Finance and Government Services — Issue No. 65 — Wednesday, July 15, 2015 (HTML)

Present: Wm. Scott Hamilton, MLA (Chair); Carole James, MLA (Deputy Chair); Dan Ashton, MLA; Eric Foster, MLA; Simon Gibson, MLA; George Heyman, MLA; Gary Holman, MLA; Mike Morris, MLA; Jane Jae Kyung Shin, MLA; John Yap, MLA

2. The following witnesses appeared before the Committee and answered questions on correspondence dated July 3, 2015 from the Honourable Terry Lake, MLA, Minister of Health.

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


CONTENTS
Page
Correspondence from Minister of Health	1447
R. Fyfe
N. Reimer
J. Chalke
J. Tuck

S. Hamilton (Chair): Good morning, everyone. Welcome. This morning we are here to continue our deliberations specifically with regard to a motion that was tabled last week with respect to the invitation that was extended to both Mr. Fyfe and Mr. Chalke to appear before this committee to address some of the issues that were brought up by committee members as well as to address many of the issues that Mr. Chalke had expressed in a letter to this committee last week.

Without further delay, I will, first of all, go to Mr. Richard Fyfe, the Deputy Attorney General.

I would like to introduce…. With me this morning, I have John Tuck and Neil Reimer. I’d just like to start by talking a little bit about the purpose — or my understanding of the purpose — of coming to the committee today.

I do have a PowerPoint, and I think that members of the committee have received a copy of it as well. I’ll just be working through the PowerPoint. It’s not that long, and then I’m available for any questions that you have.

My understanding of the purpose this morning is to provide information and to provide assistance to the committee on the potential referral that has been requested by Minister Lake. I’m not intending to provide advice respecting the scope of the potential referral. I’m not appearing as an advocate for any particular position, although I will provide comments that I think are relevant to the request by the Minister of Health.

I would be able to discuss similarities and differences between the Ombudsperson’s investigation and a public inquiry. I could discuss any of the legal concerns raised by the letter from the Ombudsperson to the committee, although there were a number of things that were not legal concerns — I won’t be going into a discussion of those, I don’t anticipate — and then address any questions arising from the letter that the Attorney General had written to the committee or from the submission that I provided. I provided a submission on Monday evening for committee members as well, which provides a little more detail in terms of a comparative table between a public inquiry and an Ombudsperson review, as well as some previous cases.

If I can turn, just briefly, to talk about an Ombudsperson referral. A referral by the Legislative Assembly or a committee is rare, and in fact, it’s unprecedented in B.C. But it’s not inappropriate, since the legislation specifically provides for it. I would say that we agree with the Ombudsperson that great care must be taken in designing a referral, which would guide his subsequent investigation, and as the Ombudsperson suggests, we should be aware of what would or would not be part of an Ombudsperson investigation compared to another investigative process, such as a public inquiry.

There is, we think, some potential for ongoing communication between the Ombudsperson and the committee as the investigation progresses.

Turning to the next slide and talking about Ombudsperson investigations a little more specifically, the mandate could be summarized as determining whether public authorities have acted fairly and reasonably and whether actions and decisions were consistent with law, policy and procedures.

The material that I provided — the more detailed material — includes an excerpt from public report no. 13, which related to the abortion clinic issue in 1988, as well as an excerpt from the 2014-15 annual report, both of which have some quotations from the Ombudsperson’s office that relate to the nature and the purpose or the mandate of the Ombudsperson’s office in conducting investigations.

On the question of independence, the Ombudsperson reports only to the Legislative Assembly and is not subject to any directions, except by the assembly or the committee. In terms of scope, while a referral by a committee is rare, the Ombudsperson has investigated a wide range of complaints — as you will see in appendix B of the material that I submitted — and systemic issues and has made findings and recommendations about government policies and decisions.

In terms of effectiveness, the Ombudsperson has significant powers to compel production of documents and evidence from witnesses. In terms of timeliness, the Ombudsperson has existing office and staff, and in terms of reporting, the Ombudsperson would report back to this committee unless the committee was to direct otherwise.

In terms of similarities between an investigation by the Ombudsperson and a public inquiry, both would conduct investigations independently of government. Both have similar powers to compel production of documents and evidence of witnesses under oath and to inspect premises. There are similar protections for witnesses and for those who are subject to possible adverse findings. Neither the Ombudsperson nor a public inquiry can impose a penalty or sanction. Neither can override specific statutory non-disclosure provisions. And both result in public reports, assuming that the committee so directs in the case of the Ombudsperson, although the reporting process is different.
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Turning to a brief discussion of differences between the Ombudsperson and a public inquiry, in terms of terms of reference, for an Ombudsperson, the terms of reference would be set by this committee. For a public inquiry, they’d be set by cabinet, or the Lieutenant-Governor-in-Council.

In terms of hearings, the Ombudsperson gathers evidence in private, whereas a public inquiry would conduct its investigation in public. There are limited exceptions for both processes.

In terms of jurisdiction, the Ombudsperson has no jurisdiction over a matter that is subject to another statutory review process until the other process has concluded. There is no such statutory limitation on a public inquiry, but a commissioner in a public inquiry may choose to delay some portion or some element of the public inquiry in order to avoid prejudice or conflict in terms of outcomes.

The Ombudsperson may not investigate acts or omissions of solicitors acting for an authority, and there is no such express limitation on a public inquiry.

In terms of cost and duration, recent public inquiries have cost in the range of $3½ million to $9.9 million and have taken at least two years to complete. In the case of the Ombudsperson, the Ombudsperson would need to determine the cost and the anticipated duration of any investigation that was undertaken by that office.

Finally, I would just like to turn briefly to some of the issues that were raised by the Ombudsperson in his letter. First is in relation to the disclosure of cabinet records and legal advice. We can confirm that the existing protocol between the Ombudsperson and government respecting access to cabinet documents will be followed, and I believe that was confirmed earlier. The protocol provides for access by the Ombudsperson through a structured process.

There’s an existing memorandum of understanding between the Ombudsperson and government respecting the review of legal advice provided by government. The intention of that is to establish a limited waiver of privilege to the extent that it allows the Ombudsperson access to all of those documents. While we cannot commit to provide access to legal advice that was obtained independently by third parties because government doesn’t control third-party privilege, the same issue would apply in respect of a public inquiry.

Access to information that is subject to statutory non-disclosure provisions was, I believe, a fairly significant issue raised by the Ombudsperson. Subject to the scope of potential referral and further review, at present we have not found the indication there are any statutory provisions that would prevent access.

There was one that we did identify, which was the Pharmaceutical Services Act, section 7, which may be relevant. That statute applies only if the minister chooses to refuse to provide access — in other words, if the minister makes an election to provide. So it isn’t a blanket prohibition on confidentiality. My understanding is that the minister would not be so refusing in relation to an investigation requested by this committee.

Respecting — and this is my last point — confidentiality undertakings and settlement agreements, these are privileged pursuant to settlement privilege under common law. It is possible to obtain limited waivers or exceptions, and certainly, from government’s perspective, government would be prepared to do that. So it would be a matter of whether the third parties were also prepared to do that.

I’ll ask the committee if we have any questions directed towards Mr. Fyfe specific to his presentation. I will open the floor for questions.

I wanted to speak a little bit about a section of the letter that you sent to the committee. On page 5 you talk about independence, effectiveness and transparency and the importance of that, and you speak about the issue of dealing with that related to the Ombudsperson. That has been a question that has been raised around that.

I just want to follow up on that from the Attorney General’s perspective and your role as the Deputy Attorney General as well. Given this case and given the challenges that have brought this referral to all of us here today, I think this is a critical piece for us to address as a committee. I think we’ve all talked…. We talked in our first meeting about making sure that openness and transparency were critical.

You speak in here about the Ombudsperson and how they deal with bias. I wonder if you could speak a little bit about your role and the Attorney General’s role around bias. Given that I expect you’ve been involved in some way, shape or form during this process, how comfortable do you feel bringing forward advice to the committee when you, in fact, probably will be interviewed as part of this investigation?

I think it’s important to make sure that we get that on the public record, given everything that has gone on here.

R. Fyfe: I would start by just saying I’m very comfortable. The ombudsperson process is a process that we deal with regularly. In the material that I provided, there is one case, for example, where the Ombudsperson was quite critical of the Attorney General.

I think that particularly as lawyers, we understand the role. We may be acting for a client one day on one matter with co-counsel, and then the next day we may be adverse to that same counsel. Obviously, we are aware of conflict of interest with respect to clients, but lawyers
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understand the importance of that distinction.

In terms of my role, I would anticipate that to the extent that I was involved at all in the process, I would be a witness. I would be asked to provide evidence or to answer questions of the Ombudsperson, and I’m quite prepared to do that. In fact, I have great confidence in the process that has been established under the Ombudsperson Act.

M. Morris: Given the decision by the Supreme Court of Canada in defining the jurisdiction of the Ombudsperson’s office, do you have any concerns with respect to this issue before us now? Does this fit within the definition that the Supreme Court of Canada rendered?

R. Fyfe: Certainly. The case I think you’re referring to is the B.C. Development Corporation case, which is still, I think, the leading authority in terms of the scope of the mandate of the Ombudsperson.

I certainly have no concerns. We don’t know yet what the terms of reference or the referral is from the committee. Of course, that is where I think great care has to be taken. For example, we have the Privacy Commissioner right now that is looking at some issues related to this matter, so we would need to be cognizant of that. We have ongoing litigation with respect to a number of defamation claims that the committee would need to be cognizant of.

I think the answer is that while the Ombudsperson has tremendous scope in terms of ability to investigate as defined by the statute and as defined by the Supreme Court of Canada, the committee, in developing the terms of referral, should be very conscious of what exactly is being referred and how it’s referring it so that it doesn’t put the Ombudsperson in the position where he’s either in a clash with another ongoing investigation or litigation that’s ongoing. That can be dealt with either by defining the terms of reference carefully or by defining stages to the process.

D. Ashton: Is that a similarity through a public process as opposed to the Ombudsman — what you had just mentioned? Would they run up against that same issue?

R. Fyfe: A commission under a public inquiry would be very conscious of the same issues, I would expect, and would probably…. I would think that in the case of a public inquiry, cabinet would be conscious of those, and the Lieutenant-Governor-in-Council would develop terms of reference similar to what would be developed by this committee to ensure that the different investigations or different processes weren’t stepping on each other’s toes.

J. Shin: Is the government planning to release the comptroller general’s report to the committee?

R. Fyfe: Not to the committee, I don’t think. I think the anticipation was that the Ombudsperson would undoubtedly be requesting that and that it would be a document which would released to the Ombudsperson.

The Minister of Justice outlined in her letter of July 8 that in her view the conduct of lawyers is not an issue in this case. She offered the opinion on behalf of government, which a reasonable person might interpret as meaning that the investigation need not touch on the conduct or advice given by staff. On what basis does government make that assertion?

R. Fyfe: I’m talking about lawyers specifically. You mentioned lawyers and the staff. There’s a statutory prohibition in the Ombudsperson Act with respect to advice provided by lawyers to an authority. That’s what the Attorney General was referring to. Of course, that does not preclude the Ombudsperson from having access to all of the advice and all of the information related to the advice provided. I believe there was a reference in question period yesterday to the Attorney General blocking access to or blocking investigation of lawyers, and that’s not correct. It’s a statutory prohibition.

The material would still be available to the Ombudsperson. Obviously, where it comes to conduct of lawyers, the Law Society of British Columbia has and continues to have jurisdiction over the conduct of lawyers. That would be the appropriate venue for any issues with respect to conduct of lawyers.

C. James (Deputy Chair): There was a question raised by Mr. Chalke, which went to the Attorney General last week and which came back in her letter, that talked about the request of using the standing protocol when the Ombudsperson, if it was referred to him, would be looking at cabinet documents and a preference to use that protocol over the subsections in the act. The Attorney General at that time said yes, that that would be something that government was moving on.

You didn’t refer to it, so I just wondered whether that’s now a given. Is that an acceptance by the Attorney General Ministry that that process will be used?

J. Yap: You mentioned in your presentation that at the hearings, one of the differences is that the Ombudsperson gathers evidence in private, and a public inquiry, in public — with limited exceptions with both. In your letter to us you noted that the private nature of the investigations has been integral to the success of the Ombudsperson.
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I wonder if you could explore that observation for us so that we can better understand why the Office of the Ombudsperson conducts investigations in private as opposed to public.

R. Fyfe: Well, I think that the reference, in terms of the benefits, came from the Ombudsperson’s letter itself.

Just to refer to a few of the points from that letter, which I think make the case fairly clearly, the Ombudsperson’s letter says: “Thus, while an ombudsperson’s file report may be made public, the very nature and strength of ombudsperson investigations is that they are conducted in private.” It goes on to say: “The experienced investigative staff of the office consider the ability to conduct investigations in private as integral to our success.”

This has been recognized in litigation involving this office, and it quotes from Levey v. British Columbia (Ombudsman). In fact, in the case Levey includes a quote from the B.C. Development Corporation case that was referred to earlier, which says:

“Read as a whole, the Ombudsperson Act of British Columbia provides an efficient procedure through which complaints may be investigated, bureaucratic errors and abuses brought to light and corrective action initiated. It represents the paradigm of remedial legislation. It should therefore receive a broad, purposive interpretation consistent with the unique role the Ombudsman is intended to fulfil.”

“This office, like our counterpart offices in other jurisdictions, has enjoyed complete candour from witnesses because of the confidence that they have in the Ombudsperson’s process and also because of the assurance that what they say will be kept private, other than as included in a report.”

The decision as to what goes into the report, of course, is the Ombudsperson’s. I think what we are understanding is that the confidence in the effectiveness of that process comes from the Ombudsperson and the Ombudsperson’s office and their experience.

G. Heyman: In your presentation you note that similarities between the Ombudsperson and a public inquiry are that neither can impose a penalty or sanction. I’m wondering if, in your view, though, the Ombudsperson can find fault, assign blame and, if appropriate, report to the police or the Law Society.

R. Fyfe: The Ombudsperson has the ability to make recommendations. If you look at the cases in appendix A to the material that I provided on Monday, I think that demonstrates pretty clearly that the Ombudsperson has a wide scope in terms of the findings that they can make and the recommendations that they can provide.

G. Heyman: I think you’ve answered this question in the affirmative in your presentation, but I’d just like to be clear about that. Mr. Chalke has asked the committee in his letter to us to seek assurance from the government that they will apply the existing protocol not only to records but also to other circumstances contemplated in section 18 — specifically that the mechanism apply to individuals who may be asked to give statements protected by cabinet confidence.

R. Fyfe: Before coming today, I’ve gone back and confirmed that, yes, government would be prepared to confirm that.

G. Heyman: Finally — for now, although I may have another question in a moment — I’m just curious: in your appearance before the committee today whom do you consider yourself to be a client of? Is it the Attorney General, the government as a whole, this committee?

R. Fyfe: I think that’s a helpful question. The Attorney General has, obviously, two roles. One is a political role as a minister, and the other is as the Attorney General. I consider that I’m appearing today in the capacity of the Attorney General.

G. Holman: A follow-up to my earlier question about the investigation touching on conduct or advice given by staff. You indicated there was a statutory restriction there. It’s not a ministerial….

My question, though, is: for a public inquiry, would that restriction apply? For example, a public inquiry could perhaps be asking you questions that the Ombudsperson could not. What’s the difference between the public inquiry and the Ombudsperson with respect to that specific question?

R. Fyfe: The specific section, section 11, of the Ombudsperson Act provides: “This Act does not authorize the Ombudsperson to investigate a decision, recommendation, act or omission of a person…acting as a solicitor for an authority or acting as counsel to an authority in relation to a proceeding.”

The scope of the restriction in relation to an Ombudsperson investigation is as I’ve read it. That does not preclude the Ombudsperson from asking questions of me or anyone else. It limits what the Ombudsperson can be investigating.

We don’t know yet what the terms of reference are from this committee. We wouldn’t know what the terms of reference were from a commission of inquiry established by the Lieutenant-Governor-in-Council. But, for example, in either case the provision could be that if an issue was discovered that related to one of those issues, a reference to the Law Society would be appropriate.
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G. Holman: My question, as well, was: would a public inquiry be similarly restricted as you’ve just described?

R. Fyfe: A public inquiry would only be similarly restricted if that restriction was established in the terms of reference that were set out by the Lieutenant-Governor-in-Council.

J. Shin: Mr. Fyfe, I think there was an element of concern that some form of timeline might be imposed by the ministry on the Ombudsperson’s office for the investigation. Would you be able to provide some clarity around that?

R. Fyfe: There was a request in the letter from the Minister of Health. That was, I would characterize, only a request. You’ll be hearing from the Ombudsperson later both, I’m sure, in terms of budget issues and timeline issues. I would frame that only as a request at this point. It really is a matter for the Ombudsperson to talk about.

C. James (Deputy Chair): Just a follow-up to a comment that was made in the Attorney General’s letter to the committee. The Attorney General said that the standing committee may wish to obtain its own legal advice with respect to matters raised by the Ombudsperson. I just wondered if you have any more information on that. Is that something that the Attorney General anticipates with the committee? Does the Attorney General have anything more to say around that issue?

R. Fyfe: That was really recognizing the fact that, as the Attorney General, neither the Attorney nor myself is here to provide legal advice to the committee and that while we can comment on the issues from the Attorney General’s perspective, in doing so, we’re not providing legal advice to the committee.

G. Heyman: Mr. Fyfe, you addressed in your reply yesterday and today that nothing in the Ombudsperson Act requires or prohibits the retention of counsel and that witnesses have the right to make representation in the event of adverse findings.

The costs of counsel can be quite prohibitive. ADMs and DMs will be eligible for indemnities. But those who have been most directly impacted and who’ve already spent a considerable amount of money to defend themselves against accusations that the government could not substantiate probably deserve similar treatment. Do you have any suggestions about how this could be done?

R. Fyfe: The only suggestion I’ve got there is that that, of course, would be something that will be up to Mr. Chalke to decide — whether there are other third parties who may be witnesses and should receive similar coverage — and to make recommendations regarding that as part of his development of a budget for this process.

Finally, Mr. Fyfe, you’re a lawyer. You’re here as a lawyer. You’ve told us that you expect to be questioned and are willing to be questioned. You’re commenting on a process, but arguably you’re recommending a process that you’ve said is statutorily prohibited from investigating the conduct of lawyers.

Do you see any conflict in your role appearing before this committee and giving advice on behalf of government and the actual impact of the process that might be chosen on any investigation of yourself?

R. Fyfe: Well, I think the operative word in your question was “arguably.” As I said at the outset, I’m not here advocating a process. I’m here at the committee’s invitation to provide information with respect to both processes. What I’ve endeavoured to do is to provide a balanced view of the two processes and to answer or to provide information regarding the questions that were raised in Mr. Chalke’s letter that relate to legal issues that touch on the Office of the Attorney General.

I fully anticipate that if Mr. Chalke wishes to question me on my role in any way or other lawyers in the Ministry of Justice, they will be doing so. If they’re requested to do so under oath, they’ll do so, and they understand the implications of that.

G. Heyman: I’d just like to follow up on that for a little bit more clarity. You appear to be saying that Mr. Chalke could investigate the conduct of lawyers. But, if I understood you correctly before, the process under the Ombudsperson can’t actually investigate the conduct of lawyers. Perhaps you could clarify what’s either my misunderstanding or elaborate on what might potentially be a significant deficiency in an Ombudsperson process.

R. Fyfe: The fact that Mr. Chalke as the Ombudsperson is statutorily prohibited from investigating the matters that are identified in his statute does not prevent him from having lawyers appear before him, provide evidence that relates to the matters that he is investigating. That’s what I’m commenting on.

G. Heyman: So in your view, then, what might Mr.
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Chalke do in terms of his role as an investigator and in conducting an inquiry if his investigation leads him to the conclusion that the conduct of lawyers actually is in question and should be investigated? How might he deal with that? Or would he simply be prohibited from dealing with that, and there would be a void in the process?

R. Fyfe: Well, I think that, as I said earlier, the Law Society of British Columbia is the appropriate venue for those issues, and Mr. Chalke would undoubtedly identify facts that would come to light with the Law Society of British Columbia.

G. Heyman: So we might, presumably, then have an inquiry conducted by the Ombudsperson which, to be complete, would need to be followed up by a further inquiry from the Law Society.

J. Yap: Good segue to my question regarding the ability of the Ombudsperson to summon and examine witnesses under oath. It’s a two-part question. Are the examinations always under oath in the Ombudsperson process or only as required?

R. Fyfe: I would say that’s probably a question more properly for the Ombudsperson. My understanding is that it can be either-or and that it’s in the Ombudsperson’s discretion.

J. Yap: And the ability to compel witnesses, from the point of view of government and yourself, representing the Attorney General, recognizing that this would be subject to the terms of reference and the workplan that the Ombudsperson would develop. He will have complete latitude on who he decides on his own should be a witness. Is that correct?

G. Holman: Just the basic…. It seems to me a fundamental question this committee is trying to address is: what’s the best avenue to get to the bottom of the issue? Who made the decision and why? That kind of thing. Already, with respect to the legal ability of the Ombudsperson to questions, lawyers, giving advice to authorities, there seems to be a bit of a gap there.

In your summary of similarities and differences between Ombudsperson and public inquiry, you make the statement: “Similar powers to compel production of documents and evidence of witnesses under oath and inspect premises.” But I take it they’re not the same powers. Already there seems to be an indication that there’s one area where there might be a bit of a gap in terms of the legal ability of the Ombudsperson to follow up the question.

Are there other instances, and does “similar” equal “the same”? It strikes me that perhaps it’s not. And if you could elaborate: are there some other areas where a public inquiry would have authority and an Ombudsperson might not?

R. Fyfe: Chair, if possible, I’d like to suggest that Neil Reimer could answer that question, because he’s quite familiar with the Public Inquiry Act and the differences.

N. Reimer: Really, I think the only meaningful difference is a public inquiry commissioner does have the power to inspect private premises if the owner of those premises agrees. It’s not what you would call a fully invested power. A public inquiry commissioner cannot go to a private place of his or her own decision and inspect.

But other than that, although the language in the two acts doesn’t read exactly the same…. The Ombudsperson Act was written in 1991, the Public Inquiry Act in 2007. The language around some of these powers is grammatically not exactly the same.

There really are no meaningful differences in terms of their ability to summon and compel, with the exceptions that you’ve noted — one around the acts or omissions by solicitors acting for a public authority and the power to inspect premises.

G. Holman: So in your opinion, that is a meaningful difference. That is a significant difference — the issue we’ve just been discussing.

G. Holman: Just another statement again on the summary of differences and similarities — you point out the Ombudsperson has no jurisdiction over a matter subject to another statutory review process until that other process has been concluded.

Can you remind me? It’s my understanding that two others — the Auditor General and perhaps the Privacy Commissioner…. You can remind me. I’m sorry. I’m not up on the latest. It seems to me that one or both of those offices may be or are investigating aspects of this. Does that mean the Ombudsperson is required to hold up, wait,
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on investigating certain matters until one or two of those other offices have concluded their investigation?

N. Reimer: The answer is it would depend on whether those investigations are appeals or seeking redresses under an enactment, as opposed to an investigation or review that has simply begun because that officer has that power.

The limitation on the Ombudsperson, as I understand it, is that if another act says, “If you, John Smith, have been aggrieved by an administrative action of government, you can’t go to the Ombudsperson and have him investigate the matter until you’ve….” If the act provides you a process of appeal, you have to exhaust that avenue first. That’s really what that limitation talks about.

I’m not an expert on these other statutes. So my response to you would be that if those investigations were undertaken because in the statute, that other statute itself, there is some sort of appeal process or a right to review, then yes.

Then the Ombudsperson, I believe, would need to delay to the extent that that other appeal process has been completed. But I don’t believe the Ombudsperson would have to delay if a statutory officer has instigated a review of his or her own accord and it’s something different from a complaint or an appeal launched by someone who feels grieved.

G. Holman: Well, the language seems to suggest otherwise. I guess I do wonder about that — whether other investigations, if they are underway, are going to unduly delay an investigation by the Ombudsperson. The language here suggests that the Ombudsperson has to wait until the other processes have concluded.

N. Reimer: The language is, in section 11, that the Ombudsperson is not authorized to investigate: “(a) in respect of which there is under an enactment a right of appeal or objection or a right to apply for a review on the merits of the case to a court or tribunal constituted under an enactment, until after that right of appeal, objection or application has been exercised….”

The wording of the statute is such, in my view, that it deals specifically with a right to appeal by an aggrieved person. That’s the extent of the limitation on the Ombudsperson.

Now, it may well be that if there are other investigations ongoing…. Mr. Chalke, in his letter to the commission, raised that as a potential concern — the issue of overlap. That is an issue, but I do not see that as being a statutory prohibition under section 11 that would limit his abilities.

C. James (Deputy Chair): Just to come back to a couple of questions. In the table, again, with the comparisons, you talk about the right of witnesses and participants. I’m presuming that witnesses can be called. Does that include cross-examination of witnesses? This is obviously something that we’ll ask the Ombudsperson as well. But in your view, is the ability there for cross-examination of witnesses as they appear?

R. Fyfe: Again, I think that is a question that should be directed to the Ombudsperson, because it is the process that the Ombudsperson would establish. I think the ability is there, but I think it really depends on their process and how they conduct it. The requirement for existence of special circumstances for matters that are dealt with in public and so on…. It may be a limited ability, but I think that it’s there in some form.

C. James (Deputy Chair): From your perspective, within the legislation, that ability is there.

C. James (Deputy Chair): Okay. If I may just continue on to the second question, just as a follow-up, around the results of a review and the results if this is referred to the Ombudsperson.

You talked about making recommendations, that the Ombudsperson could make recommendations. I think that’s a little bit different than the question that was asked around referrals — referrals to the RCMP for example, if that was something that came up, or to designate blame or to designate fault in a recommendation.

Then, where those recommendations…. From your point of view and from your perspective, where would those go? What would happen to those? If they’re simply recommendations, is there an opportunity to go further than recommendations? Where do you see that going, if this referral happens with the Ombudsperson?

R. Fyfe: Two parts. One is making recommendations, and the other is finding fault. I think, again, if you look at appendix A, which includes a number of past reports that the Ombudsperson has prepared, clearly, there has not been a hesitation to find fault in many cases and to be very clear about that and to make recommendations. Recommendations, such as recommendations that a matter be referred to the RCMP, could be, I think, included as part of the Ombudsperson’s recommendations.

Again, it would be based on the findings of fact, which would undoubtedly be recited in the report that would come back to this committee.

G. Heyman: Mr. Fyfe, I want to return to the question of the conduct of lawyers. Let me begin by saying what, in some ways, is obvious. We’re here because of a referral by the Ministry of Health, who identified that the public has a legitimate interest in getting to the bottom of all of
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the facts, events, conduct and responsibilities related to the firings in the Ministry of Health.

The Minister of Health thought that the Ombudsperson was the best person or the Ombudsperson Act was the best mechanism to use to conduct an efficient inquiry that would allow a full investigation of all of the events and a full reporting of the public and the public interest. The Ombudsperson, in his letter to us, has said that it’s critically important, in his view, that the public have full confidence in any inquiry that he undertakes, or it simply wouldn’t meet its stated purpose.

You have correctly identified for us that the Ombudsperson cannot investigate the conduct of lawyers, although the Ombudsperson can certainly question lawyers. If the Ombudsperson believes that, as a result of his questioning, the question of the conduct of lawyers should be referred to the Law Society, he can do so.

That’s fine as far as it goes. In my earlier question, I indicated that, in effect, we might have to have consecutive inquiries to get to the bottom of it.

The fact is that the Law Society may investigate the conduct of lawyers. The Ombudsperson’s mandate is to investigate matters of appropriate administrative conduct and administrative fairness.

The Law Society will investigate the conduct of lawyers to determine whether or not it’s lawful, not necessarily whether or not it was appropriate or fair in the circumstance. Further, the Law Society…. We’ve already established that the Ombudsperson inquiry will, in all likelihood, be in private, as opposed to a public inquiry. The Law Society inquiry would certainly be in private. But another important distinction is the Law Society is under no obligation — and, in fact, is unlikely — to publish anything other than its final finding — not its actual investigations, what it uncovered; simply whether conduct was lawful or not.

My question to you is…. This seems to me to be, potentially, a significant gap in the inquiry’s ability to fully answer the questions of interest to the public and to the workers who were fired. Would you agree?

R. Fyfe: Well, I would agree that it seems that way to you. But the fact is that the…. I think the purpose for the restriction in the Ombudsperson Act is because it’s related to advice that’s provided to an authority. If you look at what the Ombudsperson is investigating and making decisions on, it relates to fairness of government conduct. If the advice is being provided to an authority, then it’s the authority that is ultimately taking the action that’s being investigated, and there’s not restriction on the investigation and recommendations with respect to the actions that have been taken by the authority.

Quite honestly, I think this line of discussion goes to the question of the role of the Ombudsperson, in terms of the scope of what the Ombudsperson is investigating, and I don’t think that the restriction prevents the Ombudsperson from discharging that function.

The advice or the decision or the recommendation is given to an authority. The authority acts or doesn’t act on the basis of that. It’s the action of the authority that then becomes the subject of the investigation by the Ombudsperson and any recommendations or findings.

G. Heyman: With respect, Mr. Fyfe, we’re not here to determine whether the Ombudsperson Act is appropriately constructed. We’re here to determine whether within the confines of that act an inquiry can be conducted that fully satisfies the public interest in knowing what happened. That was the purpose of my question, to identify whether there is potentially a significant gap with respect to the conduct of lawyers — that may not be fair but may in fact be lawful — that would be in the public interest to have answered and, following through your logic, may well not be. That, in fact, is why we’re here in the first place.

R. Fyfe: I thought that I’d answered that question by pointing out that the advice or the recommendation is to an authority, and the authority may or may not act on that. My submission to you would be that the advice is not relevant, for example, if the authority chooses not to act on it. There’s been no unfairness. If the authority chooses to act on it and it’s unfair, the Ombudsperson is not precluded from making a finding of unfairness with respect to the action of the authority.

C. James (Deputy Chair): I just want to probe a little bit on that as well, a little bit further, because it relates to the question around where the recommendations go from the Ombudsperson when they come to the committee.

You mentioned that blame can be found, that they can then make recommendations — or, as you said, can give advice — to an authority or make recommendations to an authority. Does that go directly, or does the report then come to the committee, and the committee then moves things forward?

For example, if the Ombudsperson found something that they believed needed to be referred to the RCMP — to just use an example. That comes as a recommendation to the committee in the report? Or is it possible for that to be a direct referral from the Ombudsperson to the RCMP, to be able to be acted on or not acted on by the RCMP?

N. Reimer: The short answer is it depends how the committee instructs the Ombudsperson to report, be-
[ Page 1455 ]
cause the committee has that ability. Section 10 says that the committee can — or the Legislative Assembly can — when referring a matter to the Ombudsperson, attach special directions to it, to such a referral.

If no special directions are given in respect of reporting, then the act says that the Ombudsperson may report back as he thinks fit — which is a fairly general provision and provides, obviously, a wide degree of discretion to the Ombudsperson.

Certainly, there are issues of timing of a report. I’m sure that the Ombudsperson will make representations to you about that.

In terms of what the report may contain and the decisions around publication, if the committee decides that the Ombudsperson is to report back to the committee, then I think the committee would be seized with those questions of what next.

If the committee in its referral instructs the Ombudsperson to prepare a report that would be suitable for public release without any review under the Freedom of Information and Privacy Act, for example, which must occur in the case of a public inquiry board, then I expect that the Ombudsperson would prepare a report in that way. Then maybe the committee would not, in fact, have any burden in terms of a review along those lines.

I think the committee has pretty broad discretion in terms of how it instructs the Ombudsperson. Once the committee receives the report, I don’t see, subject to procedural advice from the Clerks, anything that would preclude the committee from referring one or more of the matters in the report to another authority for further investigation or action, if the committee felt that that was advisable.

R. Fyfe: Chair, if I could just add to that. If you look at section 11 of the act…. We’ve been spending a lot of time talking about the ability of the Ombudsperson to investigate a decision, recommendation, act or omission in relation to lawyers. This may be a question for the Ombudsperson as well, but it says, “of a person acting as a solicitor for an authority or acting as counsel to an authority,” and then it concludes: “in relation to a proceeding.”

I think it’s worth noting that it is…. I would interpret that “in relation to a proceeding” as narrowing both. So the scope of what we’re talking about here relates to proceedings, as opposed to all such conduct.

C. James (Deputy Chair): Just to follow up so that I’m clear, I heard you say, then, it will be that recommendations or referrals can come in the report, and the report will come to the committee. The committee, in its terms of reference, could make it as broad as possible. But the committee then has the authority to refer those issues forward if the recommendations are made by the Ombudsperson, or the Ombudsperson directly can make a referral before or as the report comes to the committee. Is that within the purview of the terms of reference, from your point of view?

N. Reimer: In my view, I think the committee could instruct the Ombudsperson to refer matters further. Again, we’re dealing with a situation where we haven’t had this type of referral before, so there isn’t a precedent to look at.

This section of the act talks about the Legislative Assembly or a committee referring a matter, and for the Ombudsperson to report back. That’s the exact phrase in the statute. It’s presumed the Ombudsperson reports back to the committee. However, the committee can issue special directions.

It may be something to be thought about further. I’m not sure that we can give you a definitive answer here today. It strikes me, as a general matter, that the committee could authorize the Ombudsperson to forward issues, recommendations, whatever, directly to another body, if the committee so chose.

R. Fyfe: Chair, again, I wonder if I could just supplement that. Although the question hasn’t been asked, I think it’s important to bring up the fact that where there’s a referral under subsection 10(3), there’s a provision in subsection 10(5) that’s important to note, because it does touch on the question that’s just been discussed.

Under 10(5), in respect of an investigation or report made under subsection (4), sections 23 to 26 do not apply. Those are the sections that deal with the Ombudsperson’s procedure after investigation, the requirement for an authority to notify the Ombudsperson of steps that have been taken, the report of the Ombudsperson if there’s no suitable action taken and the requirement for informing the complainant. Obviously, if there’s no complainant, then there’s nobody to inform.

I think that it does bear on the committee’s deliberations, because the suspension of those sections in respect of a referral make it important that the committee think about that, if the committee decides to go to a referral, and make sure that that similar follow-up provision is considered either as something that the committee would deal with or something that is included somehow in the referral to the Ombudsperson, if that’s possible.

C. James (Deputy Chair): I certainly appreciate that, and I appreciate, I think, the comments that you made, Neil, around this not having precedent.

I think that is part of the reason that it is so critical that we ask these questions in making a decision around referral. If there isn’t precedent…. If we are setting preced-
[ Page 1456 ]
ent or making a decision, it’s important that we’re aware of where the report goes, where the recommendations go. Is this something that goes to government? Is this something that comes back to the committee? Does the committee then have responsibility for making sure that those referrals go forward?

I think it’s a critical piece, as we look at our further discussion and further work as a committee, that we make sure we’re clear on that and that we make sure — again, back to the public, back to the transparency and openness — the public has confidence those recommendations can be followed up by a committee.

N. Reimer: I would just say quickly that there’s no question that the report would not go to government unless the committee directed it to do so, unlike a public inquiry.

G. Heyman: I’m referring back to the letter we received from the Attorney General, and I assume that you either drafted it or provided significant advice in its drafting. In the second paragraph, the Attorney General states that the Select Standing Committee may wish to attain its own legal counsel with respect to the matters raised by the Ombudsperson and then goes on to say that she is taking the opportunity to provide some observations.

In the event that we determine that we need some independent legal advice for whatever reason — including, perhaps, a difference of opinion between yourself and the Ombudsperson about the nature of the scope of his jurisdiction in this case — do you have any suggestions for us or ideas about how counsel for this committee might be chosen, how that person might be paid and what sort of instruction we might want to give?

R. Fyfe: I actually think those are probably matters for Madam Clerk, for discussion with the committee. Certainly, we have processes that we follow in terms of procuring lawyers, outside counsel, for work that we do for clients. But because this committee is a committee of the Legislative Assembly, we could certainly work with the Clerk’s office to assist on that. But it would be, really, a matter for advice from the Clerk’s office.

S. Hamilton (Chair): As a matter of process, I had pretty much intended that we would spend an hour with you, Mr. Fyfe, then give Mr. Chalke an opportunity to speak and, if necessary, go back to Mr. Fyfe if there are any further follow-up questions that the committee might have and maybe have a little bit of time for deliberation as well.

J. Shin: Mr. Fyfe, I understand that the documents that are tabled as exhibits in a public inquiry become public and that anybody can look at them, just like the exhibits that are given to court in a trial, but for the ombudsperson process, which I believe is private, the Ombudsperson has the statutory discretion whether or not to publish the report, in fact.

With this committee making the referral, we will be requiring, in the terms of reference, that we have the report in writing. Would you be able to please provide clarity around the documents — be it transcripts to evidence — provided to the Ombudsperson in his investigation, where he has to rely on those documents as relevant in his writing of the report? Will those be made public or be available to the committee? Or does he have the statutory discretion to be able to release those?

R. Fyfe: That would probably be an appropriate question for Mr. Chalke. The one observation, though, that I think is important which is raised by your question is that the decision in terms of waiving solicitor-client privilege and things of that nature and certainly dealing with matters that relate to individual privacy…. Those would all be considerations that would factor into the terms of reference that would be developed for a commission of inquiry.

The fact that documents are becoming public where government is involved in litigation…. Certainly, if we think back a year or so to matters involving the Auditor General, there was a fair amount of litigation and similarly with the Privacy Commissioner in the Blood Tribe case, where government took the view that if documents are going to become public, then they’re going to take a much closer look at what can be disclosed that would be subject to solicitor-client privilege or litigation privilege.

Your question raises those issues, which are important considerations in terms of which process makes more sense here.

G. Holman: Two questions. The Ombudsperson is suggesting to the committee, in his letter to us, that if he were to undertake this, section 19 of the act be amended. I’m wondering if you have a view on that or a comment on that. That seems to be a very significant concern he has raised. Then I’ve got another question about budget.

R. Fyfe: I would answer two parts to the question about section 19. The first is that when we saw that, we actually went and took a fairly extensive look through legislation to see whether we could find provisions that might raise an issue.

As I mentioned earlier, the only one that we saw that might raise an issue was the Pharmaceutical Services Act, section 7, which provides for the ability of the minister to refuse disclosure of information, but it is not a blanket confidentiality prohibition. It simply provides the ability for the minister to refuse. My understanding is there is no intention for the minister to refuse. That could be
[ Page 1457 ]
something that we could provide confirmation of as well.

Now, given the time that we’ve looked at this…. The second part of the answer is…. We’ve obviously been working under fairly tight time constraints to prepare for the committee. It may be that the Ombudsperson at some point encounters an issue. Again, I think the ability to come back and discuss that issue, if there is one, would make sense.

To my knowledge, there has been no specific statutory prohibition, confidentiality requirement identified. From the work that we’ve done, we haven’t seen one. So we’re not saying that it doesn’t exist, but we certainly haven’t been able to find one.

G. Holman: My last question is on the budget. You make a point in your summary about the cost of recent public inquiries. That has been suggested as a problem with going that route. It’s just too expensive, and it takes too long. It’s not entirely clear to me, though, how that might compare to an investigation by the Ombudsperson.

I’m more interested in how the budget actually gets set. How does the budget for an inquiry get set? I mean, here you’ve stated that the Ombudsperson determines the cost and duration of the investigation. That’s not quite true, as I understand it. The Ombudsperson, as an independent office, comes to this group for recommendation about budget, and then government has to decide whether or not to provide it. So in that case…. In other circumstances, too, there are references to: “Well, the committee could recommend this or suggest this.”

I’m a little concerned about the involvement of this committee. We do our best to be non-partisan here and actually have been pretty successful in doing that. I’m a little concerned about the elements of the investigation that might come back to the committee for some direction or recommendation. That’s a general comment.

We’re also in the position of approving budgets or making recommendations. That, I think, puts us in a bit of a difficult position, and you’ve got….

Sorry for going on. My question is: how is the budget for an independent inquiry established? Does government set that budget, or does the commissioner set that budget?

N. Reimer: There’s a statutory appropriation provision in the Public Inquiry Act which simply says: “The costs and expenses incurred in connection with an inquiry under this Act must be paid out of the consolidated revenue fund, in the absence of an appropriation of the Legislature available for that purpose.”

The short answer is that government has limited control at the outset to establish a budget and require a commissioner of inquiry to stay within it.

The government, in setting the terms of reference, does set the remuneration of the commissioner or commissioners. But the commissioner has broad latitude to hire counsel and staff and to spend money on facilities and resources. I don’t know the ins and outs and the details of the extent to which government provides information and assistance to a commissioner in terms of, “Here are the general guidelines within which government operates,” but I do not believe that government can dictate that to a commissioner.

My understanding of the process is that the commissioner hires someone as a financial officer to determine what appropriation will likely be needed, and then that money is spent. It includes, in the case of an inquiry, the commissioner, any staff and counsel for the commissioner, office space, computers. They really are starting from scratch.

Jane, I know that you had another question. I don’t want any questions going unasked. We are going to come back to it, if you would please hold that. We’ll have an opportunity to ask it a little later on.

I do want to thank you very much for taking the time. I know you’re going to take a seat in the gallery and take copious notes over the next little while.

We’ll take a brief recess, and I’ll invite Mr. Chalke to come up and prepare for his presentation.

S. Hamilton (Chair): We now have in our presence Mr. Jay Chalke, our Ombudsperson, newly minted.

Welcome. It was a pleasure meeting you yesterday. I look forward to the discussions today, Mr. Chalke. And you have with you?

I will just simply turn the floor over to you, Mr. Chalke, for your presentation. Then we’ll go to the committee for questions when you’re done.

J. Chalke: Great, thank you. Good morning, Chair, Deputy Chair, members of the select standing committee. I am pleased to be here this morning to initiate what I know will be a constructive, collaborative relationship between this committee and the Office of the Ombudsperson under my leadership. We have important, if I can put it this way, regular work to do together, and I look forward to a productive and collegial discussion
[ Page 1458 ]
in the years to come, starting this fall when I appear before you concerning our budget submission for 2015-16.

I’m here this morning at your invitation to provide whatever assistance I can as you deliberate on the Minister of Health’s request to you of July 3.

I provided you with a lengthy letter last week. My apologies for the length of the letter. To quote Pascal, I would have written you a shorter letter if only I’d had more time.

My intention this morning would be to spend a bit of time discussing the main points from that letter and providing you with my assessment of where things currently stand. However, I want to be efficient with the committee’s time, so I’ll attempt to make my comments reasonably short in case you have some questions you want me to address.

I want to start by reiterating what I said in my letter. In providing it and in appearing today, I’m not advocating for or against this committee making a referral under subsection 10(3) of the Ombudsperson Act.

My purpose is to provide my best assessment of three things so that the committee can make a decision in the public interest. Those three things are: (1) a realistic description of what an ombudsperson investigation would entail, (2) an enumeration of the necessary legislative and practical measures for an investigation by our office to be effective and complete and (3) the steps that this committee can take to ensure public confidence in the process and the outcome.

I want to address one issue right off the top. Some questions have been raised about whether you should make a referral because of my prior employment in the public service. I would point out that I assumed that that very employment history is one of the things that led the Legislature to appoint me as one of its officers. The independence of my office from government is essential to our impartiality and our public credibility. It is a core tenet of all officers of the Legislature and something that I will fully protect.

I will say that my role in the Ministry of Justice was completely unrelated to this matter. My branch did not provide legal advice to line ministries, such the Ministry of Health. Beyond that, I do not think it appropriate to outline how we would approach the investigation if you make this referral and what my role would be.

There are three reasons for this. First, it’s premature to do so. We’ve not seen the terms of reference of the referral.

Second, there are various factors to consider. It’s only prudent in the event this committee makes a referral that I take some time to consider all the aspects of how we would approach this task, including this issue. It would be my intention to seek the advice of some of my predecessors, my colleagues in other jurisdictions and others.

Third, for me to start outlining our approach to implementing a referral that has not yet even taken place smacks of doing the very thing that I indicated I’m not prepared to do, and that is to be appearing to advocate for or against a referral.

With those preliminary remarks complete, I’d like to begin by turning to section 10 of the Ombudsperson Act. The act, in section 10(1), provides for broad discretion in the Ombudsperson to investigate on a complaint or on the Ombudsperson’s own motion decisions, recommendations, acts, omissions or procedures by a public authority “that aggrieves or may aggrieve a person.”

That broad power to investigate, and broad discretion on whether to do so, forms the basis of the regular work of our office, some 8,000 initial contacts by British Columbians resulting in some 1,500 investigative files concluded annually.

However, that discretion does not apply in the case of a referral of a matter by the Legislature or one of its committees under section 10(3) of the Ombudsperson Act. In that instance, we are compelled by law to investigate. That authority has apparently not previously been exercised in the 35-year history of the Ombudsperson in this province. It should not, then, come as a surprise that there are some issues that need to be addressed, given the dual conditions of the mandatory nature of a referral and the absence of any precedent.

In my July 7 letter, I pointed out that an investigation referred to under 10(3) must be conducted within the legal structure of the Ombudsperson Act. The chart appended to the Attorney General’s letter received by this committee on July 8 translates some of that into an issue of scope and therefore suggests many of my concerns maybe can be addressed by a carefully circumscribed scope by the select standing committee.

In my view, the issue is beyond one of scope. It also pertains to the powers of the Ombudsperson under an investigation. Subsection 10(5) disapplies sections 23 to 26 from an investigation of a matter referred under 10(3), but the rest of the act, including the limitation and boundaries of powers and process, do apply.

That the Ombudsperson is a creature of statute has long been recognized by the courts. Although the remedial purpose of the office has been acknowledged, including in the comments you’ve already heard this morning, that is tempered by the fact that we are a statutory body.

As then Justice Dickson said in the British Columbia Development Corporation v. Friedmann case, the 1984 Supreme Court of Canada decision that is the starting point for any consideration of how the Ombudsperson Act is to be interpreted: “At the same time it must be emphasized that the Ombudsman is a statutory creation. It is elemental that the nature and extent of the jurisdiction which may be exercised by the Ombudsman in this case turns upon the interpretation to be given the specific language of the British Columbia legislation.”

Simply put, there are procedural and powers issues to
[ Page 1459 ]
be addressed, and these are not matters that can be resolved in the referral itself. In short, your referral is subject to the statute, not the other way around.

That leads me quite directly to the first substantive point I wish to make, which pertains to the private nature of investigations carried out by my office. I want the committee to understand that an investigation under our act is private, and it is not open to me to change it into a public process simply because people are interested in the issue.

While an Ombudsperson’s final report may be public, the very nature and strength of Ombudsperson investigations is that we do our work in private. As noted in my letter, the experienced investigative staff in the office consider the ability to conduct investigations in private as integral to our success.

This has also been recognized in litigation involving this office. As was said by the British Columbia Supreme Court in 1985 in the Levey case, the confidentiality aspect of the legislation is paramount and fundamental and without it the Ombudsman could not function.

Against this legal backdrop, it is for the committee to decide whether a private process would be desirable and in the public interest in this matter.

I now want to turn to the issue of our access to the necessary information during an investigation in the event that you find, in principle, a private investigation is appropriate. The issue of my office’s access to information is a critical issue, as it pertains to the ability of my office, if a referral is made, to have access to all the information I require in order to meaningfully carry out this assignment.

I expect we will all agree there is no point in spending tax dollars and raising expectations associated with a referral to my office if it is foreseeable that I may encounter unique legal and practical obstacles to obtaining key information — obstacles which would not be faced by other processes.

In my letter I expressed three concerns about impediments to the information I foresee being necessary to discharge a referral from the committee. The three are: (1) that section 19(2) of the Ombudsperson Act could well operate to prohibit a person who is bound by a statutory confidentiality clause, as opposed to the public service oath or a common law rule, to provide our investigator with testimony or documents, (2) our access to information is subject to cabinet privilege, and (3) the impact of confidentiality provisions entered into as a condition of settling litigation.

Since sending you my letter, I’ve had the opportunity to carefully review the document that the Attorney General sent to the committee on July 8. Having read that document, I came this morning to advise the committee that the Attorney General’s letter addressed my concerns on one of the three issues, partly addressed my concerns on another, and unfortunately, does not address my concerns on the third and most crucial issue.

However, the Deputy Attorney General’s confirmation a few minutes ago that the protocol will be extended to oral statements means that two of the three issues are now addressed.

The issue on which my concerns have been addressed pertains to my request that the committee seek an assurance that government would release individuals from confidentiality undertakings entered into as part of settling prior litigation. As I stated earlier, my office has not seen these confidentiality clauses, only that their existence has been reported in the media. The chart appended to the Attorney General’s July 8 letter states: “Government is prepared to provide the release, as suggested by the Ombudsperson.”

The Attorney General’s letter then speculates that the contractual confidentiality provision may have been legally ineffective anyway, in the case of an Ombudsperson investigation. It also states that most of the impacted agreements would likely relate to a time after the period of time that the Ombudsperson is being asked to investigate.

I note that the Minister of Health’s letter to the committee requests that the referral include: “The actions taken by government following the terminations.” So no end date is provided, at least in the Minister of Health’s description. But in any event and assuming that those two qualifiers in the observations document are legally irrelevant, the Attorney General appears to have provided a commitment along the lines that we have requested.

The second relates to section 18 of the Ombudsperson Act and access to information that may disclose cabinet confidences. As I said, this was the area that, as of this morning — before this morning — I thought we were part way there. We may be all the way there.

Having received the confirmation that the protocol applies, I think it’s important for the committee to understand the protocol. As I did not do so in my July 7 letter, I’ll now describe in general terms what section 18 does and how the protocol that the Attorney General is confirming operates.

Section 18 of the Ombudsperson Act authorizes the Attorney General to prohibit my office from seeking information where the Attorney General certifies that the information might impede an investigation or disclose deliberations of the executive council, either generally or on secret or confidential matters that would be “contrary or prejudicial to the public interest.”

A protocol entered into in 2011 between the Ombudsperson and the government tempers the somewhat absolute prohibition in section 18 by putting in a process by which Ombudsperson investigators obtain access to cabinet records for the purpose of an investigation. My office treats those records with the utmost care and confidence.

The protocol then provides for the conditions in which
[ Page 1460 ]
the Ombudsperson may, in a public report, make reference to a cabinet record and provides an opportunity for objection by government and, in the event of a dispute, includes the use of a facilitator to ensure full communication between the parties.

Ultimately, the Attorney General retains the decision-making responsibility as to whether to issue a certificate under section 18. And if such a certificate is used, I am required by section 18 to report the issuance of the certificate to the Legislative Assembly.

This protocol represents a good-faith effort to strike a balance between the true need for cabinet secrecy and the imperative of effective investigation by the Ombudsperson. In short, at least as it relates to cabinet records, my office gets the information it needs, and the cabinet secrecy question is dealt with at the report stage.

I appreciate the Attorney General’s confirmation to apply the existing protocol and the Deputy Attorney General’s commitment this morning to extend the protocol to oral statements. You’ll also be relieved to know that the Deputy Attorney General’s commitment substantially shortens my remarks, which I’m sure, is good for you.

The third issue — and the one on which my concerns have, unfortunately, not been addressed — pertains to my concern about the potential impact of section 19(2) of the Ombudsperson Act and its foreseeable limitation on my ability to obtain information that is protected by a statutory duty of confidentiality, other than one arising from a common-law rule or the Public Service Act oath. I note that there is no equivalent to section 19(2) of the Ombudsperson Act in the Public Inquiry Act and, for that matter, no such provision in the statutes that have been more recently drafted to govern other officers of the Legislature.

Neither of the two Attorney General documents appears receptive to an amendment such as I have requested, this despite the fact that the amendment would be quite minor and would bring my powers into line with those of the other officers. Rather, the Attorney General’s document of July 8 states that either I should, in the course of my investigation, identify any information that is unavailable as a result of this section or you as a committee should instruct me to carry out my investigation subject to this restriction.

With the greatest of respect, I see several difficulties with this suggestion. First, since a large number of the key witness will be current or former employees or contractors of public bodies, there is a serious question as to whether the statutory ban on disclosing personal information — set out in section 33 of the Freedom of Information and Protection of Privacy Act, a breach of which is a provincial offence unless it falls within the listed exception — would by itself severely limit my access to information, a limitation I do not normally face where there is a complainant who can consent to have that information provided to my office, as it pertains to their case, under section 19(4) of the Ombudsperson Act.

In sharp contrast, the situation here, where the expectation is that I would release a report that could impact reputations of specific individuals, makes this situation entirely different and brings those provisions directly into play.

Second, the statutory landscape in relation to the protection and privacy of information is different than when section 19 was first enacted. Given the Health context out of which all of this arises, there may foreseeably be other provincial or federal confidentiality provisions that are operative. Given the short time available and the uncertain direction that any resulting investigation may take, we have not tried to speculate on what provincial or federal confidentiality provisions may apply. We simply do not know at this time what statutory provision might well be relied upon by a witness or their counsel objecting to a particular line of inquiry based on section 19(2) of the Ombudsperson Act.

Third, in the absence of a clear right to information, as exists in other statutes — one of which I pointed out to you in my letter — the question of where the line is between permissible and non-permissible disclosure under any particular statute is, at the very least, likely to provoke litigation and may even lead to allegations of improper disclosure.

In my view, it’s simply unwise and unworkable to proceed with a review of this magnitude and significance with one’s fingers crossed in the hope that this issue will never come up or will work itself out somehow through the expensive, time-consuming and uncertain litigation process, or that we should risk the release of a report that may, once again, lack important information and full disclosure.

None of that is in the interest of legal certainly, finality and credibility. And the fact that there may be a legal disagreement between the Attorney General’s ministry and my office on fine legal points regarding the interaction between the Freedom of Information Act and the Ombudsperson Act in an unprecedented review request should do little to give this committee comfort. In the end, it’s not simply the view of the government or my office that matters; it is what a witness represented by counsel may do when we are examining them. Therefore, I reiterate my request that the committee not refer this matter to the office unless and until this issue is addressed.

I would also note that the Attorney General’s document contains no rationale for not introducing the amendment. In fact, it doesn’t indicate whether government is or is not agreeable to this, although the tenor definitely suggests that the requested information is not forthcoming. But frankly, I’m at a loss as to what the principal rationale is for declining to make this amendment.

I also note that, based on our research carried out
[ Page 1461 ]
over the past few days, only in two provinces do statutory confidentiality provisions act as a bar in a manner similar to section 19(2). And even in one of those two provinces, their health information statute is exempted from that bar.

The other provinces with ombudsperson statutes appear to override the statutory confidentiality provisions in other acts in favour of providing information to the ombudsperson. Thus, most of Canada already has what it is we’re seeking. That indicates that there is, at the very least, strong precedent for our suggestion.

It’s not my intention to compare processes under a referral under the Ombudsperson Act with a public inquiry. That comparison was given to you this morning. There is, however, one aspect of the comparison that I do want to highlight because it relates to section 19(2). The comparison chart provided to the committee — that was discussed earlier — addresses this on page 16, in a section entitled “Ability to Obtain Information or Documents Protected by Other Statutory Confidentiality Clauses.”

Section 19 of the Ombudsperson Act is cited as a limiter to our access. That is correct. For a public inquiry, the notation is that its access is also limited, citing section 14(3) of the Public Inquiry Act. I would just note, for the benefit of the committee, that the two sections are different. The Ombudsperson Act provision incorporates confidentiality provisions in other statutes. The Public Inquiry Act deals with something more limited in admissibility of evidence in a proceeding. Simply put, the prohibition in section 19(2) goes further than section 14(3) of the Public Inquiry Act.

The absence of a commitment by government to this committee to amend section 19(2) is, in my view, a significant potential barrier to an effective investigation. And as I said, I reiterate my request that you not refer the matter until that’s dealt with.

We’ll now turn to another question, as I raised in my letter, pertaining to the interaction of any investigation we might carry out with the normal statutory function of other officers of the Legislature. Because a section 10(3) referral results in a mandatory investigation by our office, and because up to now — for example, at your July 8 meeting — the prevailing discussion has been to have a broad referral, there is a risk of duplication and overlap between our office conducting a referred investigation and one of the other officers of the Legislature carrying out an audit, investigation or other matter under their own act.

Such overlap would not be in the public interest. It would be inefficient, would waste time and money and would inconvenience those involved, subjecting them to multiple processes with potentially inconsistent outcomes.

That’s why I am asking the committee, if it does refer this matter to my office, to ensure that any terms of reference give me the discretion to limit the scope of an investigation referred to us so as to avoid overlap with the work of other statutory officers who are operating under their own acts.

Turning to budget, my point is simply that unless a supplementary allocation is made that fully addresses the cost impacts of this investigation, the mandatory nature of this investigation, arising as it does from a section 10(3) referral, has the effect of reducing our regular service to ordinary British Columbians on a dollar-for-dollar basis. I think that would be unfair. That regular work of the office helps people who, unlike government, have no effective options to having their matter considered by the Ombudsperson.

I was heartened by the discussion by the committee last week that there is broad recognition of this need. In the event that a referral is made, it would be my intention to develop a budget and return promptly to this committee for funding.

I would foreshadow at this time that our existing operations are more than fully subscribed, and we have a great many cases that have been accepted for investigation that must wait in a queue for our investigators to become available. Thus, I regret to say I’m not in a position to contribute to the cost of this investigation from our existing allocation assigned to the office. Thus, we would require a full allocation for this mandatory investigation.

Finally, I wish to turn to the two aspects of public confidence — over and above the statutory powers question I’ve already addressed — that I highlighted in my July 7 letter.

First, it’s my view that it would be best if this committee could find some way to consider the views of the individuals whose employment was terminated about the question before you under section 10(3). I say that because normally our office operates on the basis of complainants who voluntarily seek our service. That voluntary participation is set aside if you make a section 10(3) referral.

It is in the public domain that the affected employees have, as recently as July 6, expressed a view not in favour of my office having this role, and the committee decision will be better informed if you obtain and consider their views. That expression of views in no way requires the committee to hear evidence that would pertain to the substantive issues arising in an investigation or inquiry itself.

As my letter indicated, the two most precious assets that my office has, both carefully developed and nurtured over 35-plus years, are our independence and our impartiality. Both are essential to maintain public confidence and credibility.

I was the Public Guardian and Trustee for over a decade, and as the province’s public fiduciary, I spent a lot of time thinking about the notion of stewardship — stewardship of assets, organizational stewardship and stew-
[ Page 1462 ]
ardship of the public trust. I’m new in my job — I’ve been here two weeks now — but I already fully appreciate that careful stewardship of independence and impartiality that has been passed to me by thoughtful and wise predecessors, and it’s now mine to protect. The reports of my predecessors frequently cite the importance of the non-partisan, independent nature of my office.

In my July 7 letter I cited one example of a situation that was clearly politically contentious and the question of whether the Ombudsman of the day would investigate. I’m going to quote from what I said a week ago in my letter.

“In 1991 a former cabinet minister sought an investigation by Ombudsman Owen into the former minister’s own conduct. Premier Johnston did not object to the investigation. The Ombudsman indicated that he was uncomfortable with the partisan nature of the request and indicated he would not carry out an investigation unless the Leader of the Opposition supported such an investigation. The investigation ultimately did not take place. Although the circumstances are different, I share Ombudsman Owen’s well-placed discomfort.”

The issue before you has engendered a partisan division. I appreciate there are immediate imperatives that are pushing some towards and others away from a referral to my office. I would ask you to take the long view and not just seek quick answers.

An outcome that results in this matter being referred to my office on a divided motion and is then followed by months or a year or more of criticism of the choice of our office to conduct the review will damage my office through no making of our own. Of course, we would do our statutory duty to the best of our ability, but if we deliver an investigation report, even a high-quality investigation, into an environment that has been so polarized that it is not perceived as credible, then what’s the point? Nothing would have been gained.

I would reiterate my request of last week that this committee not refer the matter to me unless you do so unanimously. I know this committee has a reputation for being collaborative and working together in the public interest. I’m just asking that you speak with one voice, whatever direction you decide to go.

I think those are my comments. I’d be pleased to answer any questions you might have.

S. Hamilton (Chair): Thank you very much, Mr. Chalke. I appreciate your time and your comments.

I will then go straight to the committee for questions. I’ll start with Carole.

C. James (Deputy Chair): Thank you for your presentation. I think you’ve probably answered a lot of the questions that people had that are coming forward, so I appreciate that.

I just want to ask again around section 19(2) because I think there has been discussion about whether it’s possible — and you mentioned it in your opening remarks — to look at another opportunity other than legislative change to address this concern. I just want to be clear that your statement was that legislative change is critical, that without legislative change, it provides the opportunity — not that it would happen, but it could provide the opportunity — for testimony to be limited or for documents to be limited to be presented if this was referred to the Ombudsperson.

I just wanted to make sure that we have it on the record. Is legislative change, from your perspective, the only way to address the serious issue of making sure that testimony is as open as possible, that documents are as accessible as possible and that, if this was referred, you have the ability to get all the information that might be necessary in a review?

J. Chalke: That’s correct. I think the important thing to note is that the investigative dynamic that would occur in which subsection 19(2) would be engaged involves someone who we would be interviewing who may well be represented by counsel.

In an investigation such as this, where there is some reputational risk involved for the individuals involved, their counsel may be under instructions to limit their involvement to that which is legally required. Thus, the difficulty we will have is that whatever the government’s willingness to release documents to us won’t be the issue. The issue will be that we will be dealing with a private citizen, either current public servants or former public servants, or private individuals who will be exercising their rights under that act, or their obligations to not provide information to us if it’s covered by another statutory confidentiality provision.

Unfortunately, I don’t think there’s much that this committee can do in the context of the referral to overcome that difficulty.

I want to ask a number of questions, and I probably shouldn’t do them all at once, so I’ll ask a couple and come back.

The first one is…. I just want to follow up on a question I asked of Mr. Fyfe, with respect to your ability to find fault, assign blame if it’s appropriate and report to the police or the Law Society. You would confirm that, were we to refer this issue to you, that is within your capacity?

In terms of reporting a matter to the police, if during the course of our investigation we have reason to believe that an offence has occurred, then we would be able to. Not surprisingly, we conduct a lot of investigations in regular work, and we have a protocol about how we would report matters to the police if during the course of an investigation we had reason to believe that an offence had occurred.
[ Page 1463 ]

G. Heyman: This follows up on a longer exchange I had with Mr. Fyfe. The Minister of Justice outlined in her July 8 letter that, in her view, the conduct of lawyers is not at issue in this case.

Mr. Fyfe indicated, presumably correctly — and my reading of the act was the same — that you’re statutorily prohibited, in section 11(1)(b), I believe, from investigating the conduct of lawyers, which would mean, I assume, that she believes that the investigation need not touch on the conduct of lawyers, although Mr. Fyfe indicated that you could certainly question them.

The lengthy set of questions I asked to Mr. Fyfe went to the question of: if you question lawyers about conversations, and you find pertinent details that will clearly become part of your report, just as it might lead you in particular directions and trails to pursue other evidence from other individuals….

If you were to, in fact, find that the conduct of a lawyer might be at issue, and you decided to make a referral to the Law Society…. Because you are, I presume, by section 11(1)(b), prohibited from investigating that….

My assumption is that because…. We’d not only then have an inquiry in private by the Law Society; we’d have no compunction or compulsion of the Law Society to report the nature of their investigation or anything other than their final result, which will be limited to whether the activity was lawful or not — not whether it was appropriate or fair in the sense of administrative justice that you’d be examining.

Would you care to comment on that as a potential gap in the public’s — I won’t say right to know, because it will only be established as a right to know if either a public inquiry or an Ombudsperson inquiry establishes that — ability to know all aspects of what happened, all aspects of who may have done what and who may have been responsible for what actions in respect to firings that have been reversed and, therefore, presumably were unwarranted? Who’s at fault?

J. Chalke: There are sort of three aspects to your question. The first is that, yes, section 11(1)(b) makes clear that the effect of that section is that my office is precluded from investigating for the purpose of “a decision, recommendation, act or omission” of a person acting as a lawyer to a public authority. That’s one aspect. That is what the section says.

I would, though, want to make clear that that does not prevent my investigators from obtaining the legal advice that may have been given to officials of public authorities. That’s important for the purpose of determining whether legal advice was obtained and, if it was obtained, whether or not it was followed. We do have a memorandum of understanding with government of long standing, long before my short time, for this purpose generally.

The third aspect to your question is: in the event that a matter is reported to the Law Society, how public is their proceeding? I’ve never been the subject of a complaint to the Law Society, so I’m not really sure, but like all lawyers, I always read the discipline digests very carefully, when they come out, with great interest. Aside from that, yes, obviously, they’re the master of their own processes at the Law Society.

G. Heyman: I want to be clear. I’m not presuming or meaning to imply that there was misconduct by lawyers who may have been consulted and asked for advice.

I’m simply trying to determine whether — when we eventually, as a committee, have a discussion about it, apart from all the issues you’ve raised — an inquiry by you is the appropriate forum for answering all the questions the public may have in this matter and that we’re not leaving a potential large gap that could leave open questions at the end of a lengthy and presumably costly process that we would hope, at the end, leaves the public, as you’ve pointed out in your letter, with the feeling that their questions have been answered and they now know what happened.

Just to confirm, the Law Society has their own process, and potentially some aspect of this case might not only be conducted behind closed doors but effectively never reported, except for an outcome in a very strict and limited set of criteria which relate to the legality of actions by lawyers.

J. Chalke: In the event that a complaint was made to the Law Society, I suppose that’s true. And it is true. I tried to be clear in my letter of last week that section 11(1)(b) means something, and that is a limiter as to our statutory authority.

G. Heyman: Thank you. I guess at some point the committee will have to decide how significant a limiter that may be, or if it’s significant at all. I’m prepared to save other questions for later in the morning.

S. Hamilton (Chair): Got you back on the list, George. Thanks very much for that.

D. Ashton: Mr. Chalke, thank you for appearing and for your answers so far. If I can just take you back to an answer on the first question that Carole asked, does a public inquiry face the same issue that you face?

J. Chalke: I’m not an expert on public inquiries. I’m trying to become one on being the Ombudsperson in two weeks. So I really have no great information for you. I was very much determined not to be the person who would then compare the two, but I can say there is no direct counterpart to subsection 19(2) in the Public Inquiry Act, that I’m aware of.

[ Page 1464 ]
D. Ashton: Okay, and for me, I can maybe go through the Attorney to find out about that?

E. Foster: A couple of comments about other jurisdictions in Canada. Has this type of referral, in your limited time in the job, happened anywhere else in Canada?

J. Chalke: In terms of a referral, there are provisions in other jurisdictions that contemplate a referral power. As to whether or not that’s ever been exercised, at this point in time I don’t know the answer to that.

E. Foster: One more, if I could. At the end of the whole process, should we refer this to your office, do you anticipate that your report would be a fully disclosed public document?

J. Chalke: The act is interesting with respect to reporting in the event of a referral. With respect to all the other regular — if I can put it that way — investigations we do, there’s a sort of hierarchy for how reporting is done. But all of that is set aside in the event of a referral under section 10(3). The act simply provides that I shall report back in…. Let me get the words correct for you.

Sub 10(4) says that the Ombudsperson must…. Clause (a) relates to the investigation. Clause (b): “report back as the Ombudsperson thinks fit.” Quite a general provision in terms of how we are to report back, I think, recognizing that this is probably the unusual rather than the normal kind of matter that the Ombudsperson would be involved in.

I would only say that it’s quite premature to think about how we would envision reporting back. Obviously, transparency is a critical value when we think about reporting. But it also is quite clear that it says “report back,” and the word “back” means something as well. I take that to mean I’m reporting back to this committee if it’s this committee that’s made the referral. But then it also allows us to determine the method in which we do that. I think it’s just early days, and I’d like the opportunity to consider that if this goes forward.

E. Foster: Would you then anticipate that that conversation would go on between your office or yourself and this committee, to sort of develop, if you will, the terms of reference on that?

J. Chalke: I think that it’s my statutory obligation to determine how to report back. It says that it’s to do so as I see fit. I would probably contemplate that when I was ready to report. I would advise the committee of how that would occur. But as I said, it’s very early for us to contemplate what that process would be. But certainly, it would be my intention to be open with the committee about what the method of that reporting would constitute.

C. James (Deputy Chair): Just two questions. One just to follow up on the question that Eric asked. Because I think it’s a little bit of a…. Maybe it’s a nuance, not a difference of opinion, between the reporting back that was mentioned by Mr. Fyfe and the reporting back that you mentioned, Mr. Chalke.

As you say, it is the Ombudsman as they see fit to report back. I believe I heard from Mr. Fyfe that the terms of reference could include reporting back on the committee. I’m just interested in whether you see that as a difference of opinion, or whether you see that as something that, as Eric has said, we work on together with the terms of reference, if referral occurs. That’s one question.

My second question is related to the overlap of other investigations. I think I heard you say in the beginning — and I think everyone agrees — that no one would want to be looking at duplicating work that’s already been done in another investigation. There’s no point in going in and duplicating work. But I could foresee perhaps a circumstance where some of the work that’s being done by another investigation would need to be part of what you take a look at, or if the referral occurs, could need to be part of the investigation.

I wonder if you could talk a little bit about…. Do you see any concerns there? Is there any kind of direction that would need to be given, if the referral happens, for you to be able to access the work that was going on — not to duplicate it, but to access work or information that’s being done by other investigators through this process?

J. Chalke: Turning to your first point, I think the referral power itself that you have is fairly limited. I don’t think it empowers you to, through the referral, give us authority to do things that we can’t do otherwise.

Conversely, I don’t think, through the referral, you can take away statutory powers and obligations that we have otherwise. In other words, you can’t add to or detract from what the statute provides by the terms of the referral.

You can issue special directions. That can go, for example, to the scope of the referral you’re sending to us. And kind of related to the second part of your question, one area, for example, that a special direction might work is in the notion of this question of overlap with the work of other statutory officers.

For example, if you refer something to us that covers from Nos. 1 to 6 and the Auditor General in the normal course of her work is doing Nos. 5 and 6, what I would be hopeful of is that we would be entitled to scope down our investigation to basically cover Nos. 1 to 4 so that we’re not replicating the work of others. But you’re sending me a mandatory referral. I’m statutorily obligated to
[ Page 1465 ]
carry out 1 to 6 unless you also give me the ability to then drop 5 and 6 and focus on 1 to 4.

That’s kind of how I think of the notion of the power of a special direction. It’s not to add to things that we can do in the act that we don’t otherwise have the authority to do, nor is it to detract from that.

In terms of collaboration, generally, with other statutory officers. Of course, we would intend to do that. We do that on a regular basis. The statutory officers, I’m told — it’s before my time — make sure that they…. They’re obviously concerned that they don’t replicate the work of one another — and also, at the same time, look for synergies where that’s possible. I think we would carry on doing that in the normal way that we do every day.

C. James (Deputy Chair): Just to follow up on that, so that I’m clear. Would there be anything, then, in direction that would need to be given…? Or is it a given that you would have the ability to be able to take a look at those investigations going on, if needed, as part of the referral and part of your investigation?

J. Chalke: If I can think about that question, I’ll do so. Initially, my thought is no, that we have a pretty broad power to collect information. But if I can take that under advisement, I’d like to.

J. Yap: What are your, as Ombudsperson, powers to compel witnesses? Do you have to go to court to compel a witness, or do you have that power, as the Ombudsperson, to subpoena witnesses to appear before you?

J. Chalke: Section 15 of the Ombudsperson Act sets out our power to obtain information. I’ll read it to you, and then maybe I’ll have a few comments.

“The Ombudsperson may receive and obtain information from the persons and in the manner the Ombudsperson considers appropriate, and in the Ombudsperson’s discretion may conduct hearings.

“(2) Without restricting subsection (1), but subject to this Act, the Ombudsperson may do one or more of the following: (a) at any reasonable time enter, remain on and inspect all of the premises occupied by an authority, talk in private with any person there and otherwise investigate matters within the Ombudsperson’s jurisdiction; (b) require a person to furnish information or produce, at a time and place the Ombudsperson specifies, a document or thing in the person’s possession or control that relates to an investigation, whether or not that person is a past or present member or employee of an authority and whether or not the document or thing is in the custody or under the control of an authority; (c) make copies of information furnished or a document or thing produced under this section; (d) summon before the Ombudsperson and examine on oath any person who the Ombudsperson believes is able to give information relevant to an investigation, whether or not that person is a complainant or a member or employee of an authority, and for that purpose may administer an oath; (e) receive and accept, on oath or otherwise, evidence the Ombudsperson considers appropriate, whether or not it would be admissible in a court.”

Those are pretty broad information-gathering powers. They come out of the statute. We’re not required by the statute to get the authority to examine anybody under oath from anywhere else.

It’s not the normal practice, necessarily, to issue summons and examine people under oath, partially because if we have people who are reluctant, we write them a letter to say: “Well, we could do that. We could summons you and compel you to appear, but really, we’d just like to invite you to come and see us.” That typically works, and if they’re advised by counsel, it pretty much always works, because at that point they realize that they’re required to come talk to us.

J. Yap: If I may. So the summons referred to in the act has the same standing as a summons from a court.

J. Chalke: There are provincial offenses set out in the Ombudsperson Act for hindering an Ombudsperson investigation.

S. Gibson: I’ve come to appreciate the significance of confidentiality in your work and the significance to the participants to allow them to have the liberty to freely share. I respect that.

A couple of quick questions. Do you have any concerns with regard to confidentiality over and above the health data? In other words, can you enumerate other instances of confidentiality that you feel should be protected? As you know, transparency is also something that this committee is aspiring to achieve, and it runs counter, somewhat, to the mandate which you have outlined earlier.

My second question, which is really related, is: can you see ways of some mechanisms that would be helpful to effect some moderation of that in order to achieve the best of both worlds — to protect your mandate, at the same time allowing this committee and the public in general to have a better understanding at the conclusion of this enterprise?

J. Chalke: I guess I would want to be clear with the committee that the nature of our investigations, by statute, is that we conduct that work in private. I guess, if you want to just step back a little bit and think about what it is that we do and the nature of our office, we’re kind of a hybrid sort of organization. We write reports about administrative justice, but we’re an investigative body. Our stock-in-trade is that we conduct investigations. We’re not an entity that is traditional adversarial justice, hearing both parties.

[ Page 1466 ]
I know the question came up this morning: could people be cross-examined when examined by the Ombudsperson? There’s no examination and cross-examination. You’re meeting with my staff. You’re being examined in a matter more like a police officer who is interviewing a witness. We have the opportunity, and we have the power, to put them under oath for the purpose of that. But it’s not a kind of proceeding where we’re going to…. It’s an investigation.

When I think of that, it’s really that kind of proceeding that we would be involved in. The work product from that investigation is our report. That’s what we create. But the process we are involved in, by its nature, is one, under the act, that the act provides is private.

M. Morris: Mr. Chalke, given that we’ve discussed B.C. Development Corporation v. Friedmann as one of the defining factors for the jurisdiction of the Ombudsperson’s office, do you have any specific concerns about the jurisdiction of the Ombudsperson’s office with respect to this matter, the matter that’s been referred to us by the Minister of Health?

M. Morris: Do you feel you’ve got the jurisdiction, based upon that Supreme Court of Canada decision, that this falls within your jurisdiction to investigate?

J. Chalke: That decision related to words in the act that define our jurisdiction with respect to the 1,600 investigative files that we deal with every day, and that comes from elsewhere in the act — in section 10(1) and 10(2).

In 10(3) our jurisdiction is really defined by the Legislative Assembly or one of its committees when they make a referral to us. However, it is then limited by 10(4) to say so long as it is within the Ombudsperson’s jurisdiction. So we’d have to think about how those two parts fit together.

What I can say is, first of all, it’s a bit premature for me to think about that, not knowing the precise terms of the referral that would be coming to us. However, from what’s in the public domain to the extent that this deals in an area that relates to public authorities, that’s what we do, and that would be well within our jurisdiction. So I would say that, certainly, work as it relates to public bodies is the kind of investigation that we do all the time.

J. Shin: I have a lot of questions. I guess what I’ll start with is something that’s a little bit more general.

I understand that this committee is called upon to refer the matter to your office. With that, there is an aspect where we can…. Even though you have the statutory right to make the report available or not…. With that said, I would imagine that we’ll be requiring the report in writing. With that will be a set of terms of reference.

In the letter from Mr. Fyfe, July 13, on page 8, there are a series of key factors for consideration by the committee. Some of those include the timeliness of the report that we expect this investigation to be concluded. It makes the reference that it could be concluded in a matter of months. There’s an indication from the Ministry of Health as far as the timeline is concerned as well. That’s just one example.

I’m just hoping to get clarification on to what extent this committee may be able to frame and define what those terms of reference can be without infringing on the independence of the investigation itself and as delivered through your office as well — right from what evidence or documents can be released for the committee for disclosure. Or is that strictly to be private as per your statutory right? Or can the committee call upon that evidence, documents and transcripts to be made available and disclosed to the committee or to the public? I’m just a little unclear as to what this committee can empower or call upon your office to do, within our terms of reference, that will go with the referral to your office for the investigation.

J. Chalke: As I understood your question, there were really two issues. One related to timeliness.

J. Chalke: Right. And the second was: is it open to the committee to specify that we shall include in our report specific documents? Is that what you’re asking?

J. Shin: Or any evidence or transcripts, documents that will be included in your writing, in the report as it pertains to the investigation.

J. Chalke: With respect to the first question, the duration of our investigation, I guess what I don’t know…. What I don’t know would fill a lot right now. For example, how many pages of written records are there in the possession of various public authorities right now? How many witnesses would we need to interview?

Without that and without knowing how readily we can obtain that, it would be premature for me to say: “Well, you know, this will take X period of time or Y period of time.”

J. Shin: So likewise, it will be premature for us to define a timeline in our terms of reference.

J. Chalke: With respect to whether your referral, by its terms, can specify the content of our report, I think
[ Page 1467 ]
I’d like to take that one under advisement. I think the act provides that I’m to report back in accordance with the referral. Obviously, if the referral was simply, “Go collect some documents and put them in a report and bring them back,” that would be the referral.

On the other hand, I think that to provide a referral that then says, for example, “All your examinations that are conducted, by statute, in private are then required to be made public to us,” and report the actual transcripts.… I would be concerned that it would interfere with our ability to conduct our investigation efficiently and appropriately and that it may be inconsistent with the provision in the act that requires that we do that investigation in private. So I think I’d like to think a little bit more about that.

G. Holman: Just to go back to section 19. The question was asked about the powers of the Ombudsperson to summon, which are very broad and, as I understand it, essentially equivalent to a public inquiry. While you can essentially force the horse to come to the trough, you can’t force the horse to drink. That’s your fundamental concern, that there may be witnesses that you can compel to come and have a discussion with you, but they could decline — if this is your concern with section 19. I just want to make sure I understand that.

You do have the power to summon, but unless that section is amended, you don’t have the power to require testimony if they have legal advice that suggests: “You’re going to get yourself in trouble here unless you constrain yourself.” Do I have that right?

J. Chalke: The issue in 19(2) is limited to the circumstance where someone is bound by a confidentiality provision in another enactment. If that other enactment provides that to disclose would be a breach of that obligation of confidentiality or non-disclosure, then they’re entitled to not answer our questions — other than a breach of a common-law rule, which we are entitled to obtain information, or if someone’s only other enactment bar is their public service oath, which also does not act as a bar to us collecting the information.

G. Holman: Just to be clear, while some of the other recommendations you’ve made to this committee about “If I’m going to do this, I would suggest there be unanimous support. I would suggest that you at least consider the views of researchers….” Section 19 — your advice seems to be a little more explicit there. While you’re not characterizing it as such, it seems more of a bottom line to me than some of the other recommendations you’ve made to the committee. That one in particular — you view it as being particularly important to have section 19 amended.

J. Chalke: I think they’re all important. I’ve thought about every one of them, and I think they’re all very important. Section 19(2), though, is important. If it bars us from collecting the information, it goes to the earlier question about timelines. If we end up in the courts for six months or a year trying to sort out whether or not a particular witness can answer a question, then we’re not going to achieve a reasonably efficient turnaround in reporting back.

G. Holman: That scenario that you’ve just described would not apply in the case of a public inquiry. You wouldn’t get into that debate because the commissioner would have the authority to compel testimony in that scenario you’ve just described.

Just around budget and timing. Of course you can’t predict what the budget is, or the timing. But is there anything that would suggest to you that to properly investigate and report on this matter…? Why would it cost any less or take any less time for you to properly investigate the matter as opposed to a public inquiry commissioner? Is there anything different about the process that you would undertake that would mean intuitively, “Well, that’s going to cost less; that’s going to take less time” versus a public inquiry?

J. Chalke: Well, I think, to be fair, there are logistics issues that wouldn’t necessarily apply in a referral to us that would apply in respect to a public inquiry, in terms of getting something up and running. We’re there. In the event a referral is made, I guess my view is the first thing we would do is return back to this committee with an assessment of budget. So in terms of time and ability to get things going, I think that that is probably something where…. That’s as opposed to a commission of inquiry, where it’s a brand-new thing and they have to do the infrastructure work to get set up in the first place.

Having said that, there are definitely things in common that relate to the carrying out of our investigation — the actual review of documents, for example — that would parallel the work that an inquiry would have to face as well. So there are some similarities. I think overall it’s not likely to cost as much as a public inquiry, but beyond that I think I’m best advised to work on the budget in the event you make a referral to me and come back and report back to you.

G. Holman: On that matter, it seemed clear, based on the discussion with Mr. Fyfe previously, that you would come to this committee for our recommendation around a budget, and then that ultimately would have to be approved by government; whereas, my understanding of what Mr. Fyfe said is that in the case of a public inquiry that’s more or less an independent matter. It will cost what it will cost, kind of thing. Is that your understanding?

[ Page 1468 ]
J. Chalke: Certainly there are challenges in the funding structure for public inquiries. I am aware of that. But I think as Mr. Reimer indicated earlier this morning, it’s a statutory appropriation under the Public Inquiry Act. So that’s correct.

G. Holman: In terms of the terms of reference, to follow up on Jane’s question there, what role do…? In your view, does the committee work with you to establish a terms of reference? How does that happen? Do you take a first crack at it and you come to the committee for review and input? How would that work, in your view?

J. Chalke: I think of this in two stages. I think in the event that you are inclined, in principle, to refer the matter to our office, I would assume at that point that the Clerk and the Chair and the Deputy Chair would probably want some opportunity to think about how one turned that approval-in-principle into some more precise terms.

I, or my legal counsel, would be at your committee’s disposal to assist with sort of the precise drafting of that. So I guess I would leave that to this committee to figure out how to formulate, and whatever assistance we can provide in doing that, we’d be happy to offer that.

S. Hamilton (Chair): With respect, Gary. We do have a long list, and we do have to be mindful of the time.

If the committee makes recommendations or provides input around terms of reference, as long as we’re not telling you to do something that’s outside your legal purview…. We could say, for example — and it’s within your purview, so there’s no debate there: “Well, we feel really strongly you should be looking at this.” And you say: “Well, I feel really strongly that that’s not particularly important.” Who makes the call there: you or the committee?

J. Chalke: You get the last word, ultimately. The only thing I would point out is that section 10(4) of the act that governs my office provides that I must: “investigate the matter referred to under subsection (3), so far as it is within the Ombudsperson’s jurisdiction.”

To the extent that I’m not happy with part of the referral, but it’s within my jurisdiction, I’m compelled to conduct an investigation. But to the extent that it’s beyond my jurisdiction, then that becomes a sticking point. That’s why I think it would be useful for us to offer whatever assistance we can when we get to that point.

My view of how we can best help is probably to do so once you’re of the view that a referral to our office would be appropriate and not before. As I said, I’ve been very conscious that I’m not trying to solicit this work. I’m really just trying to provide whatever assistance I can to the committee.

G. Heyman: I’m conscious of the time, but I have four quick questions. I’ll be happy with short answers, but I think it’s important to put them on the record.

The first one is just a supplemental to Carole James’s question regarding your statement that you would wish to receive from us the ability not to duplicate work being done by other independent officers of the Legislature. You gave examples. If we give terms of reference with, say, six points and the AG is looking at five and six, that you not have to look at five and six.

My question would be: in exercising your discretion on that, would you have a conversation with, say, the Auditor General or another officer to determine that the scope of their investigation was as broad as yours might be on that term of reference and either collaborate on that particular part of the inquiry or that you might do a piece of point 5 and 6 that you felt wasn’t being addressed by the Auditor General for her own reasons?

G. Heyman: Okay. The second question. Your letter to us referenced a memorandum of understanding with the Justice Ministry for the general purpose of accessing legal advice that had been given. Mr. Fyfe made a statement that I thought wasn’t exactly the same, that the advice cannot be attained without solicitor-client privilege being waived. Am I understanding this correctly — that, in your view, the MOU that you have does cover any concerns you would have about accessing that information or that there could be a caveat on that?

J. Chalke: No, I don’t have any such concerns. I would let the Deputy Attorney General speak for himself, but I thought what he was saying was that information provided under than the MOU expressly does not constitute a waiver of solicitor-client privilege. I thought that’s the point he was trying to make, but you’re free to pursue that with him.

[ Page 1469 ]
My third question. The Attorney General, in her letter to the Chair and Deputy Chair of the committee, with respect to confidentiality clauses said: “In any event, the majority of agreements containing confidentiality clauses would likely refer to a time period subsequent to the matters that the Ombudsperson is being asked to investigate.”

It seems to me to presume, in advance of any terms of reference from the committee or any decision by you about the scope of a time period in which you might want to investigate or that some questions might lead you to further investigate. We might simply not want to assume that there’s a finite time period where you’re being asked to investigate. I just want to hear your views on that — if you basically believe that time periods need to be wide open to encompass any trail that you might uncover in the course of your inquiry.

J. Chalke: When lawyers cross-examine witnesses and when they get a good answer, they take the answer they get. The statement you’re referring to is in a box in the Attorney General’s reply. It starts with: “Government is prepared to provide the release as suggested by the Ombudsperson.” That was what I was seeking, and I got what I wanted.

The other two things I think are, frankly, irrelevant for my purposes. I take your point. I didn’t see an end date in the Minister of Health’s letter to you. Regardless, what I was seeking was something that we’ve obtained.

G. Heyman: Finally, my question is just a follow-up to your initial presentation in which you talked about the different concerns you’d had — which had been checked off and which hadn’t been. You referred to, in your view, the necessity of an amendment to section 19 of your act, specifically section 19(2).

I think it’s important for the committee to understand. If such an amendment was not made, if government did not agree to make such an amendment, how would you then proceed if you were to receive a referral to do an inquiry in any event, given all the limitations that you’ve told us this would place on your inquiry, and how might that end up being reflected in a report?

Well, we would do our statutory duty subject to the provisions of the act as they stand right now. In the event that we had someone who we were interviewing decline to answer or refuse to produce a document on the basis that that was barred by that provision, we would have to assess how probative we thought what we were pursuing was.

In other words, is it a minor issue — that what we think we have, we don’t? Now, of course, we always have a problem in that circumstance, which is that you don’t know what you don’t know. But the circumstances of what we may be pursuing at that point — we will know what it is we’re asking, and we’ll know how important an issue that is.

If it’s a key, central issue to the very heart of the referral that you have sent us, then that would be a significant issue. It’s probably premature for me to say what the impact is of not being able to obtain the information that we’d be seeking until we encounter it. What is the process that might then occur? It undoubtedly will involve delay. Delay isn’t something that I would certainly want to see happen.

G. Heyman: Just to finalize that point, which was my last point. In your presentation to us you spent quite some time on this point. In your letter you spent some time on this point. You also referenced the great public interest in this issue and the public’s desire to get to the bottom of it and to have faith and confidence in the process. I don’t want to put words in your mouth, but it sounds like what you’re saying is that without an amendment to section 19, specifically 19(2), this might well impinge on public confidence in the inquiry — giving them the answers and the information that they’ve sought from an inquiry in the first place.

J. Chalke: It could. I mean, really all I’m doing at this point in time is thinking about what might happen and trying to build the infrastructure so that we have a robust, efficient and prompt investigation. It’s reasonably foreseeable to me that we’re going to have a problem in this area, and I’d like to avoid it if we can.

C. James (Deputy Chair): This is just following up on this issue. Again, it’s a what-if — I recognize that — in this case as well.

It’s just a question I have around the confidentiality issue. This investigation occurs in private, as you said, unless you make the judgment if the referral went forward.

If you were in a circumstance where an individual refused to testify or documents were refused to be given by individuals or government or anybody else during the process, would your confidentiality allow you to come forward — or as part of your reporting — to say: “My investigation was hampered because of…”? Would the privacy or confidentiality prevent you from doing that if you were in that situation?

J. Chalke: I’m tempted to say it’s speculative, but I won’t. I think that it would be not unreasonable for us to report that we were unable to obtain certain information. And I think it would be important, in terms of public confidence, for the public to have some appreciation of how important we thought that inability was.

J. Yap: Let’s be optimistic. We have a referral. You do the investigation, and you’re at the report stage. How much control do you have on the final report?

J. Chalke: If we’re charged with the responsibility of conducting this investigation, then we would be responsible for whatever report we deliver.

J. Yap: Where I’m going with this is that my understanding is that with the public inquiry approach, executive council has the ability to deem parts of reports as not in the public interest to be made public, and redactions can occur. How does that work with the Ombudsperson’s report?

J. Yap: So in that sense, to the extent that the investigation is robust and complete and the report is issued, it will reflect the findings and recommendations of the Ombudsperson without any ability of any party to change.

J. Chalke: In terms of our report, subsection 10(4) requires us to report back in the manner that we see fit, so we’ll have to do some thinking about what that looks like. But certainly, if your question is, “Does the executive council, or anybody else” — in government, for example — “have the opportunity to go through the report and excise portions?” the answer is no.

S. Hamilton (Chair): Mr. Chalke, Mr. Paradiso, thank you very much for attending before this committee. I’m not even going to put the committee in recess because I would like to invite Mr. Fyfe back up to address some of the issues that were brought up as a result of your presentation. Once again, thank you very much. Appreciate it. Of course, we’ll invite you, Mr. Chalke, to stay behind, if you so wish, by all means.

Gentlemen, thank you for being here again. Appreciate it, Mr. Fyfe. I’ll go to questions.

D. Ashton: Gentlemen, thank you for coming back. You’ve heard that a lot of the context of the conversation that took place in interviewing Mr. Chalke or asking questions of Mr. Chalke revolved around 19(2). It seems to be, as what has been touched on, that this committee has worked well together. Mr. Chalke has explained how he would like to see a recommendation come to him for his engagement in this. How do we address 19(2)?

R. Fyfe: I think that 19(2)…. Even the Ombudsperson acknowledges he thinks it’s reasonably foreseeable, but it’s not something that we’ve identified as a specific problem at this point. He mentions federal legislation. We have not looked at federal legislation at all to see whether there are any issues there.

A couple of things. I think if this deliberation is continuing, one is to think about what would happen if there was no statutory provision — in other words, if there was no 19(2). There would still be provisions in the other statutes preventing access. So unless there’s something that provides specifically, that overrides those statutes, there would be no way of dealing with it.

One question that could be asked of Mr. Chalke is whether in the course of 35 years 19(2) has ever actually arisen as an obstacle to an investigation. I don’t know that. Certainly, from the reports that I’ve read, I have not seen it come up as an issue that has prevented….

I’ve seen one case — it was the horse-racing case — in which a certificate by the Attorney General was used to prevent an Ombudsperson’s investigation. And certainly, litigation has been used a number of times. But I haven’t seen that.

At the same time, I think Mr. Chalke is correct that other than language similar to what is in other statutes that overrides the statutory prohibitions or the statutory confidentiality provisions in other legislation…. If your question is, “What would you do about it?” that’s really the only thing you can do about it.

I think what we are saying is that we don’t think it’s going to be a problem, based on what we’ve looked at. We’ve looked at provincial statutes, as I mentioned earlier, and seen only the Pharmaceutical Services Act as a provincial statute.

D. Ashton: Okay. I’ll just relinquish for a minute…. I do have a follow-up question, but I need to think about it for half a second.

S. Hamilton (Chair): You know what, Mr. Fyfe? I was remiss. I should actually, probably, have suggested that you make some comments based on Mr. Chalke’s comments. That way, a lot of questions may wind up being answered.

R. Fyfe: Just very quickly, I would invite Neil to respond on one of the public inquiry questions, if I could,
[ Page 1471 ]
and then John Tuck can talk about the freedom of information briefly.

N. Reimer: I just wanted to touch briefly…. It follows from the discussion around non-disclosure provisions. There is, of course, section 19(2) in the Ombudsperson Act, but I would like to make reference to the specific section of the Public Inquiry Act because there was some discussion about whether that provision is parallel or not. I think there was a suggestion that it is not as restrictive as the Ombudsperson Act is.

I’d like, first of all, to just read the section. It’s “Power to accept information.” This is for a public inquiry commissioner. It says: “A commission may receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in any court.” Subsection (3), and this is the operative one, says: “Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to which or purposes for which any oral testimony, records or things may be admitted or used in evidence.”

I would say that it is our view that that is a section that is pretty broad and that it does not operate significantly differently from the prohibition or the limitation that exists in section 19(2) of the Ombudsperson Act. In the event of the scenario that the Ombudsperson described, where it’s a witness who may be compelled to testify and is concerned about a non-disclosure provision, I think — I’m quite certain, in fact — they would be relying on section 14(3) in the same way that they would rely on section 19(2) of the Ombudsperson Act.

J. Tuck: Before I talk about FOIPPA briefly, I want to point out again that 19(2) refers to situations where someone is bound by an enactment to mean confidentiality. There are a number of provisions in statutes which say that information must be kept confidential, but there are often exceptions to that requirement of confidentiality. A number of provisions will say that one of those exceptions is where another enactment allows disclosure.

The point I wanted to make about FOIPPA, the Freedom of Information and Protection of Privacy Act, is if you look at the combined operation of sections 33 and 33.1, what it says is that a public body may disclose personal information where it’s authorized or required under an enactment to do so. At that point, we would refer to section 15 of the Ombudsperson statute, which allows for the collection of information by the Ombudsperson. That’s why, in our view, FOIPPA won’t be an obstacle to obtaining information, personal information, for the purposes of the Ombudsperson investigation, if that occurs.

R. Fyfe: If I can just speak very, very quickly to one of Mr. Heyman’s questions, regarding the Law Society. Just very quickly to clarify that the Law Society does publish “Discipline digest”, which I think Jay referred to, and that their discipline is not limited to legality. There is a code of professional conduct that goes well beyond, in terms of ethical conduct. Just to clarify that it’s not simply limited to legality.

D. Ashton: Mr. Fyfe, what I’ve just heard from yourself and the other two gentlemen is — in layperson’s terms, please — that you feel that section 19(2), which Mr. Chalke has some concerns about…. Those concerns can be addressed by the various documentation and the various articles that you have mentioned. So we can address that so that that information can be made to the Ombudsperson for his report.

R. Fyfe: I would say I think that we think that there is either no problem or, at worst, a very small problem and that if that’s the case, the Ombudsperson, as Jay indicated, would be able to reflect that in his report: “I wasn’t able to get this information. Here’s why. It’s important; it’s not important” — whatever the situation is. Based on, as I say, the review that we’ve done, we don’t anticipate that it’s going to be a problem at all.

Is it a threshold issue? I think what we’re saying is we don’t think it is. I think the Ombudsperson is saying it is, because he doesn’t want to get into the investigation and then find that it’s a problem. We’re saying that if it is a problem, it can be dealt with in the report, and then consideration can be given to what to do about it later.

D. Ashton: I just want to thank yourselves and the Ombudsman’s office. I know this has been happening fast and furious, to bring all this information forward, especially to us at the committee, in such a quick and timely manner. Thank you very much.

C. James (Deputy Chair): Just to follow up on that, then, I recognize that the view from the AG is that it can be taken care of, or it can come forward as a problem and then be addressed later. But I guess, given that…. It certainly doesn’t seem to me the most efficient way of dealing with it.

R. Fyfe: As you can appreciate, this has come up very recently. Typically, these things would involve policy considerations and so on. So while we’re aware of it, we haven’t formally taken a look at it. We’ve looked at it in the context of the letter.
[ Page 1472 ]

I would just point out that even if section 19(2) wasn’t there because statutory confidentiality provisions are in other legislation, one would expect the same issue would apply, whether it was an ombudsperson investigation or a public inquiry. The same issue is the issue that will arise regardless. I think it’s important for the committee to recognize that.

G. Heyman: We clearly seem to have a difference of opinion here between yourself and the Ombudsperson. The Ombudsperson has pointed out that a similar clause to 19(2) does not exist in more recently written statutes that govern other independent officers of the Legislature.

He also pointed out that the outcome of section 19(2), as he pursues his inquiries, could be significantly lengthy and costly litigation. You yourself know, because your own ministry challenged the right of the commissioner in the Frank Paul inquiry to obtain certain documents from your ministry. That resulted in quite lengthy litigation, I believe. So clearly, this concern of the Ombudsperson is well placed.

Given that the 19(2) equivalent doesn’t exist in the statutes governing other independent officers of the Legislature, what reason could there be for government not to simply make the Ombudsperson Act consistent with the acts governing other independent officers of the Legislature?

R. Fyfe: I’m not sure that I actually have an answer for that. The decisions on legislation are made over time. This is the act. This is the request.

I think the question that came earlier was: has our office considered it? The answer was, effectively, that we haven’t had time to consider it. It may be considered, and it may be a decision, for example, that in other statutes it’s quite appropriate. In the case of, for example, the Representative for Children and Youth, there may be information that the representative needs to obtain that is very significant from the perspective of protecting children that may not be relevant in the case of a review of fairness.

Back to the question of in 35 years, has it ever been an issue previously, I don’t know the answer to that. That would be a relevant consideration for government to consider in terms of whether or not to make the amendment.

I think the answer is that I don’t know at this point. It’s something that’s come up recently. We looked at it. We did not see it as an issue. Clearly, as you’ve said, there’s maybe a disagreement between the Ombudsperson’s office and ourselves as to how much of an issue it is. But at this point, that’s probably all I can say.

N. Reimer: If I could just elaborate slightly on Richard’s comments, when we talk, of course, about a legislative amendment, that applies to all Ombudsperson investigations. It becomes a broader policy question than simply looking at this individual case.

In the normal course of things, if we’re looking at a question like this of amending legislation to that extent, we would look at the impact not simply in the case of this particular potential referral but how it would operate over time across the hundreds of authorities and hundreds of statutes that the Ombudsperson may investigate.

That would inform part of any review or look at a statute. That’s another reason why it’s not, from the perspective of government, necessarily a simple and straightforward question.

G. Heyman: I confess to some confusion now. On the one hand, you seem to be saying that whether or not 19(2) exists, the prohibition would be effectively there in any event. You then went on to say that there may be reasons for the prohibition not to exist — for instance, for the children and youth commissioner.

Mr. Reimer indicated that there might be follow-on implications for other investigations other than this one. It clearly does make a difference, in your opinion, whether 19(2) exists or not, in terms of the powers that exist for either the Ombudsperson or other officers of the Legislature.

N. Reimer: I think there’s a difference whether it exists or not or whether an express override exists. If I understood Richard correctly, if 19(2) were to simply not exist but there was no override provision, then all of the other non-disclosure provisions in other enactments would still apply to the Ombudsperson. It would, in fact, take a positive amendment, such as the Ombudsperson suggested, to remove any possible impediment flowing from those other enactments. That’s that distinction there.

Seeing none, any closing comment, Mr. Fyfe? Do you have anything else you’d like to add?

R. Fyfe: I would just like to recognize that as the letter from the Ombudsperson indicated, this is the first time that a referral of this nature has come. I certainly appreciate the challenge that has been presented to the committee. I hope that the information we’ve been able to provide, both us and the Ombudsperson, assists in those deliberations. I would certainly say that we remain open to return to the committee, if required, to assist in any way.

Before we conclude the discussions, Mr. Chalke, I can invite you back up. If you have any closing comments you’d like to make, by all means, now’s the time.

J. Chalke: Just very briefly, to address the point made by Mr. Reimer that an amendment that repealed section 19(2) and replaced it with a positive obligation would basically cover all our investigations, that’s true. That’s why I have posited an alternative, given that this is all coming up relatively quickly, and that would be to restrict the amendment to a referral made under 10(3).

This is the first time it’s happened in 35 years, so rather than 1,600 investigation files a year, it would be one in every 35 years. It would require not only to disapply section 19(2) in the event of a referral under 10(3), but it would require a positive obligation for people to disclose. So it’s more than adding one number to section 10. It also would involve at least one paragraph that would create a positive obligation to supply information that we require.

It wouldn’t necessarily, unless government was disposed…. We’d be happy to follow up with government on a longer term to deal with that issue as it relates to other investigations. As I said, in six other provinces it already doesn’t apply to those regular investigation files. Anyway, we could deal with that on the longer term.

Certainly as it relates to a referral, as long as it related to that in terms of the short run, that would be fine with me.

D. Ashton: Just real quickly. Sir, again, thank you. I did include you, in coming forward so quickly with everything that you brought forward.

Just a question. You’ve been a solicitor for X amount of years — Queen’s Counsel, seen a lot, I’m assuming a trial lawyer.

J. Chalke: I think it’s fair to say that people speak more freely in private. Certainly, that’s the advice I’ve received from my staff.

MLA Morris, of course, a former career as a police officer…. I’m sure he’d have some views on that question as well.

Really, what I’m bound by is the statute. The statute requires that we conduct our investigations privately, and that’s what we set out to do.

S. Hamilton (Chair): Once again, Mr. Chalke, thank you so much for coming forward.

Of course, Mr. Fyfe and your staff, we really do appreciate the fulsome discussion and the opportunity to ask these questions. So thank you very much again. I appreciate that.

Carole, can I take the opportunity, maybe, to meet with you in the very near future? We can discuss how we’re going to go forward.

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Chair:	Wm. Scott Hamilton (Delta North BC Liberal)
Deputy Chair:	Carole James (Victoria–Beacon Hill NDP)
Members:	Dan Ashton (Penticton BC Liberal)
	Eric Foster (Vernon-Monashee BC Liberal)
	Simon Gibson (Abbotsford-Mission BC Liberal)
	George Heyman (Vancouver-Fairview NDP)
	Gary Holman (Saanich North and the Islands NDP)
	Mike Morris (Prince George–Mackenzie BC Liberal)
	Jane Jae Kyung Shin (Burnaby-Lougheed NDP)
	John Yap (Richmond-Steveston BC Liberal)
Clerk:	Kate Ryan-Lloyd

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