During the Fall 2021 session of the British Columbia legislature substantial concerns were raised by Members of the opposition, media, and the public about amendments to the Freedom of Information and Protection of Privacy Act. There were many issues raised, the most contentious being a proposed new application fee for British Columbians seeking access to public information.
You can see my debates and speeches from those deliberations here: October 20, 2021, October 21, 2021, October 26, 2021, October 31, 2021
All through the debate the Minister of Citizens’ Services, Hon. Lisa Beare stated that she was listening to public feedback on a potential new fee, however just moments after the legislative assembly adjourned for the year, Minister Beare signed an Order to create the fee. Was the Minister intentionally misleading the House with her earlier commitments of consultation? Well, as my BC Liberal colleague Michael DeJong from Abbotsford West daylighted in the debate there is an email trail showing the Minister approved a decision note for the fee a month before the legislative assembly adjourned.
Our legislature must operate based on an understanding that we are speaking the truth to each other and to British Columbians. And, on the rare occasion that this understanding appears to have been breached we Members have a responsibility to protect the integrity and dignity of our government institution by asking the Speaker to assess the situation.
In this video and transcript you will see the arguments laid out by Michael DeJong and I. We now await a response from Minister Beare and a ruling from the Speaker.
I rise at the first opportunity to address a question of privilege and to provide evidence. Last November, the Minister of Citizens’ Services may have intentionally misled this House. I’m asking you, Mr. Speaker, to assess whether a prima facie breach of privilege and contempt of parliament has occurred.
I raise this issue in this House. However, this is not the first time that such allegations have been levelled against the Minister of Citizens’ Services with respect to the debate last fall over Bill 22, the Freedom of Information and Protection of Privacy Amendment Act, 2021. These questions, indeed, have already been raised publicly by the media, and if they are left unassessed, they have the very real consequences of eroding the confidence of this institution, in this institution. British Columbians need to know that this institution will not stand by and allow potentially harmful behaviour or even the accusations of that behaviour to be ignored.
Members of this House are aware that chapter 17 of Parliamentary Practice in British Columbia, fifth edition, outlines, in section 17.4, the privileges of the Legislative Assembly of British Columbia. This section outlines that the Constitution Act, 1871, permits this assembly to define our own privileges, immunities and powers: “Parliamentary privilege allows the Legislative Assembly and its members to fulfil their constitutional functions to deliberate, to legislate and to hold the government to account without interference from the executive, judiciary and others.”
Beginning in the 14th century, these privileges have existed to some extent in our governance. Over the course of 300 years, these privileges evolved to protect our work in these chambers, such as it is on behalf of our constituents. These are serious matters, and in order to preserve the integrity and dignity of our democracy, when a prima facie breach of privilege occurs, we members must raise them to you, Mr. Speaker, for your ruling on whether they require further investigation.
We, as members of this House, are afforded privileges that protect our ability to promote the best interests of our constituents within these chambers, such as the freedom of speech, the freedom from arrest and civil actions, and to regulate our own proceedings free from interference and intimidation. While our individual and collective privileges can be clearly defined, contempt of parliament is more difficult to categorize and delineate.
Chapter three of the House of Commons Procedure and Practice, third edition, 2017, covers privileges and immunities of members. In the section defining privilege and contempt it states:
“Any disregard of or attack on the rights, powers and immunities of the House and its members either by an outside person or body or by a member of the House, is referred to as a ‘breach of privilege’ and is punishable by the House. There are, however, other affronts against the dignity and authority of parliament, which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish as a contempt any action which, though not a breach of specific privilege, tends to obstruct or impede the House in its performance of its functions, obstructs or impedes any member or officer of the House in the discharge of their duties.”
The section lists several potential types of contempt, including: “Deliberately attempting to mislead the House or a committee by way of statement, evidence or petition.”
Joseph Maingot writes in Parliamentary Immunity in Canada, 2016: “If someone improperly interferes with the parliamentary work of a member of parliament, i.e. any of the member’s activities that have a connection with the proceeding in parliament, that is a matter involving parliamentary privilege. An offence against the authority of the House constitutes contempt.”
It is the intentional attempt to mislead the House, the interference in our parliamentary work that is an affront to the dignity and authority of this parliament — this House — and the obstruction of the performance of the function of this House that must be investigated further. Questions have been raised publicly by elected members and members of the legislative press gallery with respect to whether responses to questions by the Minister of Citizens’ Services at committee stage of the debate for Bill 22, the Freedom of Information and Protection of Privacy Amendment Act, 2021, amounted to an intentional attempt to mislead this House.
If a member of the Crown intentionally misleads this House, or if allegations are made publicly that a minister intentionally misled the House, and it is allowed to stand without further investigation, it undermines and erodes the confidence of our constituents in their members and ultimately calls into question the dignity of this institution.
It is the Speaker’s responsibility to determine whether a prima facie breach has occurred. Quoting from the Parliamentary Practice in British Columbia: “Once the Speaker has come to a decision based on the evidence presented, the Speaker’s decision is presented to the Legislative Assembly. There are two possible outcomes: that no prima facie breach of privilege occurred, in which case the matter is closed, or that a prima facie breach of privilege occurred. In the latter instance, the Speaker will leave it to the Legislative Assembly to vote on a motion to have the matter examined by a parliamentary committee, or, more rarely, to take corrective steps immediately.”
I have prepared a motion that I’m prepared to move, should Mr. Speaker find a prima facie breach of privilege has occurred, referring this issue to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills for further investigation.
I take no joy in standing here today, raising this allegation in this House. However, it is a responsibility that I accept as part of maintaining the dignity of our democratic institution of government. The question I and other members of this House had as the fall 2021 legislative session was adjourned was whether the Minister of Citizens’ Services had intentionally misled this House through the debate of Bill 22.
I was not the only one with this question. At least two articles were written by members of the legislative press gallery, raising concerns about the conduct of the Minister of Citizens’ Services, specifically in regards to creating the power for an application fee to be set through regulation.
There are several instances during the debate where the Minister of Citizens’ Services was asked about the potential for an application fee. There are dozens of pages of exchanges between members of the opposition and the minister. Questions about the proposed new fee arose almost immediately in the debate that lasted until the final moments of the fall sitting of the House. I will note that for most of the questions, the minister stated that the clause being debated did not apply to the proposed fee, as the legislation was only creating the power to create an application fee, while the actual fee was set in regulation.
Starting in early November and continuing throughout the debate, the Minister of Citizens’ Services suggested to British Columbians that there would be more analysis and further consultation on a potential fee. On November 1, the minister said the legislation “doesn’t outline a fee or what the fee is or how it is going to work. What this legislation does is give the government the ability to create that fee.” That fee will be decided in regulation, going through “the analysis of what a fee should and could look like.”
The minister continued: “At no point in this section or anywhere through this legislation are we going to discuss a number of what the fee will be, because that’s set through regulation….” and “will be set in regulation at a later date.”
On November 3, the minister stated: “I think it’s important for everyone to know that in making those regulations moving forward, that we are listening and that we will continue to listen to British Columbians.”
To this, the member from Abbotsford West responded that the minister was in essence saying: “We want to you grant us this power, but I refuse to engage in a discussion about how we might use that power…That’s antidemocratic.”
These are the types of statements and reassurances that the minister provided British Columbians repeatedly through the month-long debate. The minister consistently led British Columbians to believe that there would be further consultation and engagement on a potential fee. As the debate continues, the minister reinforced her message:
“I know the member wants to share his share his views and the concerns of British Columbians around a potential fee, and I welcome that. Our government is listening. I am listening. I think it is very important to hear that feedback on what a potential fee should be. I thank the member for his interventions in clause 1 and in sharing that information. I thank everyone who has written to my office to share their thoughts, because our government is listening. That will be taken into account, and I thank you.”
All of those quotes come from debates in early November. The assembly continued to sit and debate legislation until November 25, under the assumption that the minister and her staff were listening to the public feedback. These debates clearly show the Minister of Citizens’ Services repeatedly deflecting questions about the specific fee that would be set, and would only engage in questions about the right this bill was giving the government to set a fee through regulation — a process only granted to her and the executive by the passing of the bill, by the power of this Legislative Assembly.
Members of the opposition push hard in the committee stage of the debate to fully understand the implications of the powers we are granting to the minister and the executive, and that is why it is so critical that the executive does not interfere or obstruct in the privileges of the members by not answering questions or intentionally misleading the House.
When a member of the executive of our government is questioned about their intentions, and they reassure our constituents that they will be consulted, the members of this House must be confident that those commitments will indeed happen. Well the minister may defend the earlier commitments of further consultation as the government no doubt heard feedback all through November. The minister continued to make commitments right up to the adjournment of the debate of Bill 22. Just minutes before it received final approval and royal assent, British Columbians were led to believe that there was time following enactment to provide their input on a “potential fee that may be set through regulation.”
The minister stated in the final minutes of that debate on the final day:
“As I’ve said before, and as I know that the member knows, I’m going to answer that the legislation before us today gives us the ability to create the fee. The details of the regulations are through the regulation process, which is separate from the legislation, but the member raises good points. As I’ve said to the member all through the legislation, we are listening. I thank the member for raising the concern.”
Now, the assembly adjourned shortly after 5 p.m. on November 25. On November 26, an order of the Lieutenant-Governor-in-Council was published setting a new freedom-of-information application fee at $10. As Rob Shaw, a member of the press gallery reported on Twitter — still there: “Update. I’m told the minister signed cabinet order setting FOI fee on Thursday, November 25, shortly after the bill passed the Legislature, not Friday as OIC is dated. This was not done in normal cabinet meeting but in what is called a corridor order by a minister using her specific powers.”
It is at this point where this alleged breach of privilege occurs. The minister repeated time and again that she was listening and would continue to listen right up to the end of the debate on the last day of session, then somehow had an order-in-council ready to go with an amount already determined and reportedly signed shortly after the assembly adjourned.
The minister’s statements that she was listening and would continue to listen led this Legislative Assembly and the people we represent to believe that there was time to provide feedback and perhaps even the minister would be announcing a process to gather more feedback. However, it appears the decision had already been made and the documents printed, ready for signing.
Seeing the operation of government over the last five years, it is difficult to believe that as the minister was standing and repeating the message on the final day of debate, that the plan was not already in place to institute the fee immediately following the adjournment of debate.
On November 30, Rob Shaw published the article “Deliberate Misdirection” in the Orca. He writes: “You’re not allowed to outright lie in the B.C. Legislature. But you can, it seems, get away with misleading it, lying by omission and flagrantly thumbing your nose at the institution. At least that’s what the Minister of Citizens’ Services “pulled off in the final few days of the fall session of the Legislature as she shepherded her contentious freedom-of-information changes through the House.”
“The minister spent days insisting that even though her bill created new application fees for public information requests, she couldn’t discuss what those fees might be, because they’d be set later by cabinet regulation, an entirely separate process.”
Shaw continues: “The minister repeated variations of this line dozens of times over days of debate. A process. A listening exercise. A solicitation for feedback from any and all concerned. Except it was a sham.
“As the minister threw up a smokescreen over the process on November 25, the government had already settled on the fee behind the scenes. There would be no new listening. The bill passed the Legislature at 5:15 p. m. Within a few hours, that very night, the minister signed the regulation setting the new application fee at $10. That process raises questions. Are you lying to the Legislature when you say you can’t discuss something because you haven’t made up your mind, but then your staff have already secretly printed off the order on that very issue and are waiting for you to get back to your office to sign it into law before grabbing a late dinner? If it’s not a lie, it comes awfully close.”
On November 29, 2021, Vaughn Palmer published an article in the Vancouver Sun, entitled “B.C.’s Minister of Misinformation Strikes Again.”
He writes, “‘The details of the legislation are through the regulation process, which is separate from the legislation. But I’m listening, and I will consider these concerns as part of the process,'” quoting the minister.
“That was of a piece with what the minister has been saying for weeks, every time the B.C. Liberals asked about the plan to charge the public a fee to apply for information that rightly belongs to the public in the first place. She has refused to answer, on the incredible grounds that the legislation merely creates the power to charge a fee. The fee itself will be set by cabinet regulation after the fact. ‘The fee is something I cannot discuss here,’ the minister unabashedly declared at one point. ‘At no point anywhere in this legislation are we going to discuss the number of what the fee will be, because it’s set through regulation.’
“All along, she maintained that she was listening and that there would be more listening to come before the fee was decided. The minister’s last pledge to listen was delivered in the House shortly after 4:00 p. m. Thursday. Moments later, further discussion of Bill 22 was gavelled to an end under a time allocation motion passed by the New Democrats earlier in the week to expedite passage of their legislative agenda. An hour later, the remaining business was wrapped up by similar means, and the bills were given royal assent. Just after 5 p.m., the House adjourned until next February.
“Later that evening, the minister, joined by cabinet colleague the Minister of Environment and Climate Change Strategy, signed a cabinet order approving the fee of $10. That was mere hours after insinuating, as the minister had done for weeks, that the fee was still subject to a listening exercise to be resolved by the minister and the minister’s cabinet colleagues at a later date. Instead, the decision was already made before the House adjourned. There was no cabinet meeting Thursday evening, and the minister was on the record as recommending a fee in the range of $25.
“No way would such an obedient functionary as the minister have decided to lower it to $10 on her own say-so. So that, too, was a piece, with the evations and obfuscations, that made her the de facto minister of misinformation during the fall session.”
As this House adjourned last fall, the frustration in the opposition, the media and the public was palpable. In addition to the debate on the contentious proposed amendments to Bill 22, the government introduced two large bills with dramatic changes to forestry legislation.
Anyone who has been around these chambers for any amount of time knew that there was little chance that these laws would have the deserved, detailed democratic debate, and indeed, the government used time allocation to limit the debate so they could complete their legislative agenda by their own self-imposed deadline.
The new official opposition House Leader was quoted in Shaw’s article at the time, saying: “At the best, the minister misled the House. At worst, she’s outright intentionally misled the House. What’s particularly galling is that the minister looks into the cameras and says there’s going to be more discussion on a fee question, there’s going to be more engagement, and there will be consultation.”
These are, indeed, strong words spoken in this House. There are strong words spoken outside this House. Strong words written by respected members of our press gallery and published in respected publications in this province for all to read. This, the public record, must be addressed.
Maintaining the public confidence in their institution of government relies on the members of the executive not interfering or obstructing in the work of members in holding government accountable and that all our work protects the dignity and integrity of this House. When the members of the press gallery of this Legislature write such articles about the behaviour of a member of our executive, articles that accurately reflect the feeling that I and other members of the opposition, whose duty it is to hold those members accountable…. The question must be asked of the Speaker whether a breach of privilege has occurred.
As outlined in David McGee’s Parliamentary Practice in New Zealand, 3rd edition, Wellington, Dunmore 2005:
“In appearing before the committee on the matter, the Clerk of the House referred to Parliamentary Practice in New Zealand, where it is stated that the following elements have to be established when it is alleged that a member is in contempt for deliberately misleading the House: (1) it must be proven that the statement is misleading; (2) it must be established that the member making the statement knew at the time that the statement was incorrect; (3) that in making the statement, the member intended to mislead the House.”
As has been shown in the evidence produced here, the minister and cabinet were not continuing to listen to the feedback in those final moments of the debate. The decision was not brought before cabinet following the bill receiving royal assent. The decision had already been made. So when the minister stood in those final moments, reassuring the members of this Parliament that the government was listening, the minister had to know that that was incorrect and that her ministry had already drafted, or was in the process of drafting, an order-in-council. As such, when the minister made the statement in this chamber, was it to intentionally mislead this House?
Majority governments wield exceptional power in this institution. They must, however, remember that each one of us is elected to represent our constituents, and the privileges earned over generations by our predecessors must be maintained. They’re only maintained by the members in this House exercising those powers and those privileges.
To maintain the confidence of British Columbians, the checks and balances that have been created through our standing orders, procedures and protocols must be upheld. The people of British Columbia must be satisfied that the government they elect through democratic processes is transparent in their dealings on our behalf and that they will be held accountable by the members of this Legislative Assembly should they break that trust.
As we have seen, the public allegations against the Minister of citizens’ services must be investigated further, and that is why I’m asking you, Mr. Speaker, to assess whether a prima facie breach of privilege has occurred. If it has, I’m prepared to move a motion that the issue be referred to the Select Standing Committee on Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills for further investigation.