R. Sultan: To fulfil your request, Chair, would it be possible, perhaps even from memory among the members present, to refresh my memory as to the amount of the requested budget under each of these seven categories? We have the police complaint commissioner at $1.7 million. Does anybody recall? I remember a bit of Mr. Kushner at about $5 million. I think this is important.

K. Krueger: We have them in our material. They each gave us a handout with their requests for budgets.

K. Krueger: I wouldn't want to do it off the top of my head. It's all on my coffee table.

B. Kerr: What are we looking for in our recommendations re to make recommendations with regards to, let's say, Kevin's comments? The organizational structure? Are we making comments just to what we think the budget should be? Are we going to make comments about what they're actually doing, what their mandate is? What is our role here?

B. Lekstrom (Chair): The way I understand it, all of the above — right from their service plans to their budgets. When we have listened to the presentations from each of the officers and we go through the written material, if we as individual committee members see methods that could make them more efficient, more accountable, run a better organization, whether we believe their structure is top-heavy or not heavy enough, whether they need more people or fewer people…. I would encourage the members to cover all of that ground.

H. Bloy: Would you say that these committees of the Legislature run to the same environment as all the ministries are: 10 percent over three years and looking at 20, 35, 50 percent cuts?

B. Lekstrom (Chair): I think we have to look at everything. I don't believe anybody can feel exempt from the situation that all British Columbians face right now. I think there are challenges they're going to have to face.

K. Krueger: If we review the Hansard, each of the officers is in a situation somewhat unique from the others. There are some who anticipate legislation changing their mandate, which may increase or decrease their workload. Then there are others, given the fact that we expect the size of government to diminish, whose workload should probably diminish in tandem. We'll want to have a look at all of those things. I think, as the Chair suggested, it would be really helpful if we do it independently rather than…. I'm tempted to jump right in and start making some general observations right now, but they might be different from other people's general observations. If we consolidate those through Josie, we'll have a much better meeting next week.

J. Bray: To follow up on what Kevin said, some of them have quite specific legislative mandates and time lines, and some are more general. I think that a quick review of the general legislation will help us when we're reviewing some of those other aspects with respect to what potential changes in the size of their FTE count might do to their being able to meet their statutory obligations. I think a review of legislation is helpful when you're doing that.

R. Sultan: I see from the news summary that was distributed to us a few moments ago that the Leader of the Opposition has filed an FOI request concerning some earlier drafts of the final report concerning our consultation with the public and alleged modifications in text, and so on, that were made. My question, Chair, is whether the text of discussions held in camera, for example, or memos such as you've requested, would be subject to FOI.

B. Lekstrom (Chair): That is a question I can't answer, but I believe they're not FOIable under this as a select standing committee of the Legislature. As was

pointed out, although it is not FOIable, it is privy to the members of the committee, of which Ms. MacPhail is a member, so she would certainly be entitled to see all of the information that's put forward. The FOI request is unfortunate. As a member of the subcommittee, she failed to show up at the whole committee meeting, which has the ultimate say.

K. Krueger: Further to that, before she made false allegations, she could have always read the Hansard transcript, and she would have seen exactly how the resolutions were boiled down. The process was to make the third one similar to the first two in that it didn't editorialize on the recommendation itself. I think it would be nice for the committee to informally recommend that she review the transcript and apologize to the Premier.

B. Lekstrom (Chair): Well, we're certainly on new ground, for myself, here. We can go over that. I think it would be appropriate for this committee at our next meeting, if we would like, to deal with that as a formal issue of the committee versus bringing it up here this afternoon. But please keep that in mind, and we could deal with that. Hopefully, the member would be at the committee joining us — of which she is a member. At that time, certainly, I would welcome that debate as the Chair.

B. Kerr: Out of curiosity, why would she have to go through FOI when she's entitled to all the information here?

J. Schofield: I just would like clarification about what the committee expects Audrey and me to prepare for next Wednesday's meeting. If I receive a copy from each member or a majority of members, I presume you'd like me to arrange it in some reasonably coherent way rather than just put it in a binder and give it back to you.

B. Lekstrom (Chair): I would like it coordinated from each of the members. I'm sure there may be ideas shared by many members of the committee as far as service plans or budget plans. If we could gel the issues together that have similarities, put the points in point form — the ones that are outside…. I would really like to have the foundation for the report that we are about to write and, after our full discussion at our next meeting, have given you the direction as far as drafting the report and what should be included.

J. Schofield: What Audrey and I are currently doing is actually reviewing the transcripts and trying to produce a précis of the members' concerns with regard to each officer's presentation. We're obviously not delving into the recommendations aspect of it, so your input would be very valuable in terms of where you see the direction for the next year. I think we will proceed with our own paper so that it would look more like a report next week, if that's all right.

B. Lekstrom (Chair): Very much. If I could ask the members, if Friday at noon is the cut-off to have the information put in, we will take the information from Friday at noon, and Josie will try and coordinate that into the information she'll bring to our next meeting.

R. Sultan: Chair, this is one occasion when a statistical approach might be appropriate for the benefit of our researchers: namely, I see a very important if not the most important mandate we have as budgetary. It would be extremely helpful for each member of this committee to submit his or her views on the size of the budget that we see forthcoming over the next three years for each of these officers. As a first approximation, we could have our researchers average our replies. It would be interesting to see what we come up with.

Clearly, we're in straitened circumstances. I certainly feel there are some priorities in importance in terms of the officers who have appeared before us. I think we have an obligation to come forward with some cost-saving measures consistent with what our individual sense of priorities might be.

B. Lekstrom (Chair): That's a very good point, Ralph. With all of the information we have garnered from each of the seven members who have presented to us, certainly the key is the budget issue. Although many members will have an idea surrounding different legislative officers on how they can possibly improve or enhance what they do, the key issue is truly budget.

I. Chong: I just wanted to follow up on what Ralph was saying. I think it would be beneficial if we all did submit an idea of where we think there should be changes in the statutory officers' budgets. I'm mindful of the fact that I think we agreed not to actually put a dollar figure or percentage in our final report. If I'm incorrect, then fine.

If we see a general consensus for one particular statutory officer and we agree — if each of us has varying degrees of decrease, for example — then our budget would say: "We recommend that this office be decreased." If, for another office, it is clear that all of us agree that it should stay the course or be status quo, there would be that kind of recommendation.

In a previous discussion we had, was there not a concern that if we put forward those recommendations, that would pre-empt the Treasury Board and the Finance minister's work in terms of detail of information? That's where they'll get the actual budget figures. I didn't know whether we were going to get that close to providing actual percentages on that, so I just want that for clarification.

B. Lekstrom (Chair): We did seek clarification on that concern, which was expressed at our last meeting, and our recommendations will concern budgetary issues.

I. Chong: Percentages? I realize budgetary issues, but percentages? Or are we just going to say: "This officer increases, this one decreases, and this one is status quo"? That's where I'm coming from. In our report, are we actually going to put percentages? Is that what we should be doing?

B. Lekstrom (Chair): I would leave that discussion up to the committee, but to be vague as far as increase, decrease or status quo, I don't think that is going to be as effective as this committee should be.

B. Lekstrom (Chair): All right. I see no further business. Is there any new business to be brought before the committee this afternoon, prior to adjournment? I will endeavour to have a date and time out to you for our next meeting if not later this afternoon then by tomorrow morning. Hopefully, we can tie it in with next Wednesday.

Committee Staff:	Josie Schofield (Committee Research Analyst) Audrey Chan (Assistant Researcher)

REPORT OF PROCEEDINGS (Hansard)

SELECT STANDING COMMITTEE ON FINANCE AND GOVERNMENT SERVICES

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
FINANCE AND GOVERNMENT SERVICES