2011 Legislative Session: Fourth Session, 39th Parliament

SELECT STANDING COMMITTEE ON FINANCE AND GOVERNMENT SERVICES

MINUTES AND HANSARD

MINUTES SELECT STANDING COMMITTEE ON FINANCE AND GOVERNMENT SERVICES

Monday, November 21, 2011

4 p.m.

Douglas Fir Committee Room

Parliament Buildings, Victoria, B.C.

Present: Rob Howard, MLA (Chair); Doug Donaldson, MLA (Deputy Chair); Bill Bennett, MLA; Mable Elmore, MLA; Dave S. Hayer, MLA; Pat Pimm, MLA; Bruce Ralston, MLA; Bill Routley, MLA; Dr. Moira Stilwell, MLA; Jane Thornthwaite, MLA.

1. The Chair called the Committee to order at 4:04 p.m.

2. Pursuant to its terms of reference, the Committee continued its review of the three-year rolling service plans, annual reports and budget estimates of the statutory officers.

    The following witnesses appeared before the Committee and answered questions:

3. The Committee recessed from 5:05 p.m. to 5:08 p.m.

4. The Committee adjourned to the call of the Chair at 6:09 p.m.

The following electronic version is for informational purposes only.

The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

select standing committee on
Finance and Government Services

Monday, November 21, 2011

Issue No. 65

ISSN 1499-4178

[ Page 1793 ]

MONDAY, NOVEMBER 21, 2011

The committee met at 4:04 p.m.

[R. Howard in the chair.]

R. Howard (Chair): We are at the Select Standing Committee on Finance and Government Services, Monday, November 21, for the annual review of statutory officers' three-year rolling service plans, annual reports and budgetary estimates for fiscal 2012-13. We have two officers coming today: the Ombudsperson and the Police Complaint Commissioner.

For members and for the record, we have on our desks in front of us the responses to questions asked of the Auditor General. As you recall, we wrapped up the last meeting with members reading some questions into the record, given shortage of time. So we have received those.

[1605]

First up, as I've said, we have the Ombudsperson, Kim Carter, and Shelley Forrester, the executive director of shared corporate services.

As you know, Kim, we've got about an hour set aside for you. I'll keep a list of questioners as you go through your presentation. Hopefully, we'll have some time at the end of your presentation for some questions. We'll send the microphone over to you.

K. Carter: Thank you very much, Mr. Chair, and my thanks to the committee for this opportunity to come and speak to you. I will begin by saying that, as I indicated last year, I've had such a positive experience. I am actually seeking access to another committee, since this is the only committee that I get to speak to. I won't cover that in any more detail, but I did just want to put it on the record. Both the Chair and Deputy Chair have received a copy of a letter that I've circulated in that regard.

The way I would approach this — if it's satisfactory to you, Mr. Chair — is that I will talk a little bit about the role of the office, because we have a rather unusual name, and sometimes it's not entirely clear what we do; talk about our 2010-11 performance results — both a quantitative analysis and documented experience, which comes out of the annual report that you have in front of you; a short discussion of our progress on the current year to date; a discussion of the 2012-13 priorities and budget request; and then finish by very briefly mentioning the rest of the submission on 2013-15, if that's suitable.

R. Howard (Chair): Sounds good.

Office of the Ombudsperson

K. Carter: Thank you very much.

The term "Ombudsperson" or "Ombudsman" is a somewhat obscure or difficult title to live with sometimes, but the alternative which is found in some provinces, of "Citizens' Representative," actually has its own inherent problems, as well, so we're happy to continue with the Ombudsperson title.

In essence, what our office is designed to do is help restore the balance between the bureaucratic system and the ordinary person. We work very hard to ensure that people are not treated as a number or a statistic or a problem but as individuals.

We deal with all provincial legislation and services, all local government and local services and legislation, except when this is specifically excluded. Two examples of that would be two of my colleagues, the Information and Privacy Commissioner and the Police Complaint Commissioner, who have mandates that effectively exclude the oversight of the Ombudsperson from those areas. But in most other areas we have jurisdiction.

One of the things that we try to keep in mind is that most people's most regular and formative experiences of government come from their everyday encounters with government bureaucracy. That's the part of government that implements the laws, regulations and policies, and the part of government that makes the numerous decisions that affect people's lives: access to health care, provision of benefits, support for a child, collecting money from people on behalf of the government, granting or taking away a licence, supporting an injured worker or caring for a senior.

Our role is to be there if those regular, recurring encounters go awry, to help the ordinary citizen who has not been treated fairly or reasonably. In essence, we give those people a voice. We also help the institution that has made an error in dealing with that person on the path back to good administrative practices. We act as a central institution for the preservation and promotion of principles of good governance in a democratic society, including legality, accessibility, equality, respect, choice, consistency, fairness, impartiality, flexibility and effectiveness.

We work to ensure that these are experienced by people in their dealings with their government. We do this through a variety of means — through education; through the sharing of expertise, providing information, advice and referrals; through our early resolution program, the investigation of individual complaints, and systemic investigations.

[1610]

The reason that our office exists is because the relationship between government agencies and the people they serve is not one where it was felt that an adversarial and expensive dispute resolution process such as the courts is necessarily seen as the best approach. The Ombudsperson investigative and resolution system is one that is focused on fixing problems and improving the system, and it's highly effective.
[ Page 1794 ]

In summary, the Office of the Ombudsperson ensures citizen access and fair treatment and provides lessons in good governance. It takes a bottom-up approach to ensure that government policy implementation, programs and practices actually contribute positively and don't risk becoming part of a problem rather than part of a solution.

The unique strength of the bottom-up approach is that it engages the ordinary citizen in the process. It resolves actual problems, for the most part in real time, for individuals and public agencies, and it builds from these individual instances to improve wider administrative practices and ensure better service delivery.

The history of the office in British Columbia starts in 1979, but the whole concept of the Ombudsperson originated many years ago as a Scandinavian concept in Sweden. Nine of ten provinces and one territory have a provincial or territorial ombudsperson. At the federal level, while there is no federal ombudsperson, there are sectoral ombudsperson offices for people who are seen as needing special protection — veterans, soldiers, prisoners in federal institutions.

Internationally, about a hundred countries have national or provincial state ombudsperson offices, and the concept is very active in Central and South America, eastern Europe and Southeast Asia.

In British Columbia this office is the second-oldest office of the Legislature. The Auditor General is one year older than we are. In terms of budget and size, we are four out of the eight officers of the Legislature. Essentially, the Auditor General, Elections, the Representative for Children and Youth, followed by the Ombudsperson, the Office of the Information and Privacy Commissioner, Police Complaint, Merit and the Conflict of Interest Commissioner.

I am going to spend some time just to put the current budget request in context, so I would appreciate your indulgence as I talk just a little bit of history and more general context. In 2002-2003 the Office of the Ombudsperson had a staff of 50 and a budget of $4.765 million. In 2011-12, the current year, we have a staff of 33 Ombudsperson staff, and we provide 13 staff to support three other officers of the Legislature, four offices in total. So given our proportion of that, I would say a staff of 38 and a budget of $5.372 million. That would be an increase over that nine years of about 13 percent.

In terms of provinces across Canada. In essence, Ontario and Quebec are, of course, the two largest in terms of staff and budget, followed by British Columbia, Manitoba and Saskatchewan and then Alberta and Nova Scotia. Each of the offices of the Legislature, of course, have different mandates, and so, actually, do each of the Ombudspersons across Canada.

British Columbia has the widest jurisdiction of any of the offices. It includes provincial ministries, commissions and boards; Crown corporations; local governments; health authorities; school boards; colleges and universities; various pension boards; self-governing professions and similar occupations.

What we do is focus on ensuring that there are fair and reasonable processes that apply to people. When I talk to local governments, in particular I stress the importance of a fair process so that the way a matter is handled doesn't outweigh the virtue or the defects of the issue itself.

[1615]

Our focus is very much on administrative fairness. We deal with issues of the adequacy of information, the availability of equitable access, standards, how those standards are monitored and enforced, and how complaints are resolved.

The kinds of issues that we deal with on a daily and recurring basis include delays in dealing with issues and responding to people; poor communications practices, leading to wrong decisions; staff not following the rules, either because the rules are unclear or because training is inadequate; discretion not being exercised or being exercised for the wrong reasons; poor policies; and sometimes simply non-compliance with legislative requirements.

Between 2003 and 2006 the office went through a period of contraction, and it did not fulfil its full mandate. It essentially stepped back from a number of areas. The mandate was restored at the end of 2006, and this was followed by an increase in intake from 2007 to 2010. These increases were addressed through the implementation of a number of innovative programs. We established a systemic investigation team for the first time and also an early resolution process.

However, our intake started to significantly exceed our capacity to deal with issues, and we initiated a file-awaiting-assignment process on a temporary basis in September 2009. We had a slight dip in intake in the 2010-11 fiscal year. It went down roughly 10 percent, and that allowed us to help maintain our ability to address some of the strains. But intake is up this year, and currently it's up 8 percent over last year. Essentially, we're back to where we were a couple of years ago.

Let me talk about our 2010-11 performance results, because you are my committee, and I do need to report to someone. I'll do it in a quantitative and then a documented-experience approach.

Quantitatively, we have 7,500 inquiries and complaints. Thirty-five percent were resolved at our very first level; 38 percent were assisted by our complaints analysts; 4 percent by our early resolution staff; and 23 percent of the files went to files awaiting assignment.

The files-awaiting-assignment list feeds into our three investigative teams: the health and local services team, regulatory programs team and social programs team. I would point out, if I could, that the health and local services team is essentially a team that's there to address the
[ Page 1795 ]
areas that we were not serving during the cutback between 2003 and 2006. So we have a team that is predominantly engaged in addressing those complaints, now that we're there for someone to come to.

Each team has a manager and five investigators. Health and local services, as I've said, are predominantly health and local government issues. Our regulatory programs team deals with Workers Compensation, ICBC, B.C. Hydro, the Ministry of Environment, the Ministry of Forests, the Ministry of Solicitor General and similar complaints. Our social programs team deals with the Ministry of Social Development, the Ministry of Children and Family Development.

In fact, you may be interested to know that our complaints from the Ministry of Children and Family Development have always hovered around 12 or 13 percent, and they went up slightly between 2009-2010 and 2010-2011.

So 1,677 files were assigned; 1,739 files were closed. There were, on March 31, 228 files awaiting assignment. As I said, this is very much a focus of the budget submission this year. I will make the point that it is up from 176 at the end of the previous year, and I will explain to you the steps that I had to take in order to keep it at that level.

[1620]

Traditionally, the work that we do deals with different groups, but I will ask you to bear with me while I quickly go through some of the issues that are in our annual report and that deal with the traditional groups that face barriers. We deal often with people with disabilities, with youth, seniors and people in provincial custody facilities.

I will talk about the annual report, which you have in front of you. I'll just refer to page numbers. If you are interested in more details, then I would invite you to go there.

In our early resolution there are two cases that we have highlighted amongst the 300 that were dealt with last year. One involves WorkSafe B.C., and it was a wage-loss benefit cheque. Essentially, it was an issue of unreasonable delay, where the injured worker and his family were waiting for the cheque and couldn't get it. This is on page 19 of the annual report. The work of our office resulted in it being forwarded promptly to them.

Another early resolution, which you will find on page 20, involved the Ministry of Social Development. In essence, it was a lady who'd come to us in November of 2010, and she was needing assistance to keep her hydro, and consequently her heat, on. There were some poor communications, which we managed to cut through, and as a result, her problem was resolved. These were a couple of early resolutions.

It highlights, also, some of the areas which we work in — delay and poor communications. We look at them individually, but we also look at them more systematically. On the issue of delay, we do focus on different agencies within government from time to time to look at how they are addressing this. With poor communications, one area that we have found and are looking at is the issue of 1-800 numbers and how they work and how they don't work for different groups.

In terms of the actual investigations, I've mentioned, as you'll see on page 77, that children and youth files are our second largest, at 13.6.

We also have a focus on seniors, and you will find that a number of our cases are organized by seniors. They are less easy to identify, but they're an equally significant group. There is a significant percentage — having looked through the information we have, we think about between 25 and 33 percent of health authorities, Public Guardian and Trustee, superintendent of motor vehicles and PharmaCare — which relate to seniors.

I'll give you two sample cases, just for reference, which hopefully illustrate kind of the short and long version of what we might do for seniors.

On page 28 there's an issue that relates to the superintendent of motor vehicles. The gentleman in this case, an elderly gentleman, had his licence taken away after an accident. In fact, it was due to brakes failure, but the police report never got properly conveyed to the Office of the Superintendent of Motor Vehicles.

He was involved in going through their process to try and get his licence restored, in particular because his wife had suffered a stroke and was in care and, without his driver's licence, he could only take a long taxi drive, an expensive one, to see her.

He was told there was going to be a significant delay in the appeals process that he was going through. We looked into it and looked into the delay. Happily, the delay got resolved. He had the opportunity — and all he was really looking for was the opportunity — to redo his test to show that he could drive properly. He passed his test, and he was able to visit his wife. So that's sort of a very quick story.

There's a much longer one, if you look at page 54. This is actually a case that's only a case that deals with a senior because it began more than 30 years ago. It involves expropriation by local governments.

[1625]

In essence, there was an expropriation in the late 1970s. Although the expropriation was not unlawful, there was an error by local government in paying the moneys into court. Essentially, they were paid into the wrong name, so this frustrated the attempts of the rightful owner to access this money for many, many years.

Eventually he ended up coming, through his MLA, to our office, and we became involved. There were a number of challenges with the issue, including the fact that the city no longer had any of the documentation that related to the issue, so they weren't quite sure how they could resolve it, though they were sure they had done nothing wrong in the process.

Fortunately, the gentleman, although he was something of a character — liked to live out in the woods a lot
[ Page 1796 ]
— kept his paperwork. We had a look at it, we reviewed it, and we forwarded it on to the city and suggested a resolution. The city reviewed it and agreed, so they obtained an order to get the name changed. That allowed this gentleman to go into court after 30 years and get the money he was owed. That's kind of at the other end of this.

I'm just going to give you one more, if I can have your indulgence. It's something that gives you an idea of an individual case that actually is leading up to a positive legislative change. I'm just going to look up the page number on that, because of course, that's the one which I didn't write down. It's page 60.

This involves WorkSafe B.C. It really is the example of some of the more complex work we do in identifying legislative problems. New legislation comes in, with good intent, but sometimes problems result. New problems are created as the old problems disappear.

This is a focus on the WorkSafe B.C. process. I'm sure a number of your offices and a number of you have dealt with it, and you know it's a not a simple, straightforward process. In the process of determining what people are entitled to, there is a decision process and then, after that, reconsideration and appeal. Several people came to us with difficulties that had resulted because of the time limits imposed on these processes.

WorkSafe B.C. has a 75-day limit on its own reconsideration of its original decision. If it finds a problem, it can fix it within 75 days. People can appeal for up to 90 days. But if there's no appeal and WorkSafe discovers its own error after 90 days, it has no ability to remedy it.

For example, if WorkSafe B.C. discovered that its own adjudicator had used the wrong wage rate to determine the amount awarded and the person was not getting the amount they were entitled to and they discovered this after 75 days and if the worker or the employer hadn't appealed, there was no way to fix this, which seemed not only unfair but unreasonable, since WorkSafe B.C. was happy to admit there was a problem that they wanted to fix.

From their perspective, this was an issue. We thought it was wrong. What's happened is that there has been some change to their policy so that they can include this under a "special circumstances" exception. Initiate procedural changes is the next step. Essentially, it's been fixed in the interim by a policy change. We're now looking to change legislation. We have one investigator in my office who is pretty happy that she will be able to point to a section of legislation that's been changed as a result of her work.

Last year…. I will just follow up our systemic report on seniors. Our work in that area continued, and we did a follow-up of the improvements and the ongoing work that was being done in the areas of drinking water safety, improving the income assistance process as a result of our first report on seniors care, which was issued in December 2009.

Finally, we had two Ombudsperson conferences in British Columbia, which I think is the first time that has ever happened: the Canadian Council of Parliamentary Ombudsman here in Victoria — and I'd like to pass on my thanks to both the Speaker and the Lieutenant-Governor for hosting my colleagues and myself — and also the more broadly based Forum of Canadian Ombudsman.

[1630]

Our office is involved very much in that organization, which is not only parliamentary ombudsperson but ombudsperson in different commercial entities, because the ombudsperson role has moved into corporate entities and also universities and other not-for-profit entities.

In particular, we've been asked to follow up on some work we've done on doing systemic investigations as a smaller office.

In the current year to date, as I've indicated, our intake is up. Fortunately, we have not had a similar increase percentage-wise in the number of files going to investigation or early resolutions, so currently the pressures on that area are the same as they were last year.

The file-awaiting-assignment list is still being very actively managed to try and keep it at under 200. We have our three investigative managers involved, and last year I had asked for funding for a manager-of-investigation assistant to work with them. We have that position.

What we are doing right now, and one of the things that I will be bringing to you, is…. We have found that we can expand our student program and use some of the students as part-time assistants to the manager to assist in managing these files. One of the things I'm going to be talking to you about is to maintain that funding for the MOI assistant, but we're actually going to be combining it with, essentially, student employment and expanding our student program.

We've also worked on three innovative team projects to try and deal with recurring issues that we think can be resolved and which we hope will eventually reduce complaints. The first one is in local government. We have been developing material for local governments about when closing meetings is legal and appropriate and the proper procedure to follow.

We presented this first at the UBCM, and it was very warmly received. In fact, what we were asked is: "Why aren't you doing it for other groups, such as schools boards and improvement districts?" We said we needed to finish up what we are doing first, and we hope to have that out before the end of the year.

Again, the way I deal with systemic investigations is…. When we have a number of complaints and we can see an area where, if there's better understanding and training, we might avoid them — that would be our focus.

We are also looking at similar work in the social programs team on reconsideration issues and on the regulatory programs team with inspections of correctional facilities.

On seniors, part 2. That has now gone to the authorities. Most reports that you will see from ombudsperson
[ Page 1797 ]
offices — and, indeed, a number of my colleagues — will focus on one entity. To do this properly, we have had to engage two ministries — it was three for a while, but it's now back to two — and five health authorities.

It's a very large project, and it's coming to fruition now. The report, I anticipate, will be over 300 pages, and it focuses on our administrative fairness issues of information, access, standards, monitoring, enforcement and complaint resolution, as well as some specific issues that are unique to seniors care.

Hopefully, this would allow me to move now to the areas where there are particular strains and which I have highlighted in the budget request. The first and the most significant is the files-awaiting-assignment issue. It was introduced as a temporary measure.

I would point out that we are the last resort for people, so when they come to us and we have to put them on a waiting list, that really is not something that is fair or reasonable. It increases delay.

[1635]

While our staff work very hard to maintain, essentially, our timelines of resolving matters within a three-month, six-month and one-year timeline and are doing well. You'll find that in our report.

I can tell you, equally…. I have a chart here, if you're interested, which shows how badly we're doing if you count the files that we're not dealing with. They are not, obviously, something that the investigators are charged with resolving. They resolve them once they get assigned to them. It's a very different situation if you incorporate the files awaiting assignment.

In addition, I have taken the step — as I indicated last year to the committee and I will indicate again this year — on a temporary basis, of taking resources away from our systemic investigation to try and hold down the file-awaiting-assignment list. With that, essentially, the file-awaiting-assignments is lower because resources have been taken away from the systemic investigation. It's not something I can continue and get the systemic investigation completed. I've had to end that.

For files awaiting assignment, as I've indicated, I do need two investigators. You will see in the service plan there are some charts which really tell you what will happen if we don't get those two investigators, which is, essentially, that we'll keep going up and up. That's with no increase. If we have a modest 2 percent increase, we kind of go right up to the top and over the edge.

What I would say is that from my perspective, we have looked at managing this through various approaches for the past two years. I think we've demonstrated from the past, between 2006 and 2009, that when we have some modest increase in resources, we do manage things very well. But this has got to the stage where there isn't an alternative. It can't be managed anymore, and that's simply with the current intake or a very modest 2 percent increase. That is really what I'm asking the committee for.

Equally, as I've said, I've essentially looked at systemic investigations and consciously delayed the completion, because I have to try and keep the list to a manageable size. So I'm also asking for an additional position on the systemic investigations. I think the ones that we've done in the past few years have demonstrated an ability to get really good results and to avoid problems. That's the second part.

Then the third area that I've looked at and that I'm asking for at this time is a deputy ombudsperson position. We do not have one. We have not had one since 2003, and the effect of that is that we have lost the capacity to do what I would call preventative work, because we are focused on work coming in.

Given that, what I would say is that for the offices of more or less equivalent size, I think most of them have a deputy ombudsperson. Certainly, my colleagues across Canada have that position. I don't have anyone who I can take. I don't have any positions that are overage. I think it would really enhance preventive ombudsmanship if that position was established. That is the third request that I'm looking for.

If you're looking for examples in the annual report where I think that kind of work would have been useful, on page 27 we have the family maintenance enforcement program, where there was, essentially, a policy defect that if we'd had a look at this before it had gone out and been established, we could have pointed it out to people. Based on our expertise, we know certain things will go wrong.

A second one is on page 33, with the patient care quality office process. In that case it was not explaining results to complainants — something that you might think was pretty straightforward but wasn't an inherent part of their process.

[1640]

I have very carefully considered this request. You will notice that we don't have any increase in our other areas, other than the things that we have to do with the increases and increments and similar things.

I am cognizant that, of course, you have to balance this against other demands, but what I would say is that I do think that as the last resort…. To say you have a last resort but you can't go to the last resort and get assistance in a prompt and reasonable manner is really not fulfilling our mandate.

I will ask you to put it in context. I think when you look back over the past ten years, the Office of the Ombudsperson has had a much lower increase than most of the other offices of the Legislature. I'm sure your investigative staff can tell you what the budget increases have been in different offices. I realize it's not across the board, because of course there are changes in mandate.

I think this is something that's necessary. It's necessary now. What I would say is, stealing the words from someone I heard recently: "It's kind of like watching something go over a cliff in slow motion. You can see
[ Page 1798 ]
and it doesn't look too bad, but once it gets to a certain point, you're not getting it back." I do think we're at a tipping point. I would ask the committee to take that into account. Overall, with the increase, it's $1.33 per person in British Columbia to have the last resort.

I have left some time for questions.

R. Howard (Chair): Thank you, Kim. We have a number on the question list.

B. Bennett: Thank you, Kim. Just to make sure that I understand your budget request, it looks like you're asking for four staff from STOB 50 and 52 and 1½ FTEs for shared services.

K. Carter: Yes. That's not all for our staff. Thank you for the opportunity…. It was my defect in not covering off shared services.

As you know, Mr. Bennett, we're providing the shared services support for four offices of the Legislature. This is a process that began in 2004 and has developed further. It's a very efficient one. Overall, the costs are less than 9 percent for the offices, for the shared services.

This increase was to cover off, essentially…. As more staff are added, they actually do need more computer support and other things. In addition, as other offices get additional mandates and additional responsibilities, sometimes that comes with new contracts and other things, which the staff of the shared services provide. To cover that off, it's 1.5, but that's both, for historical purposes, for some increases last year, where we didn't ask for additional shared services, and also for requests this year.

B. Bennett: So the $107,000 and the $17,000 are actually not four FTEs. You're characterizing it as FTEs, but they're going to expenses associated with the shared services.

K. Carter: Exactly.

B. Bennett: But they are for your office?

K. Carter: No, they are for the four offices combined. That's one of the reasons I've tried to separate this out. I think it's probably best done on page 8 of the budget submission. I have my core services, the same as the other three offices that are in the shared services arrangement. So that's that budget.

The shared services budget, we all contribute to. As it happens, it falls under my hat. Currently it's 13 staff. It would be 14.5 if the additional staff is approved. I can't say to somebody: "Stop handling those finance requests or that IT request from one of my colleagues; I need you here." Those are very much shared services, and so that's how we've treated them.

[1645]

B. Bennett: So STOB 50 and 52 — the $476,000 and $117,000 — are for four FTEs, four actual persons?

K. Carter: Yes. This is which page, can I ask?

B. Bennett: Page 8.

So you said… I caught that there were, I think, two investigators amongst that four, plus a deputy omsbudsperson. See, we should change the name, just because it's so hard to say. But I didn't catch what the fourth….

K. Carter: It was three investigator positions — two for, essentially, the investigative teams and one for the systemic investigations, and then the deputy ombudsperson position.

I think what I tried to do was set out a little bit on page 3. It's the second-last paragraph which tries to separate those out. We did page 8 because we thought it would make more sense, but I'm quite prepared to say that it may have complicated things.

R. Howard (Chair): Okay. We may need some additional information as we move forward.

D. Donaldson (Deputy Chair): Thanks for the report. I especially enjoy the annual report and all the short stories in there. Maybe it's a bit of a geeky thing, but I quite enjoy reading them. It gives a good snapshot of what you're doing around the province.

My question follows a little bit along the lines of MLA Bennett's from the aspect of the three investigative officer positions that you're proposing in this budget submission and then relating it to page 8 in the service plan with the charts.

Looking that you're projecting by 2013-14 you've eliminated that "open files awaiting assignment" red bar, which is fantastic…. I assume that's because the third investigator is picking up the increased workload in the blue portion of the chart.

What would you project out past 2013-14 that it would look like on this chart if there were only two additional investigators in the upcoming budget? In other words, how long would it take for that red bar to be eliminated then?

K. Carter: Well, I think what I would say is that unless, again, we stole from Peter to pay Paul, my concern is it won't be eliminated. What I've said is two investigative positions for that. The truth is the third one will let us do it very easily. We can move them back and forth if we need to, but what I would say here is that my biggest concern is…. You'll see in both of these I've said two additional investigators at the top. The two additional investigators, if there's no increase at all, can deal with this problem. But if there's more than a 2 percent increase, then we're just going to go into exactly the same place again.
[ Page 1799 ]

What I would say there is that I've asked for the two investigators because I want to be realistic and say: if we keep increases here to zero or 2 percent, we can get rid of it in two years. The third investigator is really for the systemic investigations to allow us to do them in a more timely fashion. If there's an increase that's greater than 2 percent, then we will have a little ability to move that person on a temporary basis and then can hopefully cover off until we come in front of the committee with another request.

Really, the two investigators are strictly to deal with the problem we've got now that's been brewing for two years, and you can see where it's going in two more.

J. Thornthwaite: Can you explain the travel? It's $60,000. I'm just wondering if you could explain that.

K. Carter: Yes, I can. It's twofold. I'll be frank: we're usually pretty economical on travel. The main thing is the Ombudsperson tours.

My most recent tour was Smithers, Burns Lake, Vanderhoof and Fort St. James. It's myself and two of my staff. We go out and we hold an Ombudsperson office for the day in those communities, and I visit different authorities.

[1650]

We try to do three a year. We didn't manage three in this fiscal year, in part because I couldn't take the investigators away from investigating without exacerbating the files awaiting assignments, so it's sort of connected.

That, and then the rest of the travel is essentially to and from the Lower Mainland. The office in Vancouver was closed in 2004. In 2007, I made a request to reopen the office, which was not accepted. This year we have ended our telecommuting program, so we have to send everyone here. It's basically going back and forth and doing Ombudsperson tours.

M. Elmore: Thank you for your presentation. Tell me how many current investigators there are working now and how many current systemic investigators.

K. Carter: Okay. Well, as of when I moved someone back, we have 15 investigators, and we have two investigators on the systemic investigation team. The one additional one would be a 50 percent increase. We could do a lot with that 50 percent.

What I will say as a really bright light in all of this is that over the past about four years we have addressed our demographic issues at the investigative level. You will hear from different people about staff levels. The office has that coming in the next three or four years at the management level, but at the investigator level we have hired a number of really good new people.

Interestingly, the bulk of our latest hires are young lawyers who are coming from private practice, a number of whom took pay cuts. You might say: why? The answer is: because they find the work so interesting. They get to help real people with real problems, and they get to improve public administration in the province, and they think that that's just great.

M. Elmore: I was just interested. You mentioned that you looked into the 1-800 numbers and what worked and what didn't work. Can you talk about that a little bit?

K. Carter: I can say that we're still working with a couple of the ministries on that. You will see from some of our early resolution cases in the annual report that sometimes people come to us because they've tried to get through. One of the things that we're doing with the ministries is essentially saying we'll also do some tests. It depends on who you're serving whether or not having everything on line or whether everything as a 1-800 number works.

One of the examples you will see in the early resolution was a lady — it was Social Development; an income assistance issue — who didn't have a phone. She would get on; she couldn't get through. Or if she got through, it said to leave a phone number, but she didn't have a phone number to leave. We eventually managed to get things sorted out so they could get in contact with each other.

What I would say is: it is something that, you know, truthfully, would be a systemic investigation. I mean, I have a file of systemic investigations, but it's very thick. I can only do so many. The seniors care one has been the largest we've ever done. It has taken everything I could throw at it, and then I've taken stuff back.

We're trying to work through to improve some of them through perhaps helping them identify who their target groups are and how they can provide better service. It follows on for some of the work we did with income assistance in our systemic report, which is being implemented now.

That is where, when we were looking at the north, there were a number of places where people were being required to come into the office to sign forms, when really, if you could get essentially a trusted third party — sort of an equivalent of a notary public — they could sign them in place instead of hitchhiking 50 kilometres to turn up to sign the form.

[1655]

Those are the kinds of things that we would like to focus on as well.

R. Howard (Chair): Thanks, Kim. We're going to run out of time here. I've got a couple, and then I'll go back to MLA Thornthwaite, who has another.

Kim, I just wonder if you could comment on the fact that last year's report didn't predict increases. As a matter of fact, I think the committee made a recommendation that your submission projected a slight downward trend in the outgoing years.
[ Page 1800 ]

K. Carter: What I would say is that that was in the budget side. I'm not sure it was in the numbers side. With the budget, the slight downward trend was essentially the position of the manager-of-investigations assistant, which was asked for last year but not for these following years.

If everything had worked well and the file-awaiting-assignment list somehow got dealt with, we wouldn't have needed that position on an ongoing basis. I think you'll find it's about $50,000 or $60,000 less than the two outgoing years. So that was on the budget side. I think that was the projection that the committee was talking about.

R. Howard (Chair): I see. Okay.

Could you just briefly, if possible, walk us through…? I think on page 69 you've got the total intakes, and you do have a bit of a chart that triages…. I'm trying to get a sense for how you triage and what's left on the….

K. Carter: Files awaiting assignment?

R. Howard (Chair): Yeah.

K. Carter: I'm happy to do that. We triage with health and safety, and I actually have some examples of files. If you will give me a second, I did anticipate that might be something of interest. I do have something here.

What we try and do is do it on a…. The first level is a health and safety issue. Everything is looked at for urgency. This was one that we had where it was a 64-year-old man living in the Interior who received CPP and a top-up and needed a crisis grant so he could purchase oil to heat his house.

R. Howard (Chair): Okay. No, I think I'm….

K. Carter: So that was a priority one.

Someone who would have to wait because we couldn't get on it immediately would be a grandmother who called because she says her six-year-old grandson, who is diagnosed with a neurological disorder, has been denied classroom assistance. I mean, that is important. It is urgent. Truthfully, two or three months in a situation like that is a very long time, but when you have to make a choice between the two, the chap who says he's using candles and his electric oven to stay warm has to come first.

R. Howard (Chair): Sure. So you've got health and safety as your first level?

K. Carter: Health and safety is our first level. The second level is essentially urgency. Sometimes, if something isn't resolved by a certain date, there's not going to be a simple solution. There may be a more complicated and complex solution, or there may be a lot of apologies. So that's the second level.

I think, probably, if there is a third level, it's where we feel we could really achieve something quickly. Those are essentially the evaluations that have to be done. For example, the chap who it took 30 years to get his solution. You could argue that he's not urgent, and he wouldn't have been treated as urgent by us, but the longer it waits, the longer you prolong the problem.

R. Howard (Chair): I'll have to move on. I've got two questions and probably two minutes left.

D. Hayer: I'm looking at your page 6. When you look at the year 2011-12 and 2012-13, the increase in the budget is approximately 11.11 percent — the budget of the year 2011.

K. Carter: On page 6 of the budget submission?

D. Hayer: Yes. It shows about 11.11 percent increase. For the years after that, in 2013 and 2014, it shows about a 3 percent and then about another 2 percent increase.

So do you think there's some chance that all of a sudden it will come back to '13 and '14 and the increase might be again around 10 or 11 percent? Or it might be less?

[1700]

K. Carter: What I would say is, with the outgoing years…. What I have identified there is, in essence, two things. One is that if we get the capacity to do some more systemic and preventative ombudsmanship, then we will need some additional assistance in communicating that effectively. Much of the benefit of the work we do for institutions and for authorities is by telling people about how something has gone wrong or has been improved somewhere else, so they can learn from it without actually going through the experience. That was the increase for 2013-14.

For '14-15 it was looking ahead and saying that if we do have an increase in intake, that might be a time, after five years, to re-evaluate our early resolution program and see if we can expand that as an effective way. So I would say that those I don't see, unless there is, of course, a massive change in intake, in which case we'd have to respond to that.

What I would say is, I think, if the deputy ombudsperson position isn't addressed this year, then you will see it coming up. I raised it in passing last year. I'm raising it very seriously this year and saying that it's a gap. It's a gap that can help keep complaints down by solving the problems before they get out there. I think it has more of an issue, which is not just reducing complaints but actually reducing things going wrong. But in terms of the impact on us, it's reducing complaints.

R. Howard (Chair): MLA Hayer, really briefly.
[ Page 1801 ]

D. Hayer: Yes, just a short question. To what percentage of people who call you do you have to say, "I'm sorry. I have no jurisdiction" — that you tell them no right away versus actually solving some issues or finding something?

K. Carter: In fact, we have that. It's usually — and I'll find you the page: "Requests for information and assistance — non-jurisdictional." Of the 7,500, probably about 1,700 are non-jurisdictional. What we do, however, is not just…. Whenever we can, we don't just send them away. For example, if it's a private matter, there may be a provincial body we can refer them to, and if it's a federal matter, there may be a federal body. So we will take those steps.

R. Howard (Chair): MLA Thornthwaite, if it's brief, you can read it into the record, and we'll either get a quick answer or Kim can respond by e-mail later.

J. Thornthwaite: Just a quick question. How many of your cases have gone through MLA offices first?

K. Carter: The answer is that we don't keep a record of that, but a large number of MLAs refer people to us. You will see that there are at least two cases that are put in our annual report where I've referenced where the MLA's office has played a role. That's on page 19 and page 54. Essentially, MLA offices tend to try and resolve things that come to them themselves. Then if they're not able to, they'll often refer people to us.

Some things, however, are not ones that are easily resolved by the MLA. The example of the WorkSafe B.C. is one where we had resolved a number of individual cases, but it was because we received the complaints from different places, and it was a cumulative effect that brought to our attention the deficiency in the legislation and the problem that needed to be resolved. We use those kinds of cases to be the foundation for our systemic investigations.

R. Howard (Chair): Okay. We'll thank you for that. Thank you, Kim. Thank you, Shelley. Appreciate you taking the time.

Committee members, just being distributed now are the answers to the questions from Dr. Archer from Elections B.C. Those will be distributed for our use.

We'll take a really brief recess while we get set up for the next presentation.

The committee recessed from 5:05 p.m. to 5:08 p.m.

[R. Howard in the chair.]

R. Howard (Chair): We have with us now the Police Complaint Commissioner, Stan Lowe. Joining Stan we have Rollie Woods, deputy commissioner; Cynthia Dyck, the director of planning and information management; and once again, Shelley Forrester, executive director, shared corporate services.

Welcome, Stan. As you know, we've got…. We'll try and get an hour set aside for you. I'll keep a list of questioners as we move forward. We'll let you make your presentation, and then hopefully there's some time at the end for some questions.

Over to you.

Office of the
Police Complaint Commissioner

S. Lowe: Hon. Chair, Deputy Chair, hon. members of the committee. This will be my fourth occasion that I've had the opportunity to provide submissions to this committee, but for several members, this will be my first opportunity to address you. I welcome this opportunity, and I thank you in advance for your time and consideration.

I intend to focus my submissions on my formal written budget submissions, but given the lateness of the hour, in some areas I intend to summarize what's being said and to also expand on a number of areas. I'll be beginning with the overview.

I will preface my submissions by advising the committee that for the current year I will be respectfully requesting additional funding in the amount of $17,000 for shared building occupancy costs, and an increase in either our dedicated funding of $225,000 or advance approval of access to the contingency fund for that amount. This amount is required to offset adjudicative and legal costs associated with our increased responsibilities arising out of the amended Police Act.

As far as our role, I can advise that our role is primarily that of gatekeeping. We determine the admissibility of complaints made against municipal officers in British Columbia, and we are also gatekeepers to adjudicative review for decisions made by discipline authorities.

[1710]

The oversight of complaints involving municipal police has undergone a tremendous transition over the past 18 months. In 2007 we'll all recall that Josiah Wood, QC, and now hon. judge of the Provincial Court, released his report on the review of the police complaint process in British Columbia. This was the catalyst for Bill 7 to be passed on October 27, 2009, which brought about many amendments to the Police Act.

This act was brought into force on March 31, 2010. However, the implementation process by the OPCC began almost three years ago. This legislation significantly enhanced the oversight powers of this office and fundamentally changed the police complaint process in this province.

Now, in terms of our oversight responsibilities, the amendments to the act include, one, the determination of admissible complaints. Previously, under the previous legislation, that determination was originally undertaken by police agencies. However, our office now has the duties
[ Page 1802 ]
of determining initially whether a complaint is admissible under the act through a number of criteria described in the act.

Two, we also review all non-registered complaints. Now, this is a new area of oversight required by the act. We now review those matters in which complainants wish to avoid the formal complaint process to determine if there are any matters contained in those non-registered complaints which require investigation.

The third area is that we review all reportable injuries. Under the act, a reportable injury is an injury that requires emergency medical treatment by either a doctor or a nurse practitioner and requires the transfer to a hospital and that the injury sustained was police-related. Since the introduction of the act 18 months ago we have reviewed over 270 reportable injuries.

The other area is contemporaneous oversight of investigations and our ability to direct investigative steps. This is a fundamental change to police oversight in British Columbia. Contemporaneous oversight is the oversight of investigations as they occur, or as they transpire, in this province by police investigators.

We are also enabled under the act to direct investigations if there are investigative steps that have been missed. I'm pleased to advise you that investigators have been open to a cooperative and consultative relationship with their analysts to ensure that we're all striving for thorough and professional investigations.

Finally, and perhaps most notably, our reviewing power has been increased in terms of adjudicative avenues by two additional avenues of intermediate adjudicative review in addition to the traditional public hearing. These intermediate avenues were viewed as being more economic and more efficient but have substantially increased our costs in terms of legal costs and legal expenses associated with these avenues.

This increase in oversight responsibilities has resulted in a commensurate demand on resources in terms of staffing and a substantial increase in costs associated with these reviews.

In the concluding paragraph of his report Josiah Wood made the following comments:

"Acceptance of civilian oversight by the police is not something that can be legislated. But what can be legislated is an entirely different model for processing complaints against the police — one that removes the process in its entirety from their control, placing the responsibility for investigation in the hands of a completely independent investigative force and the responsibility for adjudicating the results of those investigations and imposing discipline in the hands of an independent civilian agency.

"While there is a strong argument to be made that processing of complaints against…police is an essential element of the entire discipline structure which is so essential to the day-to-day operation of an effective police service and that as such a complaint process should therefore remain the responsibility of police management, that argument can prevail only so long as there exists a demonstrated willingness on the part of such management and all who serve below to fully accept the authority of civilian oversight.

[1715]

"With that in mind and if the recommendations contained in this report are implemented, I recommend that a further audit of a random sample of closed complaints…similar to that which was conducted as part of this review, be undertaken three years following the date of such implementation, with a view to determining whether the part 9 complaint process and civilian oversight model should be retained in this province."

If I may expand on the comments of Josiah Wood. I can advise the committee that acceptance of civilian oversight has improved steadily over time. Our office has worked hard to maintain professional relationships with all stakeholders so that we are in a better position to candidly explore issues related to the complaint process. We have established professional working relationships with the executive management of police agencies, police unions, B.C. Civil Liberties, Pivot Legal Society and other stakeholders.

We have worked hard to improve our outreach to the many support agencies representing a broad spectrum of our society, including First Nations and those organizations in the Downtown Eastside and several agencies providing assistance to ethnic communities and new immigrants. I am confident that the acceptance of oversight by police will continue to improve.

I also understand that our office must continue to improve professionally so as to earn the confidence of the police community that complaints will be treated fairly, impartially and in a principled way. So long as our focus continues to remain evidence-based, we will be able to provide consistent, principled decision-making that all stakeholders can rely on.

In terms of acceptance of oversight by police at the executive management level, the fact that the chiefs of police of municipal agencies and the commanding officer of the RCMP in British Columbia have asked our office to provide interim oversight of death and serious harm cases involving police speaks volumes of increasing police support of civilian oversight. It was important to our office that with this improved acceptance of oversight, we should respond by volunteering our oversight services despite the anticipated drain on resources.

Returning back to the formal submissions. The audit that Josiah Wood was referring to in his passage that I quoted is now legislation and due to be filed with the Legislature at the end of January 2013. I am confident that with the assistance of the committee, the results of the audit will be positive and the need for the creation of a civilian agency, as referred to by Josiah Wood, would not become necessary.

I am pleased to advise the committee that although we still face workload challenges associated with the increase in oversight responsibilities, we have managed to address these pressures with internal efficiencies, changes in business practices regarding staffing and a strong emphasis on alternative dispute resolutions. Our staff is currently working under a reasonable workload and maintaining a high standard of oversight. If all our
[ Page 1803 ]
efforts continue as anticipated, I do not see any requirement for additional funding for the foreseeable future.

We intend to update this committee with respect to the progress of our plan of improving the civilian component of the OPCC to improve public confidence in this process. At this time our office is staffed by 70 percent of staff in decision-making roles who have civilian backgrounds.

I am not here today to ask for any further financing or any further funds for staffing. However, we are here once again requesting additional dedicated funding for costs associated with adjudicative reviews based on a demonstrated need since the implementation of the new act and the expenses associated with the growing pains, which often accompany the introduction of new legislation. I intend to expand on this request later in my submissions.

Under the heading "Summary of workload," since the new act came into force April 1, 2010, we've seen an approximate 200 percent increase in the number of files opened and requiring review. Now, it is projected that this number will sustain itself through the next three years. I'm careful to qualify that we only have 18 months under this new act, so it's very difficult to make any reliable projections.

[1720]

However, given the fact that we are now overseeing and reviewing non-registered complaints as well as reportable injuries in the rates that those complaints are appearing, I believe that this is the best estimate that we have. However, I should indicate that the funding assistance that was provided by this committee for the past two years, I think, has struck the appropriate balance between workload, quality oversight and the development of our skill sets. We continue to do random audits in terms of admissibility determinations and contemporaneous oversight to try to improve the quality of our oversight.

In order to ensure that our office meets the increased demands of oversight and caseload, we've reorganized the work flow internal business practices of our office. In addition to the challenges of contemporaneous oversight and complaint investigations, we have also undertaken a strong front-end commitment to the complaint process envisioned by the act.

A team of analysts has been assigned to determine the admissibility of complaints and identify those admissible complaints suitable for alternative dispute resolution. This gatekeeping function is crucial to ensure the proper management of public and police resources.

We project that with enhanced admissibility screening, combined with an emphasis on alternative dispute resolution of suitable complaints, the trend will reflect a decrease in the volume of complaints that require formal investigation. This decrease in the volume of investigations will itself free up police resources in departments to allocate those resources to the more serious complaints that merit a full, comprehensive investigation and oversight.

In 2010-2011, out of the 1,138 files that were opened, 643 were registered complaints received from the public. Of those 643 complaints, only 335 were deemed admissible and forwarded to the originating municipal department — approximately just over half.

As demonstrated in the graph on page 3, you will note that it took a few months, under the new act, for our office to strike the right admissibility balance. Since November and December of 2010 and the restructuring of our office to create a team of analysts conducting admissibility reviews based on a standardized criteria, we have found that approximately 52 percent of registered complaints received are deemed admissible and forwarded to police. There is no reason to believe that this rate of admissibility will change significantly over the next several fiscal years.

Now, when we compare this statistic to our counterparts with the OIPRD in Ontario — an oversight agency that oversees approximately 30,000 police officers — their admissibility rate is approximately 49 percent. So we are in the ballpark at 52 percent.

The other area I wish to canvass with the committee is alternative dispute resolution. Our experience has shown that there are a large number of complaints that are better suited to alternative dispute resolution than undergoing an extensive investigation and having a third party deliver a decision. By directly participating in the solution to the dispute, the majority of complainants and members come away from the process with a more meaningful and positive level of satisfaction.

Page 4. The following chart shows how informally resolved police misconduct allegations have steadily increased over the past four fiscal years. The estimated figures for fiscal 2011-12 reflect a 38 percent increase since the implementation of the new legislation in April 2010.

When I took over my appointment in the latter part of 2008-09, that year we had 55 informal resolutions. This year we're on target to hit approximately 215. So last year we had 156, I believe. I'm sorry; it's 156 this year.

Our collective goal in our office — and I've made this clear to my staff — is to lead the country in alternative dispute resolution of police complaints. A meaningful resolution of a complaint through alternative dispute resolution promotes lasting change amongst the parties and restores public confidence in policing, one relationship at a time.

[1725]

If you look at the second chart on page 4, this chart displays how allegations of police misconduct were concluded since the implementation of the act. It is somewhat a chart that involves a triage. If we begin with the first line, this deals with the number of concluded allegations between the introduction of the act and one year later — April 1, 2010, and March 31, 2011. The 981 allegations reflect the 52 percent of cases that we made admissible. Of those, 18 percent were resolved or discontinued. Formally resolved were 113; mediated were 26; withdrawn were 104.
[ Page 1804 ]

The next two lines deal with those matters that actually made it to an investigation and a decision by a discipline authority. With the 50 percent of complaints that we made admissible, it is further reduced by another 50 percent that are required to be investigated. We believe that in time, with the improvement in alternative dispute resolution, the number of cases that go to investigation will again reduce.

As you would expect, not all cases are suitable for informal resolution and mediation. ADR is designed for the less serious complaints. We now have in place guidelines which assist with the identification of appropriate cases. As I indicated earlier, our goal is to lead the country with respect to the percentage of complaints resolved through ADR. We are on track to exceed the number of complaints resolved last year by approximately 20 percent.

Two years ago I challenged Chief Chu, chief of the Vancouver police department, to have his police department or policing agency lead the country in terms of ADR. I can advise this committee that it's clear that at the present pace that the Vancouver police department is under, they are on track to make significant strides towards this goal. They have in place a quick response team, which has drastically reduced the caseload of the professional standards section.

When I began my appointment, there were approximately 25 cases per investigator. Chief Chu put in some additional resources but focused hard on informal resolution. Currently there are approximately eight cases per investigator. It's important that the committee knows that the OPCC is tasked with ensuring that those complaints in which ADR is sought are suitable and that the resolution is meaningful and likely to foster lasting change.

I believe it's also important that the committee knows we have partnered with Mediate B.C. to develop an informal resolution–training course for police officers. Most recently, in November, 30 officers had passed through this course and provided rave reviews of the assistance it provided. It's our goal to roll this session out two more times before this summer.

I've spent the last six months meeting with chiefs and emphasizing the role of ADR. I'm optimistic that we can raise the number of admissible complaints resolved by ADR to at least 30 percent, as the majority of complaints are less serious in nature.

On page 5 of my formal submissions I wish to deal with the memorandums of understanding in relation to death and serious harm cases. On November 9, 2011, the OPCC entered into a memorandum of understanding with the RCMP similar to an agreement already in place with municipal forces. The MOU provides that the OPCC will conduct reviews of investigations involving police incidents resulting in death or serious harm where the investigative agency has not recommended charges to the criminal justice branch.

This interim MOU was intended to bridge a gap with respect to the oversight of these cases until the independent investigations office is operational. Although these additional oversight reviews will result in an increase in demand on our resources, I am pleased to advise the committee that I will not be seeking additional funding.

Having stated that, it's important to state that I'm of the view that in less serious cases of alleged misconduct, police can investigate police and conduct thorough and professional investigations. I am confident that the legislative audit will confirm my view in January of 2013.

But I think everyone in this room understands this, and there is a general consensus that in terms of cases involving death and serious harm, public confidence in the process of the investigation of these types of cases requires an independent civilian agency. I applaud the government in putting in place legislation to create the IIO.

[1730]

Another area that I alluded to in my overview was the civilianization of the OPCC. Several commissions of inquiry and review involving police incidents and oversight have echoed a common theme: the importance of civilian participation and oversight in the investigation of police-involved incidents.

The OPCC has been committed to promoting and maintaining a strong civilian presence in this important oversight role. Our strategy includes the provision of an interesting and rewarding work environment to attract the best candidates who are committed to long careers in public service.

Over the past 18 months our office has completed a series of job competitions in which we have hired a number of entry-level investigative analysts with civilian backgrounds. They have all embarked on a long-term, intensive in-house training program which will allow them to advance in our organization based solely on merit.

As I indicated earlier, currently we are 70 percent staffed by civilians. However, we are still working hard to determine what proper balance is required between civilianization and developing the skill sets and productivity necessary to conduct a higher level of oversight.

Currently there are seven entry-level analysts, who are motivated and highly intelligent, in our program. We have a time horizon of four to five years before they'll be able to conduct skilled oversight of moderately complex investigations.

Finally, I'll get to the area of our budget expenditure on adjudications and legal expenses.

When the OPCC was first created in 1998, the unpredictability of legal costs for public hearings and the operations of the office was raised on several occasions. The initial practice was to seek resources from the committee on a year-to-year basis.
[ Page 1805 ]

In the fall of 2004, with mounting expenses associated with public hearings and legal costs, the committee approved $100,000 in what they referred to as dedicated funding for public hearing and legal expenses. "Dedicated" meant that if the money was not spent in the current budget year, it would revert back to the treasury and could not be used by our office for other expenses.

The door remained open for our office to return to the committee to request more moneys if the dedicated funding was not sufficient. This funding amount has remained constant for the past seven years, despite increases in legal fees and expenses over the year and, most importantly, despite the changes to the Police Act, which increase the number of adjudicated reviews from one to three.

Furthermore, there have been a significant number of judicial reviews initiated outside of our control which pertain to the interpretation of the act and which have elevated our legal expenses over the course of the past year.

At page 6 of my budget submissions. Josiah Wood examined this issue in his report and recommended to government that increased funding was necessary to support his recommendation for additional adjudicative support in terms of police complaints. At paragraph 314 of his report he states:

"However, I do agree with and support the underlying rationale for the proposal in section 39(17) of the Police Complaint Commissioner's draft Police Complaint Act, to the effect that the cost of a public hearing incurred by his office be paid out of the consolidated revenue fund.

"To be effective, the process of civilian oversight must be properly funded. A number of the recommendations I have made, if implemented, will add to the number of public hearings. It is impossible to provide for the contingency of such hearings when preparing an annual budget, and there is no way of knowing how many such hearings may be ordered in the course of the forthcoming fiscal year.

"I agree with the Police Complaint Commissioner when he asserts that his discretion to order a public hearing — or a public review, if that recommended form of public hearing is implemented — should never be fettered or compromised by a lack of funds. However, neither would I propose to interfere with the Minister of Finance's discretion with respect to the consolidated revenue fund.

"Thus, I would recommend that funding for public reviews and public hearings not form part of the annual budget of the Office of the Police Complaint Commissioner but be provided for separately, leaving it to the Legislature to decide how best that funding should be arranged."

[1735]

The comments of Josiah Wood were what amounted to be a reaffirmation of the view of the committee in the early days of this office in terms of the unfettered ability to call public reviews and hearings. However, Mr. Wood recommended access to a fund outside of the operating budget of the OPCC, given the difficulty in predicting these expenses.

In the inaugural report from this committee in June 2003, entitled Statutory Officers: Contingency Funding, the committee at that time made the following comments:

"The committee understands how critical it is to maintain the independence and integrity of the Office of the Police Complaint Commissioner and, in particular, the commissioner's autonomy to call and conduct a public hearing unfettered by budgetary concerns. We recognize that this is an unforeseen expense incurred to fulfil a statutory duty and are receptive to hearing from the Police Complaint Commissioner, should the need arise."

As mentioned in its 2004 report this committee created the $100,000 of dedicated funding.

Returning to my submission. Two years ago, in anticipation of the amendments coming into law, we requested from the committee at the time an increase of $400,000 in dedicated funding, to be returned if not required, to address the anticipated increase in adjudicative reviews and legal expenses associated with the introduction of the Police Act that year. The committee adopted a wait-and-see approach and left funding at the current level of $100,000.

In our submissions to the committee last year we again made a request for an increase in dedicated funding to offset what we predicted would be a $220,000 shortfall in funding for adjudicative and judicial reviews and legal expenses associated with those reviews. The committee did not accede to our request.

However, we were able to offset internally a $251,000 shortfall in adjudicative and legal expenses by $217,000. This was achieved primarily by delaying hiring new staff and diverting funds from our operating budget that had been approved by the committee. Through prudent fiscal management, we were able to complete the year within 1 percent of our budget, and we were successful at accessing $34,000 from the contingency fund to balance our budget.

Once again we are here before the committee, requesting an increase in dedicated funding of $220,000 to offset a projected shortfall in adjudicative and legal expenses in the amount of $308,000 in the current year. The hiring lag, which significantly offset the shortfall last year, no longer exists. However, we have been able to divert $83,000 so far from other areas of our operating budget in the current year to reduce the projected shortfall to $225,000.

As with any new legislation, judicial reviews are expected to be a part of the normal growing pains. The OPCC has no control over the number of judicial reviews that are launched, nor do we have a choice of responding. In fiscal 2010-11 there were eight petitions filed, two of which remained outstanding, and in fiscal 2011-12 there have been four petitions filed. Two have subsequently been joined together, and two remain open.

What I am requesting that the committee consider today is implementing a different mechanism for my request for funding in the current year and in subsequent years. I'm respectfully requesting advance approval for access to the contingency funds for costs associated with the adjudicative reviews and legal expenses associated with the act. This funding is crucial to support the independent nature of our office to ensure that our discretion is not fettered by a lack of funds.
[ Page 1806 ]

It is important that the committee know that the contracts we have procured for legal advice have also been prudent. We have been fortunate enough to be able to obtain senior legal counsel, many of whom are special prosecutors who have agreed to provide legal services to the OPCC at the same rate for special prosecutors offered by the Ministry of Attorney General.

The adjudication and legal costs incurred by the OPCC over the past two years demonstrate that the $100,000 in dedicated funding allocated in 2004 can not meet the fiscal demands associated with the introduction of changes to the Police Act. A consistent concern expressed by this office over the years has been the unpredictability of legal expenses from year to year. In order to provide oversight which engenders the confidence of the public, we need to be funded in a way which does not fetter our ability to seek adjudicative review when we determine it is warranted.

[1740]

The folding charts on page 7 summarize the current forecast for adjudications, hearings and legal expenses. Last year, as you'll see, was $100,000 in dedicated funding. Our actual expenditures were $351,000. The shortfall was $251,000. We were able to offset $217,000, and then we received approval from the contingency funds of $34,000 to balance our budget.

Our current year forecast, as best as we can predict, shows $182,000 spent to date and $226,000 committed, for a total of $408,000. The shortfall estimated is $308,000. The amount reserved for offset from the operating budget has been $83,000. We are seeking, this year, access either to the contingency fund or dedicated funding in the amount of $225,000 to offset the costs that have occurred in this current budget year.

R. Howard (Chair): Stan, I'll just note that you've got about 20 minutes left. We do have some questions.

S. Lowe: Yes. I anticipate I'll be another ten minutes.

R. Howard (Chair): It's up to you. We have read your presentation.

S. Lowe: What I will do is finish off the budget requests section, then make a brief comment and then open it up at that point.

R. Howard (Chair): Okay.

S. Lowe: Thank you, Mr. Howard. I'll try to be brief.

At the top of page 8, I notice there is a mistake in our funding request. At the top of page 8 it says: "We are respectfully requesting an additional…." It should read "$225,000 in dedicated funding and an increase up to $300,000" — not $320,000 — "in dedicated funding" or advanced approval for access to the contingency funds.

Now, this is based on our most recent estimations, based on what we receive up to legal costs to date. Unfortunately, those figures that we asked for earlier were dated.

You know, our fiscal priorities…. I should take you to our budget request as set out on page 10 and make that same necessary correction. Under the area of "Adjudicative and legal," it should read…. Instead of $200,000, it's a request for $225,000 in the current year and, as you'll see in the next two fiscal years, the appropriate number of $300,000 as well as $17,000 for building occupancy costs.

R. Howard (Chair): Sorry, Stan. Could I just confirm that in the out-years the $300,000 is correct?

S. Lowe: Yes, as a total, either as dedicated funding, which would…. Our ask is an increase by $200,000 either in dedicated funding or advanced approval to the contingency fund for that amount.

I just want to take you to page 12, because that's probably the last point I wish to leave the committee with. If you look at that pie chart, you will see that 84 percent of our budget is fixed costs. There's not a lot of discretion that's associated with that. The majority of our costs are salaries and benefits.

I note the time and your concern, Mr. Howard, so those will be my submissions at this time. I'm more than happy to answer questions.

R. Howard (Chair): Okay. Thank you. Just before we go to questions. I'm sorry. I need to come back to the actual request, just to make sure we do have it right. I understood you, on the top of page 8, to talk about an additional $225,000.

S. Lowe: For the current budget year, yes, sir.

R. Howard (Chair): That is consistent with the change you just highlighted on page 10, so that's good. An increase of up to $320,000 for future years.

S. Lowe: No. It should be $300,000, which I tried to correct earlier at the top of page 8. It's $300,000. Basically, it was trying to balance and look at, between the two past years, demonstrated need, bearing in mind the emphasis on alternative dispute resolution and trying to find a number that would be manageable for us to be somewhat accurate.

R. Howard (Chair): Okay, thank you. We'll go to the questioners.

[1745]

B. Ralston: I just want to talk about this fund, which you've talked about, to respond to the legal requirement. You cited a passage from Mr. Justice Wood on page
[ Page 1807 ]
6, where he says…. He refers to the Police Complaint Commissioner. That's you. "His discretion to order a public hearing — or a public review, if that recommended form of public hearing is implemented — should never be fettered or compromised by lack of funds." Well, to my mind, that's a trifle unrealistic.

Surely in the exercise of your discretion, there has to be some ability to assess whether it's a worthy expenditure of public money or not. I find it hard to agree with that. I have a great deal of respect for Mr. Justice Wood. He's obviously a very distinguished jurist and judge.

Would it not be more prudent to follow the course that the Information and Privacy Commissioner has set up, where there is a dedicated $300,000, which is there to respond to requests for judicial review of the Privacy Commissioner's decisions? Those are not within his or her control. If the fund is not expended, then the balance is to be returned.

I'm a little reluctant to agree with you that you should have pushed the funding for that part of your budget outside your budget into the formal contingency funding of the provincial government, because I think that might be, one, more uncertain, and secondly, it might cause you to lose independence over your budget.

I think there should be some sense of a financial limit, if I could sum up — and I'd just like to respond to this — but it should be within your budget. If you don't use it, then you would have to return it.

I do note that your situation is a little bit different from that of the Information and Privacy Commissioner, because generally, she has not initiated judicial reviews of her own decisions, obviously, whereas you have the discretion as to whether or not to call hearings.

I appreciate that judicial review of your decisions is not in your control, but your decision to call hearings is in your control. I think the public expects you to do your job and wants you to do your job effectively and understands that this legislation requires funding. I don't think that's any secret. I'm just concerned that the proposal you put forward doesn't give you the kind of independence that you require, and it may lead to more problems than the change is really worth.

S. Lowe: Yes, Mr. Ralston, I agree entirely with your earlier comment. There needs to be very carefully exercised discretion. I think that Josiah Wood's comments should infer what you've recommended. In exercising our discretion as gatekeepers to these adjudicative avenues, I can assure this committee that we have been careful. In fact, we've been somewhat frugal.

What has caused me concern is our difficulties last year and our need to go to the contingency fund for $34,000. There was a palpable chilling effect in our office with respect to these adjudicative avenues in a way, because we were always mindful of the pressures that were associated with that period of time. I was concerned that this chilling effect would force us to compromise our ability or our judgment in being too frugal in allowing access to these adjudicative avenues.

I can tell you this. Since the new act has come in, we have only ordered one public hearing, and that was only because the act made it mandatory. The officer in question received a level of discipline that automatically entitled the officer to a public hearing.

Outside of that there has not been a public hearing that has been called with the new act. In fact, in the last 18 months we've resorted to those intermediate avenues only seven times, to what's called a review by a retired judge, and so far twice to a review on the record, which I can attest are more economical and efficient.

Secondly, with respect to the reference to Josiah Wood's report. At that time, in his report his recommendation was for two avenues. One was a public review, and one was a public hearing. The act itself…. They took what he had and built in another review, called the review of a retired judge.

[1750]

There are actually three avenues of review: (1) of an initial decision of a discipline authority on whether there appears to be misconduct; (2) following where there is a discipline proceeding, there is a review of a record, which is like an appellate review; and (3) what remains intact is the public hearing.

The direction of our office is to try to move matters to the more efficient and economic avenues of judicial review. As far as dedicated funding, I'm with you either way. I understand what you were saying, and if it remained in our budget as dedicated funding, I'm just as happy with that.

B. Bennett: Just following up on the last member's question. In my career as an MLA I actually haven't had any interaction with your commission. When other members on the government side have been involved in hiring committees and so forth, I never have. So I hope this isn't too ignorant a question.

Are you asking for either the recommendation on page 6 or the dedicated funding?

S. Lowe: Either.

B. Bennett: And you don't have a preference?

S. Lowe: No.

B. Bennett: It's for both hearings that you might call yourself and also judicial reviews of your decisions?

S. Lowe: Yes. They're judicial reviews, which are obviously beyond our control, that have been done with respect to the interpretation of the act that we've taken. I can tell you, Mr. Bennett, that on two of those judicial reviews
[ Page 1808 ]
that have happened so far, the decisions have sided in favour of our office — as well as the three avenues of adjudicated review provided for under the act.

B. Bennett: Okay. It just seems to me that you would have a far easier time estimating your costs of your own hearings that you're going to call. You should be able to base that on experience and estimate how many you might have and what the cost of them would be, as opposed to the judicial reviews, although I guess you could do a statistical analysis of it. But you're lumping the two together.

S. Lowe: Yes. It's difficult to predict the costs associated with each one of the adjudicated avenues, but I can tell you that the public hearings are by far the most expensive. The judicial reviews very much depend on the issue and how many days it takes for the hearing to take place.

One aspect that we lack control over is how long these particular types of adjudicative matters take, and time is money in the adjudicative scenario as far as legal costs.

B. Bennett: Do you use in-house counsel for most things?

S. Lowe: No. The reason why we haven't done that is that in the past there was a movement to in-house counsel, but then the problem is it's hard to be an expert practitioner in all areas. So what we tend to use, fortuitously, is the special prosecutors at a significantly reduced rate that we've negotiated, compared to, I'm sure, what many of my other commissioners are currently paying. So I'm pleased with the work they're doing, and the public is getting good value for their money.

D. Donaldson (Deputy Chair): I'll just be very quick. I would echo the comments of MLA Ralston about keeping the amount, once it's decided upon, in your operating budget, around the public hearings and judicial review budget line items. But as you said, it doesn't make much difference to you either way. I just think that keeping it out of the Legislature and more in the hands of the operating budget through this committee, an independent office of the Legislature, would be the way to go.

My question is on the contingency funding. You're requesting $225,000 for this year. It seems to me that we're in a similar situation to what we faced last year. You've spent, to date, $182,000. Budgeted for was $100,000. You've used offset from the operating budget of $83,000 to pretty well cover that.

[1755]

You've committed $226,000 remaining. I just need a little bit more information on that, because you've only got four months remaining in this current fiscal year. As well, were you able to forecast this a little earlier? I don't recall seeing any kind of communication come to the committee on the fact that you're looking at an equivalent overrun on the budget to last year when we considered this question.

S. Lowe: That's a fair question. One of the problems we had, a dilemma that we wrestled with, was that the committee wasn't reconstituted until September. The question was: where shall we provide the information on our adjudicative costs as they accrued starting April 1, 2011?

When it came to September, given where we were at, we felt that giving it at that point of time without asking for a special sitting…. The difference of two months would not have really made a difference.

I use the term "demonstrated need" because that's all we've had since the introduction of this act in the last 18 months — two years of expenses, adjudicative and legal expenses, associated. These are our best estimates. But to give you an example of how precarious it is, we could have a public hearing scheduled for January, and it may, as we've had a recent one, now get adjourned until April, which would substantially reduce the ask for the current budget year. That may be because of availability of counsel or some other matter that has adjourned things.

D. Donaldson (Deputy Chair): Stanley Cup riots.

S. Lowe: Yeah. So every one of these adjudicative reviews is dependent on the availability of counsel and what may arise from time to time. We've managed…. To break it down for you, we've been fortunate that some of the public hearings have spaced themselves out over the years, but this has been a difficult year in terms of public hearing costs, because when we look at our adjudicative avenues of review, the public hearing costs to date have been $158,000.

Now, if you look at the intermediate avenues of review, the review on the record has only been $11,000, the 117s have been $8,000, and the course of those judicial reviews has been $28,000, to come to a total cost for the first six months of this year of $205,000. That's the precarious nature of these legal expenses. We're almost hoping against hope that things will be adjourned so that they're spaced out more evenly and fall into another fiscal year. It provides a tremendous amount of stress on staff.

D. Hayer: Thank you very much for providing a very good, detailed report there. My question is regarding your 2010 annual report. I'm looking at the page where it says: "Files opened by department." You have a chart there, close to the end. The index number may be 3 or something.

S. Lowe: Yes. I'm sorry. That's one of the reports I don't have. But I'm very familiar with the chart so, Mr. Hayer, if you could just continue, I might be able to help you.
[ Page 1809 ]

D. Hayer: You have listed different cities and departments there. When I look at Vancouver, it says: "Files opened by department," and from 2009 to 2010 they went from 240 to 493 — right? So that's almost double. Then you look at Victoria: 103 to 156. The other cities have less increase.

Why is there so much change in certain cities versus other ones? A huge change, not just a small percentage — it's like doubling, or 50 percent. And other ones are only a 5 or 10 percent increase or 20 percent increase.

S. Lowe: When we look at opened files, it also includes now, for the first time, the reportable injuries as well as the non-reportable complaints that came in. Vancouver, which traditionally has approximately 52 percent of the policing population, tends to have the largest increases.

They are also very good at their records. So we find that when they submit to us their non-registered complaints as well as their reportable injuries, they're fairly accurate. We still are working with some of the other agencies for compliance. Where you may see…. For example, when you speak of Victoria, there is an increase, I think, in that amount of what appears to be about….

D. Hayer: Fifty percent, almost.

S. Lowe: Yes. Part of that can be explained by the increase in oversight, because what we do is we look at files that we open.

[1800]

Every reportable injury, every non-registered complaint — a file is opened. It's reviewed. Then, if there are no issues from our office, we close the file. Some of the reportable injury files take some time to determine what has occurred.They're slow in the informational train. But as I say, the best statistic is over the past about 270 files, since the introduction of the act, involving instances where an individual, because of a police-related incident, has had to go to hospital and seek emergency care. So those matters take a while for us to follow up with the police department to find out and to look at the injuries and the circumstances.

I will tell you this. When you look at our admissibility by month, and this may explain something…. I think the committee provided some sage advice last year. If I may take you to page 3 of my submissions, one thing that was raised, I believe, last year by a couple of members of the committee, and that we took to heart, was when you look at the admissible complaints forwarded to police, these are the ones that may be investigated.

If you look at the first quarter and second quarter, they were very high. It was up around 60 percent to 65 percent that were made admissible. I took over in mid-September of that first year, and I did every admissibility to determine some really strong criteria. So I did it for five weeks. Once I completed that…. I think during that five-week period they had plummeted to 37 percent. It went from 65 to 37 percent. So it's taken us a year with these criteria to modulate. Now we're at about 52 percent, which we're comfortable with, because that's in line with other agencies that do oversight.

B. Routley: Just to echo the comments, the dedicated funding — I think it makes sense to keep an eye on that through this committee.

The background material that you have on pages 4 and 5 — I've got a couple of questions. One is under the memorandums of understanding for death and serious harm. While you're saying you're not seeking any additional funding, there are going to be oversight reviews. Do you have any idea what number of oversight reviews you're talking about there?

S. Lowe: Let me preface by also advising, Mr. Routley, that the CPC, our federal counterparts, have agreed to assist us. But when we last spoke with the commissioner for the province, he indicated that in the past two years there are approximately 36 in the hopper. Now, at the end of the day, it primarily comes to me and a couple of the senior retired officers to look at these types of files for the expertise. That's why I say it's not really a drain on the resources of the other analysts. I may get them in to look at some of the investigative aspects, but most of that work is going to be done by me.

B. Routley: On page 4, in that graph at the bottom of the page, there are two kinds of substantiated allegations. So you've got a chart, and it's got a note in point 2 that isn't really helpful in explaining the difference between 7 or 8 percent substantiated. Then, at the final column, you're anywhere from 11 to 15 percent substantiated.

I'm just wondering what the difference is — if you can explain the difference between two levels of substantiated in the same graph.

S. Lowe: Okay. This is at the bottom of 4?

B. Routley: Yes.

S. Lowe: That's my fault. I perhaps was relying too much on the earlier service plan.

Once a matter has gone through the investigative stage, there's what's called a final investigation report completed by an investigator with the police who works in the professional standards. The discipline authority, which is often the chief, will look at this report and then determine whether it appears to be substantiated or not. That means that the allegation, each discrete allegation, must be investigated.

The last two columns for substantiated and unsubstantiated are fairly simplistic in terms of…. If you look at the first line, with the 981, if you added the 474 and 83
[ Page 1810 ]
together, those were in the province, with respect to all the matters that made it to a discipline authority.

[1805]

That was the number of allegations they had to decide upon — 474 unsubstantiated and 83 substantiated, which, on average, is a 15 percent substantiation rate. The same is with respect to the next dates of the first six months: 282 unsubstantiated, 36 substantiated — meant a determination that they have found misconduct as opposed to not finding misconduct. The rate is 11 percent, but mind you, that's only through a half year.

On average, when you look at the last line for the 18 months under the act, when you look at all the substantiated versus unsubstantiated, the rate is about 14 percent.

I hasten to add the number that has been usually put out by oversight agencies says that normally the substantiation rate is between 8 and 10 percent. This year I asked to drill down on that number, to say: "Where are we getting this number from, and what are the statistics?" It's when we actually look at the actual decisions that a chief has to make. When it comes right down to it, these are the most accurate. They far exceed the usual 8 to 11 percent that many of the provinces are putting out.

I can tell you that my anecdotal experience is that the chiefs have embraced the importance of this act and the importance of taking care of their own departments, are looking hard at these matters and are substantiating allegations at, I think, a reasonable rate to a member of the public.

Often it's cited by some groups in our community that they never find a substantiation. This statistic is to show that 15 percent or 14 percent is a fairly good number when you consider the complaints and the investigations.

R. Howard (Chair): Just a couple of quick ones to close. I think just a comment, first, on the early notice with respect to budget challenges. Even though the committee wasn't constituted, some kind of advance notice, even if it's through Clerks, would probably be helpful just to make sure we're aware. We may have reason then to come together as a committee.

I'm sorry if I missed this, but you accessed last year $34,000 from contingency funds. Is there a contingency fund balance?

S. Lowe: A thousand dollars went back. It was up to $35,000 that was the allowable…. I don't know if I understood your question right.

R. Howard (Chair): Is there a current balance in the contingency fund?

S. Lowe: No. We haven't accessed this year. It was on a one-time-only basis at the end of the budget year.

R. Howard (Chair): Right. What I'm asking is: is there a balance in the contingency fund? Is there such as thing as a contingency fund with money in it today?

S. Lowe: Well, the fund that I was contemplating using is the broader, larger government fund that deals with fires in forest fire season — that fund.

R. Howard (Chair): Got you. Okay, I understand.

Last question. You were of the view that reliance on the adjudicative review process will diminish as time progresses, given the guidance that it will offer. What sort of time did you have in the back of your mind when you wrote that?

S. Lowe: I think in three years, if we average seven a year or so and we have 21 decisions. That's pretty robust, because the decisions that are going to adjudicators are important decisions that are intended to give guidance on where we disagree — or where we believe, depending on the test under the act, it would be of assistance to the police complaint process.

I'm hoping that in three years we'll see a reduction.

R. Howard (Chair): Excellent. We're out of questions. We thank you and your staff for coming forward.

Can I have a motion to adjourn? So moved by MLA Hayer.

The committee adjourned at 6:09 p.m.

[ Return to: Finance and Government Services Committee Home Page ]

Hansard Services publishes transcripts both in print and on the Internet.
Chamber debates are broadcast on television and webcast on the Internet.
Question Period podcasts are available on the Internet.

Copyright © 2011: British Columbia Hansard Services, Victoria, British Columbia, Canada