British Columbia·Analysis

No comment: What's the public's 'right to know' about B.C. Legislature investigation?

The right of the public to know what's happening in the seat of provincial power may seem like a basic part of democracy. But that right is often constrained by the whims of the people who hold the information.

Mystery around investigation into legislature officials fits pattern that sees public left in dark

Clerk of the House Craig James, centre, is escorted out of the legislature after he and B.C.'s Sergeant-at-Arms Gary Lenz were placed on leave. (Mike McArthur/CBC)

If the stakes weren't so serious, the almost total lack of information around the unprecedented unfolding of events at the B.C. Legislature this week would seem almost absurd.

Sure, the police and the two special prosecutors appointed to investigate the institution's two top administrative officials need the space to do their job. No one expects them to keep the media on speed dial.

But you'd think the veil of secrecy might stop short of the men being investigated.

Legislature Clerk Craig James and Sergeant-at-arms Gary Lenz appeared stunned as they were put on administrative leave and ushered out of the building Tuesday. Premier John Horgan said even he didn't know what the allegations were.

"I think we have a right to know what it is," James said to reporters.

'Information is the beginning of accountability'

Welcome to our world.

The right of the public — and the individual citizen — to know what's happening in the seat of provincial power may seem like it should be considered a basic part of democracy.

But it's only when you start asking questions that you realize how often that right is constrained by the whims of the people who hold the information.

Sean Holman, a freedom of information specialist who teaches at Mount Royal University, says government privacy prevents accountability (Sean Holman)

"The problem with this kind of privacy — which is actually secrecy — is that it prevents the public from holding to account not just these two officials who are under investigation, but also the police while they are doing this investigation," says Sean Holman, a former legislative columnist who now teaches journalism at Mount Royal University in Calgary.

"Information is the beginning of accountability. And if you do not have information, you cannot hold anyone or anything to account."

'A critical mass of wild speculation'

It's not the first time the legislature has had to deal with issues of privacy and secrecy when it comes to police. Most notably, a raid in 2003 led to court challenges with regards to the sealing of search warrants connected to an investigation into accusations of fraud and breach of trust in connection with the $1-billion sale of B.C. Rail.

At that time, the Liberal Party of Canada — which was fending off rumours of impropriety swirling around the affair — joined the media to plead for the warrants to be unsealed.

Bob Virk, left, and David Basi pleaded guilty to breach of trust in October 2010 in a case connected to the $1-billion sale of B.C. Rail. (Jonathan Hayward/Canadian Press)

"There is a critical mass of wild speculation and innuendo that is harmful to my client and the political process of this country," a lawyer for the party argued at the time. "Fundamental freedoms are being impinged."

The judge hearing the case ultimately released heavily edited versions of the search warrants, months after they were executed and well after the media had tried to piece together the story from scraps of publicly available information.

'A cornerstone value in our democracy'

More than a decade later, long after Dave Basi and Bob Virk pleaded guilty to breach of trust, British Columbians are still in the dark about critical parts of the story.

B.C.'s auditor general sued in 2013 to lift the secrecy around the province's decision to cover legal costs for the two men, estimated at $6 million. He lost.

The case turned on the rights attached to solicitor-client privilege.

Former B.C. Auditor General John Doyle went to B.C. Supreme Court in a bid to lift the secrecy around the province's decision to cover legal costs for Dave Basi and Bob Virk. (CBC)

"Solicitor-client privilege is not a lawyer's 'trick' to avoid proper scrutiny," wrote B.C. Supreme Court Justice Robert Bauman.

"It would be wrong to conclude that the result in this case represents the triumph of secrecy over transparency and accountability. It rather represents the reaffirmation of a principle which is a cornerstone value in our democracy."

No matter who foots the lawyer's bill.

Holman is currently on sabbatical and writing a history of government secrecy in Canada.

He's got his work cut out for him.

"I think one of the principal reasons why the news media in this country has struggled so much, especially in comparison with the American media is because of our lack of information," he says.

"We only have the information for the most part that our public officials want us to have. That's not a very sound basis for a democracy and it's certainly not a sound basis for a vibrant news media ecosystem."

Proof — not just reassurance

We're used to hearing politicians talk. But mainly about the subjects of their choosing.

If you cover the courts, by contrast, you're used to the slow-motion extraction of information. Beyond publication bans, even something as seemingly innocuous as a so-called agreed-statement of facts can often only be obtained through court order.

Robert Riley Saunders is being sued as part of a proposed class action lawsuit which claims the social worker stole money from vulnerable First Nations teens. (Facebook)

Basically, it's open if you're lucky enough to be there in person, otherwise fill in a form and we'll decide what you have the right to know.

So when the worlds of government and law collide, the results can be jarring.

Take a lawsuit filed earlier this month against the Ministry of Children and Family Development alleging fraud by a social worker accused of forcing dozens of vulnerable First Nations onto the street by stealing their funds.

A court order prevented the release of virtually all information about the case, even to lawyers. A publication ban has since been lifted, so the government has put out its version of events.

But the file itself is still sealed, meaning the public has no way to independently gauge a situation that has the makings of a major scandal. Remember — dozens of children.

Or how about another case involving a bid by the Public Guardian and Trustee to take over the affairs of a young man who won a multi-million dollar settlement for abuse in the foster care system?

As the former representative for children and youth pointed out last week to CBC, court orders and publication bans are there to protect individuals. But we have to make sure they don't inadvertently shield authority from scrutiny.

No one wants to see an innocent person tried in the media. Just as no one wants to further victimize children who have already been let down by the system.

The right to be presumed innocent is sacrosanct. As is the need for the proper administration of justice.

One of the prosecutors in charge of the legislature investigation urged patience yesterday. The matter is being taken seriously.

But as Holman says, when it comes to the upholding of their rights, some people like proof — not just reassurance.

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