The committee met at 11:02 a.m.

[B. D’Eith in the chair.]

B. D’Eith (Chair): We are dealing with the annual review of statutory offices of British Columbia: three-year rolling service plans, annual reports and budgetary estimates for fiscal 2018-2019. First up we have the Office of the Merit Commissioner.

Fiona, the floor is yours.

Review of Statutory Officers

OFFICE OF THE MERIT COMMISSIONER

F. Spencer: Thank you, Mr. Chair, Deputy Chair and Members. I’ll be brief this morning.

Thank you for the opportunity to appear before you today and speak to you about the work of the Office of the Merit Commissioner. I’m accompanied by Mr. Dave Van Swieten, who I know you’ve seen twice before already. He’s our executive director of corporate services, and he’ll be sticking around for the next presentation as well.

This morning I’d like to just give you some information on my mandate, the work that we do at the Office of the Merit Commissioner and the results of that work. Then I’ll speak briefly to how the funds allocated to the office last fiscal year were used, address our service plan for the coming years and the budget request I have for funds going forward.

First, I should mention that I’m a part-time appointee and am fortunate to have the support of a small and committed permanent staff in my office here in Victoria. My office consists of four full-time public servants and two part-time employees who job-share their responsibilities of one position. We also have the assistance of five auditors who work for us on contract on an as-and-when-required basis, and we consult regularly with an external audit advisory committee.

As Merit Commissioner, I have two elements to my mandate as laid out in the Public Service Act. First, I oversee appointments to and from within the B.C. Public Service. This is largely done through an audit of a sample of appointments made each year which are selected at random. The sample selected is such that we are able to extrapolate results from these audits to the general population and can therefore speak with confidence to the overall health of merit-based hiring in the public service.

[11:05 a.m.]

Second, I am responsible for undertaking final-level reviews of specific staffing decisions at the request of unsuccessful employee candidates to bargaining unit positions. This we do through an investigation of the complaint and the appointment process in question and make a determination as to whether the proposed appointment is in compliance with the provisions of the Public Service Act. Where it is found to be compliant, I dismiss the review. Where it is not found compliant, I direct a reconsideration of the appointment decision. My decision with respect to staffing reviews is final and binding.

The annual report that you have before you, which was tabled with the Speaker in May, outlines work completed in the 2016-17 fiscal year, including the audit of appointments made in 2015-16 and staffing reviews conducted in 2016-17. In that report, I think you’ll find a good summary of our work, but I would like to highlight some aspects.

With respect to our audit activity, in 2015-16, we examined 321 appointments across all organizations. I did report on these results when I appeared before the committee last year but would like to note a number of things. First, that for the first time since independent audit activity began, we found that the number of appointments which had problems or issues related to merit in the hiring process exceeded the number which did not.

As a significant proportion of the issues that we identified did not have a negative impact on the outcome of the selection process, these results did not cause serious concern for the overall health of merit-based hiring. What they did signal, however, was where it was critical to focus on training, attention to detail and improved practice in order to ensure that more significant issues do not arise in the future and to ensure merit-based hiring is protected.

The second point to note is that we found that a statistically small number of appointments made were found not to be merit-based.

Finally, with respect to the qualifications of individuals appointed to positions, in all but two cases, we found that they met the qualifications specified as required at the time of appointment.

The B.C. Public Service Agency, the organization responsible for hiring policy and providing advice and training on practice, responded favourably to the recommendations in our report and undertook to address the shortcomings.

The audit of appointments for 2016-17 is complete, the analysis of results has been conducted, and the report is being finalized. It’s scheduled to be tabled with the Speaker before the end of the week, after which it will be public and posted on our website. Until then, I cannot be open with respect to the overall results. I could mention, however, that we audited 257 appointments in four samples and provided individual results to deputy ministers and organization heads in March and September.

As mentioned, our other main line of business is the conduct at the final level of review of staffing decisions at the request of unsuccessful employee applicants. We have found no way of predicting or anticipating the number of requests that may be received in a year, and there have been varying numbers during my tenure as Merit Commissioner — from seven to 21 in a year. When received, we give staffing review requests some priority, as appointment decisions are generally held in abeyance until this final step in the recourse process is complete.

In 2016-17, I received 14 requests for review, three of which were ineligible. In ten of the reviews, management’s decision was supported, and I dismissed the review. In one case where I found the appointment decision was not merit-based, I directed the deputy minister to reconsider the matter.

I just want to mention that in this current fiscal year, with four months still remaining, we have already received 22 requests for review. My staff pay significant attention to ensuring that a thorough investigation of each case is conducted on my behalf, and I’m always satisfied that I have all the evidence necessary to consider whatever matter is presented and to make a determination. But given my small office, this level of activity results in some operational pressure and affects our ability to complete our audit activity in as timely a fashion as we believe is optimal.

Generally, I would say that merit-based hiring in the public service is in good health. While good hiring practice is a responsibility of hiring managers, deputy ministers and the B.C. Public Service Agency, the Office of the Merit Commissioner plays an important role in maintaining the integrity of the system by focusing attention on aspects of the process which are problematic or which could become significant issues if not addressed through policy or practice change. Also, we are told that the existence of the office and the possibility of audit and review leads to some added diligence in ensuring that merit is respected in hiring and decisions are accurately documented.

[11:10 a.m.]

Moving to my budget submission and service plan before responding to any questions you might have, I would point out that last year, although we were granted access to $25,000 in contingency funding, it was unnecessary to use those funds. We were actually able to return to the consolidated revenue fund a total of $31,000, and the office ended the fiscal year within $6,000, or less than 1 percent of our initial budget allocation. The increase to current funding which we received last year has alleviated the need to request access to contingency funding in the current fiscal year.

Our service plan outlines our operational plans for the coming three years. You’ll see that we remain focused on our two main lines of business: conducting audits and reviews. When operational requirements permit, we also plan to undertake some special audits of specific appointment types, which allow us to make focused observations on particular areas of public service hiring.

I also think it’s valuable to conduct some studies of frequent or new practices being introduced, to better understand their possible implications for merit-based hiring. We have engaged in this sort of study in the past, and our findings have resulted in amendments to hiring practice which, at the time, was disadvantaging appointments and promotion prospects of applicants to positions in the public service.

The budget I have put forward, for all intents and purposes, is a stand-pat budget, with some slight increases to address non-discretionary increases in public service salaries and benefits costs, as well as costs of building occupancy. The proposed increase for 2018-19 is $16,000, or 1.4 percent, and a minor increase of $4,000 for 2020-21.

I think I’ll just stop there and thank you for your consideration and support of this important work. I’d be pleased to respond to any questions, should you have them.

B. D’Eith (Chair): Great. Thank you very much.

Are there any questions in regards to the budget?

M. Dean: Thank you for your presentation and all the information that you’ve provided for us. I have a couple of questions, if that’s okay, Chair?

B. D’Eith (Chair): Yes, of course. Go ahead.

M. Dean: One, I’m interested in your occupancy costs. It says occupancy costs are between $142,000 and $152,000 a year, and you have 5.5 FTEs. That’s about $27,000 per person, per year. Now, coming from, say, the non-profit sector in greater Victoria, for a one-person counselling office, I would budget for about $3,000 a year.

Even if I added on admin, filing, storage, reception, I might double that, so that would be, say, $6,000 a year, which is still a huge difference. I understand it’s shared services, but I’m just wondering if it’s just that it’s really expensive space. Or is it special space? Or do you have extra space? I feel like there’s a real high premium for the space that seems to be occupied.

F. Spencer: Okay. I’m going to ask Dave to respond to some of that detail. But I just want to say that we don’t have excess space in my office. In fact, what we have to do, because we do have people who are job-sharing a job, is have them sitting at sort of the common table in the reception area to do their work when everybody is in the office. So I don’t have offices sitting empty or extra space available.

With respect to the cost per square foot or occupancy, I think maybe….

Perhaps, Dave, can you answer some of those detailed questions?

D. Van Swieten: Absolutely. The thing to keep in mind with the shared services arrangement we have is that Fiona also contributes to common space within the building, not just FTE space. So we have a common reception area that we share. We have common public washrooms that we share. And there are series of boardrooms that she also pays for.

In addition to that, as part of the corporate shared services costs, she pays for a portion of our square footage for corporate shared services. So it’s not just the 5.5 FTEs that she’s covering the space for. Does that help?

M. Dean: It partially answers it. Where I come from we also paid for common space and reception for ten or nine different agencies and shared services and shared reception, so that kind of partially answers it.

My second question is around the salaries. In 2016, your salaries were $636,000, but your actual was $615,000, but then you asked for a budget of $655,000. So it was more than what your actual was and more than what had been budgeted the year before. Why was it that you were needing to budget so much more? Your salaries, you know, have to continually rise, even though you weren’t spending them.

F. Spencer: Right. Well, some of the reasons for not spending included retirement. There was a vacancy, so there was a hiring lag. We did have a vacancy. The other was that we had some — without getting into too much detail, given it’s a small office — folks off on leave that didn’t require paying full salary.

[11:15 a.m.]

It was budgeted as if we were at full capacity, but for a variety of reasons, we weren’t. That’s why there was that lag. Then the budget request for the subsequent year would have been to make sure that we could cover the salaries of people, assuming that we were at full capacity and then taking into account some of, perhaps, statutory salary increases.

J. Brar: I just want to understand about the Merit Commissioner. So what set of principles do you apply when you conduct auditing appointments?

F. Spencer: When we collect the appointments to be audited?

J. Brar: No, when you conduct.

F. Spencer: Oh, when we conduct the audits. Okay.

J. Brar: What set of principles you apply.

F. Spencer: Okay, so what we look at. First of all, it’s laid out in the act what the factors of merit are that are to be considered in an appointment or in a merit-based process. We take those into account, first of all, and those are specified.

First of all, it says that when appointment is going to be based on merit, it should be, with respect to certain types of positions, the result of a competitive process. That competitive process should assess a number of factors that are laid out in the act, like education, experience, knowledge, skills, those sorts of things — and years of service. So that’s one thing that we do look at.

The other thing is that we make sure that the process…. First of all, we have to look at the overall approach that’s taken so that we make sure that the process is conducted fairly, transparently and that the elements of merit, as outlined in the act, are taken into account. The other thing we look at is whether or not the individual who was appointed as a result of that process actually had the qualifications that were specified, as required, before the process took place.

J. Brar: Do you make any recommendations at the end of the year to the government if there’s any kind of gaps you find in the system?

F. Spencer: Yes, after we’ve completed our merit performance audit, we prepare an overall report. We do have recommendations in that report.

The report goes to the head of the B.C. Public Service Agency for management comment and review prior to its publication. Those recommendations in that report are generally directed to the people who are responsible for hiring in the public service. For the most part, that’s the deputy ministers, who then delegate that responsibility to hiring managers.

Also, some of those recommendations are ones that the Public Service Agency might take on board because they relate to policy or practice, and they can see where they need to make those changes.

Then that report is tabled with the Speaker, and it is something I would talk to you about in terms of the recommendations. But they’re generally directed at deputy ministers, hiring managers and the B.C. Public Service Agency.

J. Brar: What I think is that the public service should be reflective of the population, right? That’s one of the key principles. Having said that, whether it’s a gender balance or ethnic balance or, you know, other minority balance or First Nations and all that…. At this point in time, to the best of my knowledge, I know that the ethnic minority in the public service in B.C. is around 7 percent, when in the private sector, it’s almost 22 percent, maybe 23 percent.

I would like to see as to what your response is to that. Is there anything you will recommend to fix it?

F. Spencer: Well, diversity in the workforce is a responsibility that falls under the B.C. Public Service Agency. It’s not within my mandate to attempt to address diversity issues in the workforce. I understand that the Public Service Agency has indicated that they are considering measures to address diversity issues in the workforce and to increase representations.

Where I would come into play in this is where we’re looking at appointments and where there’s been some preference given to individuals to ensure that there’s an increase in diversity — that any of those measures that have been put in place are, in fact, in accordance with the Public Service Act and that the appointments that are being made are merit-based appointments within that framework.

[11:20 a.m.]

M. Dean: You talk about the Misfire report and recommendations. I’m wondering: because some of the recommendations haven’t been addressed, is that something that’s going to be in your work plan? Are you doing any extra work, and are you going to be able to absorb any extra work to address that?

F. Spencer: Yes, there was one recommendation in Misfire, as you know. I think it was actually No. 27, which pertained to adding, to the Merit Commissioner’s responsibility, some oversight of terminations. At this point, I have not been officially notified as to how that recommendation will be implemented.

Although I make mention of it in my service plan, I haven’t built anything into the budget in that respect. If there should be a decision prior to my appearance before this committee next year that does impact the office financially, then I would come back to the committee if there was a need for any contingency funding.

M. Dean: You don’t know yet what the scope of that may be, so you don’t know whether you’ll be able to incorporate it into your existing workload. Is that what you’re saying?

F. Spencer: No, I haven’t received any official notification of how that’s going to proceed.

M. Dean: So that potentially could be extra contingency that would come back here.

F. Spencer: Given where we are in the fiscal year, the implications may not be great for this fiscal year.

B. D’Eith (Chair): Dave, could I ask a quick question? Just picking up on what Mitzi was saying about the actual lease and the shared space, how long is the merit commission’s obligation? Is that tied to the head lease? Is that a specific lease? How long is that?

D. Van Swieten: The lease for all four offices that are housed there. We are in year 8 of a 15-year lease.

M. Dean: Are you locked in to your rate increases? Your renewal — is it negotiated each year?

D. Van Swieten: They’re negotiated in advance. In years 5 and 10, there were increases identified. We’ve incorporated that into the presentations that we’ve been coming here with.

B. D’Eith (Chair): Okay. I wanted to know about that.

A Voice: Good question.

D. Ashton (Deputy Chair): Fiona and Dave, thank you very much for coming in today. It’s greatly appreciated. It’s always nice to see you, and Dave, it’s always to good to see you several times.

I want to follow up on what the Chair and MLA Dean have talked about. My background was retail, with a multitude of stores across British Columbia. It bothers me, to be frank, about how and what government pays for some of these leases.

As MLA Dean pointed out about what some societies are faced with these days, when I see five employees paying $12,000 a month for rent in a place, counting triple-net, I have a flag that goes up right away. I understand that leases are longer term, but I would hope that government, in its wisdom, starts taking a look at some of these costs and, maybe, looking at other places to conduct their business.

In my personal opinion, I don’t think you need to be in the downtown core. We can be in other places on the Island, or maybe on the Mainland. I don’t know, but I really hope that we start getting a handle on some of these costs. They are extravagant, when you look at it from the private sector to what government pays.

There’s nothing that you probably have done in the past to bring this forward or can change at this point in time. But just to plant a seed — because you’ve heard it from three individuals on this committee — it’s something that really should be addressed into the future.

F. Spencer: Right. Thank you for the comment. I think you know that there are four of us that share the common services. The four of us occupy most of the same building. Three colleagues and I meet regularly to talk about issues around shared services. That’s something that, if you didn’t raise with my colleagues, I’ll certainly raise with them the next time we meet, just for a general purpose. Dave is always very good about bringing us options. We’ll take that into consideration.

D. Ashton (Deputy Chair): I just hope that option starts to expand. I spent five years with the Municipal Finance Authority. They owned a building downtown on Fort Street. They ended up moving and going outside of the expensive core. Being on that, it was hard to manage and to justify those expenses, so they actually moved outside the core. I think it’s just things that we have to look at in the future.

F. Spencer: Agreed, certainly. We will do that.

D. Ashton (Deputy Chair): Again, I want to thank both of you for coming today. I really appreciate not only your reports but the candour that you folks have when you come and say: “Here are the details.”

B. D’Eith (Chair): Thank you, Dan.

Not seeing any further questions, thank you so much, Commissioner, for all your work and for everything you do with the merit commission, and to Dave for continuing to have the answers on the top of your head. That’s very great. I appreciate your presentation, and we will deliberate on it. Thank you so much.

F. Spencer: Thank you for the opportunity to be here. Thank you for your attention.

B. D’Eith (Chair): Oh yeah, absolutely.

Recess.

The committee recessed from 11:25 a.m. to 11:48 a.m.

[B. D’Eith in the chair.]

B. D’Eith (Chair): We have the Office of the Police Complaint Commissioner. Stan Lowe, please go ahead.

OFFICE OF THE POLICE
COMPLAINT COMMISSIONER

S. Lowe: Chair, Deputy Chair and hon. members of the committee, once again it’s my privilege to appear before you and present to you, for your consideration, our budget request for the next three fiscal years.

I wish at this time to acknowledge for the record of proceedings that in attendance with me are Deputy Commissioner Rollie Woods; our director of operations and strategic initiatives, Andrea Spindler; and David Van Swieten, the executive director of corporate shared services. I am indebted to Ms. Spindler and Ms. Kimura of our office for their very capable assistance in the preparation of our submissions and service plan for you today.

I note there are a number of new members on the committee this year, and I’m mindful that this committee has been busy with its work all over the province. This has been a long haul for the committee, and I’m the last officer scheduled to appear before you. It appears that I stand between you and lunch today, so I’ll try to be brief with my comments. I wish to thank you in advance for your thoughtful consideration of our budget request.

[11:50 a.m.]

Before I embark on my formal submission, I wish to make some opening remarks in hopes of acquainting the committee with the landscape of civilian oversight of law enforcement in British Columbia. I intend then on providing you with a high-level summary of our formal submission, focusing on some of the more relevant portions for your purposes. I anticipate that I may take approximately 30 minutes, which I hope will leave you enough time for any questions that you may have.

I’d like to speak first about the profession of policing. Policing has been described as a noble profession. In my experience, this is a very apt description. Nobility has been defined as “a greatness in character, in high ethical standards or ideals, that serves a greater cause than self; faithfulness to a higher calling or purpose.” It has been my experience that the overwhelming majority of police officers conduct themselves professionally, with integrity, and uphold the public trust day in and day out. You cannot work in the field of oversight of law enforcement without possessing a deep respect and admiration for the profession of policing.

Policing in Canada is by consent. Policing by consent is a long-standing model of policing, which finds its roots in the United Kingdom and exists among several Commonwealth countries, including Canada. This philosophical approach finds its genesis in the passage of the Metropolitan Police Act in the United Kingdom in 1829, under the guidance of Sir Robert Peel. You may have heard of Sir Robert Peel’s nine principles of policing.

More recently the Home Office in the United Kingdom described policing by consent as follows: “In this model of policing, police officers are regarded as citizens in uniform. They exercise their powers to police their fellow citizens with the implicit consent of those fellow citizens. ‘Policing by consent’ indicates that the legitimacy of policing in the eyes of the public is based upon a general consensus of support that follows from transparency about their powers, their integrity in exercising their powers and their accountability for doing so.”

The importance of accountability in this model of policing cannot be overstated, and this need for accountability has fueled the development of a network of civilian oversight across the country. This sea change in terms of civilian oversight has taken place over the past two decades and has established Canada as a leader in the world in the area of civilian oversight of law enforcement.

Mr. Justice Michael Tulloch, a sitting judge of the Ontario Court of Appeal, has been recognized as a luminary in the area of oversight. In April of this year, he released his much-anticipated Independent Police Oversight Review report in Ontario. In his report, Justice Tulloch discusses the concept of policing by consent, and he states the following: “The public’s voluntary conferral of powers on the police comes with the commensurate right to ensure that those powers are being used properly and effectively. This requirement of accountability has led to increased adoption of various models of civilian oversight of police around the world. While in many jurisdictions, police initially resisted civilian oversight, most police today recognize its value.”

It is important to note that there is no other profession that is held to the same level of accountability through civilian oversight than policing. This enhanced accountability is a reflection of the significant powers police possess in terms of their interaction with members of the public. No other profession has the powers over citizens to detain and arrest; to search premises and persons, up to and including a strip search; and to use force, including the use of lethal force. Policing is a profession which stands alone and which is engaged in a social contract with the public based on consent.

Now, civilian oversight in British Columbia. I can tell you that over the past decade, British Columbia has earned the reputation as one of the most progressive jurisdictions in Canada in the area of civilian oversight of police. In fact, most recently, Justice Tulloch met both with the Solicitor General and Attorney General to express his gratitude for their assistance in participating in the recent review. Several of his recommendations were a direct result of his consultations with this government. B.C. was the only province he personally attended in his consultations across Canada.

[11:55 a.m.]

As with all jurisdictions in Canada, the unfortunate catalyst underlying the development of civilian oversight of law enforcement has been tragic encounters between police and the public they serve. In the past decade in British Columbia, I need only mention the Frank Paul inquiry and the Robert Dziekanski inquiry, which both gave rise to sweeping changes in oversight in British Columbia.

Two important developments included substantial legislative reform to oversight powers contained in the Police Act in 2010. These changes were intended to incorporate the recommendations of the late Josiah Wood, QC, in his report on the police complaint system for municipal police in 2007. The hon. members for Surrey-Panorama and Surrey-Fleetwood will recall that they were members of a unanimous vote in the House which passed this legislation into law.

The other notable development was the creation of the independent investigations office, the IIO, which, as its civilian oversight function, undertakes the investigation of potential criminal misconduct related to incidents between police and the public resulting in serious harm or death.

Now, our office, the OPCC, is entrusted with the oversight of professional misconduct complaints and investigations involving municipal police where the investigations are undertaken by the police. We retain a limited residual jurisdiction to refer matters to the prosecution for criminal charge assessment. However, in practical terms, this usually relates to conduct that does not result in serious harm or death, which is outside the jurisdiction of the IIO. By way of example, this may include allegations of common assault and driving offences.

It’s important that I make clear to the committee that there is no redundancy in the work of the OPCC and the IIO. We have in place a practical process which jurisdictionally defines our respective roles and avoids the duplication of work.

The role of the OPCC is clearly set out in the legislation. We are a civilian, independent office of the Legislature who have the general responsibility for overseeing and monitoring complaints, investigations and the administration of police discipline in proceedings involving municipal police in British Columbia. In addition, we are tasked with ensuring that the objectives of the Legislature, as set out in legislation, are achieved.

In practical terms, our role is both a gatekeeping and protective function, in that we effectively act as guardians of the public interest by ensuring the accountability of the police disciplinary process in order to maintain public confidence in the process.

A positive development in our system of oversight is that alternative dispute resolution has grown tremendously during the past nine years. I designated ADR as a legacy initiative when I was first appointed, and it is my goal to ensure that it remains a fundamental part of the operations of this office.

A shortcoming of our current system of oversight is that we have only experienced a modest improvement in the quality and professionalism of investigations by police of police. These issues of inadequate investigations and outcome in relation to serious allegations against police were front and centre in the report of Mr. Justice Josiah Wood. He made several recommendations to government, which were incorporated in legislation to address the inadequacy of these investigations and outcomes.

In my view, the failure by government to implement a contemporaneous oversight system as required by the legislation, as well as the limited powers of our office to effect qualitative improvements to investigations conducted by the police, has diminished the accountability of the investigative and disciplinary process.

Josiah Wood viewed his recommendations as a last attempt at a model in which police investigate police. I intend to modify my submissions to government for the legislative change to encompass a careful review of the recommendations of Justice Tulloch in his report. Currently, legislation incorporating those recommendations has received second reading in the Ontario Legislature.

In terms of accountable oversight, we still have an important gatekeeping function in which we are able to send matters to retired judges pursuant to three different avenues of adjudicated review. As gatekeepers, we are never tasked with determining whether or not a matter should be substantiated or not. This is the jurisdiction of the retired judges. However, in two types of adjudicated review, we have participatory rights in the process to ensure that substantive concerns are addressed on behalf of the public.

As you will hear shortly in my submissions, we sparingly and prudently resort to these avenues of adjudicative review. According to our statistics, on average, we disagree with the outcomes of the disciplinary process less than 2 percent of the time. These matters are sent on to review.

[12:00 p.m.]

It’s important to make clear that these avenues of adjudicated review are based on dedicated funding. That means that any unspent sums must revert back to treasury and cannot be accessed by our office for our operations. This committee has been very supportive in the past in ensuring this dedicated funding is sufficient, based on demonstrated need. However, our data will demonstrate that a significant increase in funding is required, based on the current climate of litigation.

In Canada, the public is served by a network of agencies engaged in civilian oversight of law enforcement. These federal and provincial organizations vary in their respective processes in terms of transparency and accountability, but what they do is garner a level of confidence amongst the public at large that has avoided the unsettling unrest that exists between the public and policing in the United States.

The policing environment currently in the United States has been described as a state of crisis in terms of public confidence in policing and the public they serve. The crisis in public confidence is a result of an absence of any accountable process that leads to an outcome which garners the confidence of the public. The answer is not putting body-worn cameras on every police officer, as we are now seeing the shortcoming of this approach in terms of compliance, reliability and, ultimately, utility.

To conclude my preliminary remarks, I would like to take a moment to inform the committee about the people who work at the OPCC. I am privileged to work alongside a staff of dedicated public servants who strive for independence, integrity and excellence in their work in order to promote public and police confidence in civilian oversight of law enforcement. British Columbians are well served by our staff at the OPCC.

Now I’d like to take you through a high-level briefing of my submissions. Without reading directly from them, I’m going to take you quickly. You may choose to follow along, and I’ll let you know where the page numbers are, or you may just choose simply to listen.

Turning to page 5 of our formal submissions is our budget request summary. Last year our office did not seek any increase in operating expenses and limited our request to an increase in capital budget to accommodate renovations to our office space for additional staff. The committee kindly approved a $15,000 increase to the capital budget, bringing the total capital budget to $40,000.

As I indicated earlier, adjudicative and legal funding is dedicated funding in nature, which means any unspent funds must revert back to treasury each year. In the past, any additional requests for funding have always been based on demonstrated need. We are asking for an additional $450,000 in terms of dedicated funding for the current fiscal year to cover our current adjudicative and judicial reviews. We’re also requesting an additional $350,000 for the following three years.

In our submissions last year, we informed the committee that the B.C. Public Service Agency was in the process of implementing a new management compensation and classification framework for excluded managers. This new classification scheme has now been implemented and was one of the major inflation pressures to our operating expenses. We are requesting an increase to our operating budget to account for this inflation, including $40,000 for this current year and $56,000 thereafter.

I’ve talked a bit about our office. If I can direct your attention to page 8, under the heading “Building a Strong Civilian Presence.” As I’ve stated in previous budget submissions, the OPCC is committed to promoting and maintaining a strong civilian presence in those positions engaged in oversight. We are pleased to advise the committee that almost two-thirds of our staff in decision-making roles are from a civilian background. In addition, the majority of our management positions are staffed by individuals with a civilian background.

At this point in time, I believe that we have struck the appropriate balance between civilians and those coming from a policing background and the required skill sets that are necessary to have efficient and effective operations. I will say, though, that I have been enlightened more recently by Mr. Justice Tulloch in his review of this matter, and although public confidence is bolstered by a civilian complement in oversight, I believe that what the real focus should always be is on the individual.

[12:05 p.m.]

Whether you come from a policing background or a civilian background is a small consideration. There are so many other biases that must be addressed in the course of providing analytical work at our office. These include age, gender, sex and socioeconomic, as well as many unconscious biases. But I understand the need to engender public confidence and the need to have balance within my staffing.

Turning now to the following page, page 9, I would like to speak a bit about alternative dispute resolution. As I indicated earlier, alternative dispute resolution has been identified as a legacy initiative by myself. I believe resolving complaints through communication, understanding and reconciliation results in a more meaningful resolution for the participants. ADR allows for the repair and improvement of public confidence in police, one relationship at a time.

On page 10, I’d like to direct you to the second paragraph. Last year 40 percent of admissible registered complaints were successfully resolved through the complaint resolution process. Of those complaints which were opened and concluded in the first half of this year, 62 percent have been successfully resolved. This is a significant increase from previous years. I will get into more detail about that further in my submissions.

Another notable initiative has been a pilot project with the Vancouver police department, which I can now report back to this committee has been a tremendous success. We’ve increased the number of successful resolutions by 14 percent. With this development of this pilot project, we are planning in 2018 to roll this out to other departments in British Columbia.

Despite our efforts in promoting and encouraging ADR, it’s our view that legislative change is needed to focus on complaint resolution as a way of dealing effectively with less serious and suitable complaints. This approach focuses on repairing relationships between police and the public they serve. We have made a recommendation to the government for a mandatory complaint resolution process, which would provide the commissioner with the discretion to direct suitable complaints to a pre-resolution conference for an attempt at complaint resolution.

At page 11, I wish to address just a few comments about submissions on legislative change. As the committee may know, it has been approximately eight years since the implementation of significant changes to the Police Act, which took place in March 2010.

One of the cornerstones of the review undertaken by Josiah Wood was a recommendation for a contemporaneous oversight system. Unfortunately, this concept of contemporaneous oversight has never been fully realized in the eight years since the legislation was implemented. I’m of the view that we should at this time reconsider the entire model of oversight in the province in light of the recent recommendations from the review of oversight bodies in Ontario by Michael Tulloch.

Moving now to page 13, I’d like to acquaint the committee with the summary of our workload. Over the past five years, we’ve opened over 6,385 files. There has been a modest decrease in the number of files opened in 2016 to ’17 compared to the previous year, and this decrease is largely as a result of fewer registered complaints filed. In 2016 and ’17, we received 455 registered complaints compared to 530 complaints the previous year. Other types show an increase, particularly in questions or concerns and monitor files.

I’ll direct you to the chart. What it nicely sets out are the types of matters that constitute our oversight. We have oversight of internal discipline matters. Those are matters that are dealt with within the police department that usually do not involve matters involving the public. We have a number of monitor files we are alerted to by many police departments in terms of their work and their investigations underway.

We also review questions or concerns. These are submissions from the public which have been characterized by police departments as questions or concerns and not complaints. We review them all to ensure that they were properly characterized as a question or a concern and not a complaint.

We also are involved in mandatory investigations. Now, the bulk of these mandatory investigations are for serious harm or death. These are criminally investigated by the IIO. We have a subsidiary, ancillary function of reviewing the IIO investigations to see if there are any other professional misconduct issues that arise from their investigations.

[12:10 p.m.]

Ordered investigations are those where the commissioner may receive information from the public which, if proven to be true, would constitute misconduct, and on our own initiative, we can order an investigation. Ordered investigations are usually those that are requested by departments once they learn of information that may constitute misconduct.

Finally, we have registered complaints, which are those that may be filed on line or by mail or by telephone from the public. As you’ll see, since 2012-13, all of these average approximately 1,100 files this year. However, halfway through 2017-18, we appear to be on track for approximately 1,200 files.

Moving now to page 50, I want to talk a bit about one of our gatekeeping functions, and that’s admissibility. I have undertaken a strong commitment to the front end of the complaint process as envisioned by the act. This gatekeeping function is crucial to ensuring the proper management of public and police resources. Of the 2,793 registered complaints received from the public in the past five years where an admissibility assessment was completed, 1,222 were deemed admissible. Our admissibility rate, if I could use that term, is approximately 44 percent, and the first half of 2017-18 shows an admissibility rate of 42 percent of all registered complaints.

This front-end function involves an investigative analyst reviewing the complaint. He or she may contact the complainant for further information. He or she may seek information from police sources for the purposes of context only and not to weigh the complaint. Through this process, we are able to have what I say is one of the lowest admissibility rates in Canada, at 44 percent. But it is a labour-intensive process.

If we may now turn to page 16 and the page over, I want to alert you that in terms of our admissibility rate, we conduct quarterly admissibility audits by our executive management to ensure that the decisions reached by our investigative analysts are sound. So we have in place a number of auditing functions to ensure that our work is consistent with our internal business practices.

The next topic is the disposition of complaints and orders for investigations. Last year the OPCC completed 426 admissibility assessments out of 445 registered complaints and determined 185 of those complaints to be admissible for an investigation under the act. What happened to those investigations? If you go to the pie chart, if we look at the 44 percent that we make admissible, we find that 10 percent are discontinued; 40 percent are resolved through informal resolution; 19 percent are withdrawn; and the remainder, 38 percent, are forwarded to a discipline authority for decision. The discipline authority is either the chief constable or his senior delegate that sits and adjudicates following an investigation of whether or not the allegations of the complaint is substantiated.

What this basically sets out is that of all complaints filed, only 17 percent of complaints are actually investigated. This is a substantial reduction from what was in place in professional standards sections in British Columbia before. They used to have many, many more complaints to investigate. So we’ve managed to provide a cost savings to police agencies through the processes of our work and through our application of the legislation.

Page 17 sets out our admissible registered complaints and how they are dealt with by way of chart. If we look at the most recent year, 2016-17, we had 161 complaints with the disposition: 10 percent of them were discontinued; 40 percent, as I showed, were informally resolved; 12 percent were withdrawn; and 38 percent were forwarded for decision. If you look back through the years, it’s a significant decrease over the previous two years of matters going through to a discipline authority decision.

[12:15 p.m.]

If I may take you now to page 18. This is a section that’s probably more in depth, but it sets out in the chart the number of successful complaint resolutions or alternative dispute resolutions over the years. We started off in 2012-13, after this was identified as an initiative and after I’d been in this position for approximately two years, with 34 percent, and we’ve kind of plateaued at 33 percent. One year it was even less, at 23 percent. The following year, 2015-16, it was 25 percent.

We had a renewed effort in this area, looking at our operations and looking at training police in informal resolution and complaint resolution and pressing that as a viable alternative to the formal process. I’m happy to report that I think we’ve found a sweet spot in terms of a 40 percent complaint resolution rate.

Turning to page 20, I’d like to talk at this time about reportable injuries. Municipal police departments are required to report all incidents where an individual in the care or custody of police suffers a reportable injury that requires emergency care by medical practitioner and a transfer to a hospital. An experienced analyst will carefully review each of these notifications and the accompanying information to make a determination whether an investigation should be ordered under the act. This will often involve liaising with police agencies to receive further information as to the circumstances of the incident or the nature of the injury.

The OPCC also tracks the type of force used in these cases. Last year seven, or approximately 2 percent, of the 426 reportable injuries submitted to the OPCC met the definition of serious harm, which meant a mandatory external investigation under the Police Act. It also involved the IIO asserting jurisdiction and continuing with the investigation to conclusion. In five instances last year, I exercised my discretion to order an investigation as there appeared a basis, based on the information received from the police, that there was an allegation of misconduct that required investigation.

Injury from dog bites continues to contribute to the greatest number of reportable injuries. Forty-one percent of people who were injured by police and required transportation to a hospital for emergency care were from police service dogs. Page 21, or the next page, is a chart showing all the types of use of force that resulted in reportable injury notifications. You’ll see by far that dog bite, year after year, constitutes the highest reportable injury.

If I could take you to page 22, I’d like to speak a bit about adjudicative reviews under our legislation. Under the previous legislation, the only available option of adjudicative review was a public hearing. The legislative amendments that came into place in March of 2010 introduced two additional intermediate avenues of adjudicative review. One is the appointment of a retired judge to review a matter, and the second was a review on the record.

In the table contained on page 22, it just demonstrates year by year how many of these reviews have been ordered. You’ll see that our office has taken a measured and principled approach in terms of what matters we have sent on for adjudicative review. I think some stakeholders may describe us as being actually frugal in this particular area, but they do command significant resources financially, as well as engaging our office and other stakeholders.

The appointment of a retired judge, just to give you an idea of what this adjudicative avenue entails, is following an investigation by police of police, a discipline authority will determine whether or not the evidence appears to substantiate or does not appear to substantiate the allegations. If there’s a determination that the conduct of the member does not constitute misconduct, we review the matter, and we review all matters. If I believe there’s a reasonable basis to believe this decision is incorrect, I may appoint a retired judge to review the matter.

This means all the materials that the discipline authority had in his or her possession are forwarded to the judge. The judge reviews all the matters and determines, on a threshold, whether or not the matter appears to be substantiated.

[12:20 p.m.]

Of the 30 matters that have been referred under 117, the retired judge has agreed in 24, or 80 percent, of these reviews. I have referred, in the past year, five matters to a retired judge for a review under this particular adjudicative avenue for review.

Page 23, our reviews on the record and public hearings. What is an intermediary avenue of adjudicative review? A review on the record deals with those matters in which a discipline authority has determined that it appears it has met the threshold for a discipline proceeding, in that a discipline proceeding, then, or hearing, takes place.

I can tell you that there are less than 20 hearings that take place in British Columbia a year. In comparison, to give you a bit of context, the Edmonton police service holds over 40 alone for its police service a year. So there are few discipline proceedings.

Where I determine that it’s in the public interest and where I determine that, upon a review of the decision of a discipline authority that I may not agree with or that, in the public interest, a review is necessary, I can order a review on the record.

Once again, the whole record, which is of the discipline proceeding, is placed before a retired judge for a review. In this particular type of proceeding, I have participatory rights, and I’m able to make submissions as to our view of the matter from both a substantive and procedural perspective. Then the retired judge would rule on that matter.

The other adjudicative review is the public hearing, which, I say, is probably the most transparent and most accountable process and, perhaps, the most expensive process. This is where, if I believe it’s in the public interest, I can arrange a public hearing — retired judges appointed to sit and hear evidence. It’s a trial de novo, fresh evidence. It’s not confined to the discipline proceeding or anything else. These hearings are open to the public, and the retired judge’s decision is final and conclusive.

Since April 1, 2010, there have been 14 public hearings arranged. Five of the hearings, I should note for you, are mandatory because of the proposed discipline. Where there’s been a discipline proceeding and a discipline authority has determined that the appropriate discipline is demotion or dismissal, a member has, as a matter of right, the right to a public hearing. That has occurred on five occasions.

Nine hearings were initiated by myself. This year I have arranged two matters because I believe there is a reasonable basis to disagree with the decision of a discipline authority.

Turning now to page 24 — judicial reviews. Who does oversight of the overseers and that of the courts? We have experienced an unprecedented number of judicial reviews. Currently this office is engaged in 11 judicial reviews — ten of which have been initiated by police unions or a police department and one matter where the office is appealing a Supreme Court decision to the Court of Appeal with the assistance of government, which is also appealing the same decision. We have received notification that an additional two matters will be heading to the judicial review in the near future.

Now, as I indicated, a number of the current judicial reviews have been initiated by police associations which question our power to utilize one of the three forms of adjudicative review available under the act. The petitioners are seeking relief from the courts to quash our decision to call such a proceeding. The guidance the courts will be able to provide in the interpretation of the legislation is critical in terms of the intent of our legislation and our process.

To date, there have been 13 concluded judicial reviews — eight initiated by police or police unions, three by our office, one by the Information and Privacy Commissioner and one by a complainant.

I hasten to add that our office is subject to a statutory review every six years. A special committee of this Legislature was struck in 2012, and they retained the Auditor General to review our office — a procedural review of our office and our use of these adjudicated avenues of review. Their findings indicated that we promote thorough and competent investigations of police complaints by our exercise of discretion, pursuant to the Police Act, which included the power to refer a matter to one of these three adjudicative avenues for review.

Our office will continue to exercise our gatekeeping function, under the act, and is committed to following a principled approach in arriving at our decisions.

[12:25 p.m.]

The decisions from the courts will provide guidance to our office in terms of interpretation of the act. I think government is well aware that our act is somewhat tired and requires some clarification in terms of both substantive determinations as well as process. It’s just a matter of really awaiting our turn in the legislative calendar to bring about any legislative changes.

Page 25 is more of a detailed discussion about our adjudicative and legal expenses. Currently our funding for adjudicative and other legal expenses stands at $400,000 a year. This funding is dedicated — which I indicated earlier — in which any unspent funds are returned back to the provincial treasury.

This is really public trust or public interest funding because what it does is fund these adjudicative avenues. In the chart that I have set out at page 25, you will note that in four of the past five years, our expenditure in the area of adjudicative and legal expenses has exceeded the dedicated funding. Through the past support of the committee, our annual funding for adjudicative legal expenses was increased from $300,000 to $400,000, as you’ll see in 2014.

I think it’s important to note that our office has provided surplus budgets for the past five years in returning monies back to the treasury in terms of both our adjudicative, legal expenses and our operating expenses. But what I can tell you is that it’s difficult to predict with any certainty budgetary expenditures for adjudicative and legal expenses.

We have been able to supplement for the past five out of six years those shortcomings in funding. These were done by lags in hiring. We have learned by using lags in hiring…. We’ve created, what I would say, a stressful office environment. This is the first year in which we’ve actually hired to the complement which this committee has permitted. We have found an immeasurable improvement in the work-life balance in our office. We’ve had no issues with respect to turnover. Our work and quality of work has improved substantially.

In the past — and this is a fault that falls on my shoulders — I had purposefully had a hiring lag in the event of having a shortage in expenditures. And that has been upon the backs of those that I work alongside.

Page 26. Paragraph 2. A review of our current and ongoing adjudicative and judicial review reveals that we have substantially exceeded the amount in dedicated funding for this year. There have been two public hearings called this year. Both decisions are now the subject of judicial reviews, and six section 117s have been arranged this year, where four of those are reviews under adjudication at this time. In addition, as I’ve indicated, there are 11 outstanding judicial reviews. We anticipate nine of those matters will be litigated in the courts this current fiscal year, which I think will provide invaluable guidance to all the stakeholders.

Moving to our current fiscal year in adjudicative and legal expenditures. There is a table on the next page.

Let me speak a little bit about judicial reviews. A significant portion of our dedicated funding has been spent on judicial reviews which have been initiated by police associations. The petition filed by former chief constable Frank Elsner of the Victoria police department has been particularly costly to this office, accounting for approximately 20 percent of our money totally spent on dedicated funding. As mentioned, there are a number of adjudicative reviews underway.

Funding. I can tell you from a department of less than 200 members for legal funding, their legal budget far exceeds our entire budget for adjudicative and legal expenditures. If we turn to page 27, it sets out our projected costs of $825,000 for this year, but it also sets out our first, second and third quarter costs. I can tell you the number of $339,827 for totals spent. The number as of yesterday is $397,000. There’s $3,000 left in the dedicated funding.

[12:30 p.m.]

Now, a review of accessible financial information for municipal police departments collectively demonstrates that the police agencies have access to funding for legal expenses related to Police Act matters that is in the millions of dollars in comparison to our current legal budget. As I indicated earlier, smaller agencies, such as Victoria, have access to legal funding that exceeds our entire current budget.

Furthermore, police associations that act on behalf of their members have access to litigation funds, annually, in the millions. These associations and these municipal departments enjoy a sizable advantage in their ability to initiate legal proceedings, which could easily outpace our current level of funding and resources.

Turning now to page 30 in our request for funding. Our office is very appreciate of the strong support we have received from the Legislative Assembly and this important committee over the years. The legislative vision and support of the House have made British Columbia a leader in the landscape of oversight of law enforcement in Canada. This office has maintained a fiscally prudent approach to spending, returning surpluses to the provincial treasury over the past five years.

The environment of police complaints and civilian oversight of police can be acrimonious and difficult. This has led to staff turnover and staff burnout. Through support from the committee, we’ve been able to fully staff the office for the first time in four years. By having a full complement of staff, file loads have been much more manageable, and the work environment with the OPCC supports a healthy work-life balance.

While the calculation of our discretionary spending is somewhat subjective, by taking a conservative approach to our calculation, approximately 2 percent of our budget is really allocated to discretionary spending. All other costs borne by this office are fixed costs.

In terms of dedicated funding, the adjudicative and legal expenses for this year are projected to be the most costly to date. This is a direct result of costs associated to responding to judicial reviews filed in relation to this office. The last increase in dedicated funding was in 2014-2015.

Eight matters have been referred to a retired judge through one of three avenues available for adjudicative review this year. In addition, the legal proceedings initiated recently by the Police Association include challenges to our discretionary abilities that are set out under the Police Act, including the ability to appoint a retired judge for the purposes of reviewing decisions and discipline authorities in the area of determining misconduct or appropriate disciplinary or corrective measures.

B. D’Eith (Chair): Mr. Lowe, I just want to point out that we’re over time. If you could get to….

S. Lowe: I could wrap it up in about five minutes. Three minutes.

B. D’Eith (Chair): If we could, yeah. Three minutes. That would be great.

S. Lowe: In order to the able to fund the current adjudicative reviews and respond to petitions filed, we are asking the committee for a $450,000 increase in dedicated funding for this fiscal year, which would bring the total amount to $850,000. Furthermore, we are seeking the bump-up from the new management classification and compensation framework, which would be $40,000 this year and $56,000 for the following years. I have also set out the dedicated funding requests for the next two years, which would be an additional $450,000 and $350,000.

I will add, as a final note…. You may recall that the Judicial Compensation Committee unanimously recommended a pay increase for Provincial Court judges, which are tied into the salary of statutory officers. The report was tabled in this House, and the Legislature recently unanimously proposed a schedule of payments dating back several years. This matter is back with the Provincial Court Judges for consideration. There’s no firm estimate of what the cost may be, but if it is resolved in the near future, we may be contacting the committee if necessary.

Those are my submissions. If there are any questions, I’m more than happy to answer those.

B. D’Eith (Chair): Okay. Thank you very much.

D. Ashton (Deputy Chair): Sir, thank you for your presentation. I appreciate it and having you’re your staff here.

On these costs of adjudications, is there not an opportunity to get costs if you’re successful?

S. Lowe: I had it in my notes, and I was remiss in not addressing your comments last year, along those same amounts.

We sought a legal opinion in that area. The state of the law is this. In areas involving administrative tribunals and administrative agencies, the courts are hesitant to award costs against those agencies and for those agencies in that adjudicative process.

[12:35 p.m.]

The Chair will note that it’s really in special, exceptional circumstances that they will order costs — if litigation has been brought along, for example, unnecessarily or has an oblique motive. We’re keeping an eye on those, and I’m not foreclosing that, but it’s an exceptional circumstance in which either party can seek costs.

D. Ashton (Deputy Chair): Mr. Chair, just to carry on, you’re singling out the officer from Victoria and some of the circumstances that are there. You have a legal opinion on it. But have you gone to the courts and asked for it?

I would just think that at some point in time…. Again, you complain that some of these other agencies have millions of dollars at their disposal, where you’re taxed with the ability of funding. Maybe it’s time to fire a shot across their bow to say: “We are going to start looking for costs if we’re successful in these matters.”

S. Lowe: Yes. I completely understand where you’re coming from. It’s where we have the right case that crosses that threshold of where we can make a strong case that in this particular case, or in any case, that costs should be awarded to serve as a signal to that litigant in relation to bringing matters to litigation.

I am not convinced, in the current matter I alluded to in Victoria, that that threshold has been met as of yet. But it’s certainly in the field of play, if I could leave it at that.

M. Dean: Thank you for your presentation.

It looks to me like over the last few years, a lot of things have gone up. You’ve had a lot of approvals of increases. Professional services went up by 25 percent. Salaries went up by 7 percent between 2015-2016 to 2016-2017. Capital went up from $25,000 to $40,000. All those things have kind of, like, lifted the base up. Then if you apply a percentage to that, if that’s your foundation funding, it’s adding a lot on top of an increase. That’s one of my two questions, if that’s okay.

The projection, to me, just looks like it keeps on going up, and that’s not sustainable. I’m just wondering if you can help us see how that can be managed.

S. Lowe: Yes. The expenditures over the past have been based on, primarily, demonstrated need with the committee. For example, in terms of things like staffing — and you may not be aware of this — we received, through our jurisdiction, an additional minimum of 400 special constables. That became part of our jurisdiction to do oversight on. Part of the increase in salaries and funding was for two positions to accommodate for that.

The increase in capital of $15,000 was the first increase since 1998. Capital has really not kept pace with the costs of major office components, IT, and so forth. So that $15,000 that was requested last year was the first increase since 1998 in capital.

So yes. You are seeing an increase, but I also hasten to add that this office has returned surpluses for the past five years. We are trying to be as fiscally prudent as we can. What we ask for — for example, for this year — are matters that are outside of our control. These are increases in the MCCF process. As I indicated earlier, with 2 percent discretionary spending, I just can’t accommodate it in our current budget.

M. Dean: So how many FTEs do you have? Do you have nine FTEs?

S. Lowe: No. Altogether on our staff, it is 19.

M. Dean: Oh, okay. All right. I’ll save that one, thank you, and do some other calculations.

A. Weaver: I’m trying to understand the flow through time of the cost increase. If I look at files opened by fiscal year, it looks like the number of files hasn’t really changed that much. On page 13 of your report, it’s actually gone down. And if you double what you have so far this year, it’s on par to be 2016-2017. So the number of files hasn’t changed.

Then, if I look to page 17 and I look at the complaints with no disposition, I’m reflecting upon…. There seems to a lot of cases in a very unusual year, in 2017-2018, where there are very few complaints with disposition and a very large number of complaints with no disposition. That carries across to the table on the opposite.

The increase in budget, if I understand correctly, is then a direct consequence of the…. The reason why there’s no disposition is because they’re going for judicial review. Is that correct?

[12:40 p.m.]

S. Lowe: Part of it is. Well, what I can say is that when we talk about “no dispositions,” and I’m looking at admissible complaints…. If we look at the most recent ones, the 76 that are currently outstanding and the 24 of last year, some of those in the 24 of last year are currently in the disciplinary process.

They could be in the disciplinary process, but I have to advise the committee that sometimes the disciplinary process is very prolonged. Once the police commence a discipline proceeding, our role and oversight is to sit on the sidelines and watch. It’s only once that discipline proceeding is concluded that we have a gatekeeping or oversight role to determine if the process itself was accountable.

A. Weaver: There seems to be a real exponential problem with the growth in “no disposition.” If you go back to 2012, it goes five, six, three, three, 24, 76.

S. Lowe: Yes.

A. Weaver: Concomitant with that is that….

S. Lowe: You make a good point. The 2016 is the full year. You’ll have to note that the 2017 and ’18 include matters that are still under investigation. That’s where you get the 76.

A. Weaver: Okay.

S. Lowe: They have up to six months to investigate. So that’s where you’re seeing the large 76. They’re not completed files. They’re currently under investigation. At the time of this end of the second quarter, there were still 76 matters that were out there being investigated.

A. Weaver: But then if I go to your budget request, which is…. For the professional services, you go from 440 to 790, and then you keep it at 790, which suggests to me that you’re expecting that this unique event that you describe is going to continue.

S. Lowe: I’m trying to avoid the prospect of, every year, coming to this committee and requesting further funds. It’s important that I get across the dedicated nature of this funding. I call it public trust funding.

The act contemplated three avenues of adjudicative review, but the funding, unfortunately, would come out of our budget. We’ve always kept that separate, so it’s dedicated funding. If, next year, out of that $750,000, $100,000 is spent, $600,000 goes directly back to treasury. We cannot touch it. It sits in a bank or a pool.

What I’m trying to accommodate is that if you look at the years, we’ve had deficits that have come out of my operating expenses for four out of the five years. Knowing that we’re enjoying, now, a full complement, I do not want to go back to that cycle of using lags in hiring to cover off on the dedicated spending — not to be there.

I am asking for a sizeable increase. But what I can tell the committee is this. It’s very difficult, I think, to spend $750,000 a year to find the court time — to find that. In my view, this is an amount where, if you see fit to grant it, we will not be back here for years. But it will also send a message out that we’re prepared to deal with these matters in a principled manner, and we will let the courts decide to provide guidance. What we don’t want to be is outmuscled. To some extent, we feel like we just don’t have a lot of arrows in our quiver at this time.

B. D’Eith (Chair): Thank you very much. I have just one quick question.

This two-rail request is, obviously, supplementary to the current fiscal, and then there’s the new request for this year. Would you say that, in a sense, the supplementary funding is money that is spent, that’s committed, that you’ve already committed to for this fiscal? Is it sort of what you project is going to be for this year, based on where you are right now?

S. Lowe: Yes. How we’ve done that in terms of the way we deal with the adjudicative and legal expenses is that we’ve seen what is actually on the judicial calendar — that we have dates for. They may be adjourned. That often is not the case, because it’s very difficult to get dates. But at this time, we are seeing a number of judicial reviews that will take place in the new year.

We’re hoping that these judicial reviews will provide the necessary guidance and that we’re not going to be back up there again on judicial reviews for the same issues. I’m hoping that our need for adjudicative legal expenses will always be significantly lower than what this honourable committee is prepared to allot for these expenses. That’s why — you’re right — I am seeking a significant increase, but I’m hoping that would last for a long period of time — years.

B. D’Eith (Chair): Just to follow up on that. On the table that shows the amount of variance per year, there’s one big year, but on average, I would say that it doesn’t go more than, let’s say, $100,000. So how do you justify going to $350,000 a year of additional expense when, historically, the variance is only shown as 100-thousand-odd dollars. I’m just wondering if you could comment on that.

[12:45 p.m.]

S. Lowe: I’m taking a cautionary approach. I don’t see…. I don’t know what is up. This is unprecedented. I’ve never seen as many judicial reviews on every decision that’s been made this year. I don’t know if it’s a sense of frustration with the lack of movement on revisions to the Police Act or not. I don’t want to speculate. But what I can say is this. This will be the high-water mark.

I think it’s prudent to say: “Here’s the demonstrated high-water mark.” It can be ordered full knowing to the public that anything that is not spent goes back to treasury, goes back because none of it can be encroached upon. It becomes, I hope, a non-issue for the next few years.

It’s so difficult to predict. This year was just…. We never saw it coming. But I will tell you that once these matters are litigated, I think there will be, I hope, a significant reduction, unless there are other new issues that come up about the act.

Some of it is the interpretation of the act. Our Court of Appeal commented many years ago about the language used in the act and that it’s a difficult act to read and follow and you have to jump around and so forth. Government knows this, and government is working on this. I know that. I’ve been assured of that. It’s just a matter of where we fit in the legislative calendar down the road.

M. Dean: There’s a request in here for some funding for this fiscal year. When does that decision get made by?

K. Ryan-Lloyd (Deputy Clerk and Clerk of Committees): As part of this process.

M. Dean: Do we have a deadline of when we need to make that decision by?

B. D’Eith (Chair): For our report.

Okay. Well, thank you very much, and thank you for all your work you do. We really appreciate it. Thank you for the thorough presentation. We really appreciate all the detail.

S. Lowe: Thank you.

B. D’Eith (Chair): Motion to adjourn?

Motion approved.

The committee adjourned at 12:47 p.m.