IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Representative for Children and Youth v. British Columbia (Children and Family Development),

 

2010 BCSC 697

Date: 20100514

Docket: 10-1956

Registry: Victoria

Between:

Representative for Children and Youth

Petitioner

And

Office of the Premier
Ministry of Children and Family Development,
Gordon Campbell, Premier of British Columbia, and
Mary Polak, Minister of Children and Family Development

Respondents

Before: The Honourable Madam Justice Griffin

Reasons for Judgment

Counsel for the Petitioner:

Frank Falzon, Q.C.

Counsel for the Respondents:

G. Copley, Q.C.

Place and Date of Trial:

Victoria, B.C.

May 13, 2010

Place and Date of Judgment:

Victoria, B.C.

May 14, 2010


 

Introduction

[1]             This is a petition brought by the Representative for Children and Youth (the “petitioner”) seeking to enforce her right to information under s. 10 of the Representative for Children and Youth Act, S.B.C. 2006, c. 29 (“RCYA”).  The respondents, the Office of the Premier and the Ministry of Children and Family Development (“MCFD”), oppose the petition proceeding.  At the commencement of the hearing of this petition, the Hon. Gordon Campbell, Premier of British Columbia, and the Hon. Mary Polak, Minister of Children and Family Development, were added as respondents by consent.  The style of proceeding has been amended accordingly.  All respondents (the “respondents”) advance the same positions.

Background to the Office of the Petitioner

[2]             The petitioner is an independent officer of the Legislature, appointed pursuant to s. 2 of the RCYA

[3]             The petitioner’s statutory mandate has three aspects: advocate for children; monitor and audit and make recommendations on the effectiveness and responsiveness of government services for children; and investigate and report on critical injuries and death of children.  This mandate is set out in s. 6 of the RCYA:

6  The representative is responsible for performing the following functions in accordance with this Act:

(a) support, assist, inform and advise children and their families respecting designated services, which activities include, without limitation,

(i)  providing information and advice to children and their families about how to effectively access designated services and how to become effective self-advocates with respect to those services,

(ii)  advocating on behalf of a child receiving or eligible to receive a designated service, and

(iii)  supporting, promoting in communities and commenting publicly on advocacy services for children and their families with respect to designated services;

(b) monitor, review, audit and conduct research on the provision of a designated service by a public body or director for the purpose of making recommendations to improve the effectiveness and responsiveness of that service, and comment publicly on any of these functions;

(c) review, investigate and report on the critical injuries and deaths of children as set out in Part 4;

(d) perform any other prescribed functions.

[4]             The RCYA was enacted following the April 7, 2006 Report of the Honourable E.N. (Ted) Hughes, Q.C., entitled the BC Children and Youth Review (the “Hughes Report”).  The objective and provisions of the RCYA closely followed recommendations made in the Hughes Report.

Background to the Petitioner’s Information Request

[5]             The petitioner requested information from the MCFD on March 5, 2010.

[6]              The information requested was in relation to proposed changes to a provincial government program, “Child in the Home of a Relative” Program (the “CIHR Program”), and its replacement by a new program, the Extended Family Program.  The CIHR Program had provided income assistance to a child’s relative where that child was being cared for by the relative instead of the child’s parent.  

[7]             The provincial government in a February 9, 2010 Throne Speech announced that it intended to “modernize and improve upon” the CIHR Program.  The MCFD announced the changes in a March 1, 2010 “Information Bulletin”, with the changes to take effect on April 1, 2010.

[8]             The petitioner requested the information for the purposes of conducting a formal audit of the CIHR Program pursuant to s. 6(b) of the RCYA.  The information she requested included any Cabinet submissions the MCFD may have prepared to support the proposed legislative changes.

[9]             The MCFD provided information that related to the subject matter of the petitioner’s request, but not any such Cabinet submissions.  It took the position that before it would provide the Cabinet submissions, the petitioner must first sign an agreement relating to any potential use of the information. 

[10]         The petitioner repeated her request for the Cabinet submissions on April 15 and 20, 2010.  She took the position that she could not agree to any conditions of receipt of the information.  Through her representative, she advised that:

Should the [petitioner] propose to make reference to the Cabinet materials, you will of course be provided an opportunity (within the bounds of the current administrative fairness timeframe for the CIHR Audit Report) to raise any concerns or comments.

[11]         The MCFD then directed the petitioner to make her request to Cabinet Operations.  By letter dated April 22, 2010, the petitioner made the request for this information to the Hon. Gordon Campbell, Premier, as head of the public body responsible for Cabinet Operations, the Office of the Premier.

[12]         By letter dated April 29, 2010, Allan Seckel Q.C., Deputy Minister to the Premier and Cabinet Secretary, replied to the petitioner’s request.  He suggested that the provision of the information first requires that “assurances...be given...that the information will be used specifically for the purpose intended and not disclosed other than when directed by Cabinet itself”.

[13]         On the same day, April 29, 2010, the Attorney General, introduced Bill 20, the Miscellaneous Statutes Amendment Act (3), 2010 (“Bill 20”).  Section 36 of Bill 20 would, if enacted, amend s. 10 of the RCYA and would attempt to do so retroactively, commencing March 30, 2007. 

[14]         In summary, the proposed amendment seeks to limit the petitioner’s right to information that she says currently exists under the RCYA. Specifically, it would limit her access to information to the documents which the respondents have yet to produce to her pursuant to her first request in March, 2010. She says the current law requires the respondents to produce the information to her regardless of any proposed amendments to the RCYA.

[15]         Bill 20 has progressed past first reading.  The Legislature is scheduled to sit again for three consecutive weeks starting Monday, May 17, 2010. This petition proceeding was heard on the Thursday before the Monday sitting of the Legislature, with this judgment rendered the next day.

[16]         The petitioner says that the information she has requested is necessary for her to perform her mandate and that she has a statutory right to obtain the information pursuant to s. 10 of the RCYA. 

[17]         The respondents say that they have offered to provide the information but only on certain terms that they consider reasonable.  These terms relate to the respondents’ desire to control the petitioner’s use of the information and include terms of confidentiality.  The petitioner finds the terms unacceptable and contrary to her mandate.

Section 10 of the RCYA

[18]         The provision of the RCYA which the petitioner relies on is s. 10.  It provides:

10(1) In this section, "officer of the Legislature" has the same meaning as in the Freedom of Information and Protection of Privacy Act, but does not include the representative.

(2) The representative has the right to any information that

(a) is in the custody or control of

(i)  a public body other than an officer of the Legislature, or

(ii)  a director, and

(b) is necessary to enable the representative to exercise his or her powers or perform his or her functions or duties under this Act.

(3) The public body or director must disclose to the representative the information to which the representative is entitled under subsection (2).

(4) This section applies despite

(a) any claim of confidentiality or privilege, other than a claim based on solicitor-client privilege, and

(b) any other enactment, other than a restriction in section 51 of the Evidence Act.

[19]         “Public body” has the same meaning as in the Freedom of Information and Privacy Act, R.S.B.C., 1996, c.165 [FOIPPA]: RCYA, s. 1.  This definition includes a ministry of the government of British Columbia, a “local public body”, and a long list of bodies set out in Schedule 2 to FOIPPA.  A “local public body” is defined as a local government body, a health care body, a social services body, an educational body, or a governing body of certain professions or occupations set out in Schedule 3.  The list of public bodies included in Schedule 2 of FOIPPA is even more extensive and numbers in the hundreds.  Included in this list is the Office of the Premier and Executive Council Operations.  Also included are such diverse public bodies as an Adoption Agency licensed under the Adoption Act, BC Film, BC Transplant Society, British Columbia Arts Council, British Columbia Housing Management Commission, First People’s Advisory Committee, Health Facilities Association of British Columbia, Office of the Public Guardian and Trustee, and Youth Program Committee, to name a small few.

[20]         The petitioner submits that in s. 10(4) the Legislature has clearly identified the only privileges with respect to information that can be asserted by a public body or director as against the petitioner.  The common law privilege known as “public interest immunity” or “Cabinet privilege” is not among them. 

[21]         Bill 20 proposes to amend s. 10 of the RCYA as follows:

36 Section 10 of the Representative for Children and Youth Act, S.B.C. 2006, c. 29, is amended

(a) by repealing subsection (1) and substituting the following:

(1) In this section:

"committee" includes a committee designated under section 12 (5) of the Freedom of Information and Protection of Privacy Act;

"officer of the Legislature" has the same meaning as in the Freedom of Information and Protection of Privacy Act, but does not include the representative. , and

(b) by adding the following subsection:

(2.1) Subsection (2) does not apply with respect to information that would reveal the substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees.

Issues

[22]         The crux of the respondents’ position is that the petitioner’s right to information in s. 10 of the RCYA is not a right that can be enforced by a court.  In other words, they say that the right is non-justiciable.  The respondents assert that the only forum available for resolving any dispute with respect to the petitioner’s right to information is the Legislature. 

[23]         If I accept the respondents’ argument that the petitioner does not have a justiciable remedy, the petition must be dismissed.   

[24]         However, if I conclude that the petitioner does have an enforceable remedy in court, there are a number of other issues that arise.  In general, these issues are whether the petitioner has a right to the requested information; whether the respondents have refused to produce that information; and if the answers to these questions are both affirmative, what remedy is available to the petitioner.  On this latter point, the petitioner is seeking declaratory relief and a mandatory order that the respondents produce the information (an order for “mandamus”).

[25]         In summary, the issues are as follows:

1.       Does the petitioner have an enforceable remedy in court, or is she limited to a legislative remedy if a party does not comply with s. 10 of the RCYA?

2.       Does the petitioner have a right to the requested information?

(a)      Is the information necessary to allow her to perform her functions under the RCYA?

(b)      Do the respondents have control or custody of the document?

(c)      Is there any privilege from production?

3.       Did the respondents refuse to produce the information?

4.       What sort of remedy is appropriate?

Issue #1 - Does the petitioner have an enforceable remedy in court, or is she limited to a legislative remedy if a party does not comply with s. 10 of the RCYA?

[26]         The respondents argue that the petitioner does not have an enforceable remedy in court and that she is limited to a legislative remedy if a party does not comply with s. 10 of the RCYA. The petitioner argues that she does have a justiciable remedy.

[27]         Both parties agree that this issue is one of statutory interpretation.  The question is whether the Legislature intended that the petitioner would be precluded from invoking the aid of the court to enforce her right to documents under s. 10 of the RCYA.

The Auditor General Case

[28]         In support of their argument the respondents rely on principles set out by the Supreme Court of Canada in Canada (Auditor General) v. Canada (Minister of Energy, Mines & Resources), [1989] 2 S.C.R. 49 [Auditor General]. In that case, the federal Auditor General indicated his request to a Crown corporation, Petro-Canada, for certain documents relevant to its audit of the purchase of Petro-Fina by Petro-Canada to ascertain whether that purchase represented “value for money”.  The Auditor General was of the view that it was entitled to the information pursuant to its right of access to documents in s. 13(1) of the Auditor General Act, S.C. 1976-77, c. 34.  Petro-Canada refused this request. As a result, the Auditor General advised the Governor General in Council to direct the officers of Petro-Canada to furnish the information, but the Governor General in Council declined to exercise its power to do so under s. 14(3) of the Auditor General Act. The Auditor General then sought to obtain the information through the judicial process.

[29]         The Supreme Court of Canada denied the application of the Auditor General for an order of mandamus. The order would have required the respondents (named Ministers of the Crown including the Minister of Energy, Mines and Resources) to provide certain documentation required for the Auditor General’s audit of the proposed Petro-Canada purchase. 

[30]         The Court stated the issue at the outset of its judgment at page 55:

What is really at issue in this case is the appropriateness of the Court assuming the role of arbiter in resolving a dispute between Parliament and a parliamentary servant, albeit of high rank.  Can, or should, the courts give the Auditor General access to (and therefore disclosure of) documents, including Cabinet documents, which the Governor in Council has denied him?  Are the Auditor General's demands ones which ought properly to be determined by the courts or by the House of Commons?  In other words, are the claims which the Auditor General seeks to invoke legally enforceable?

[31]         The Court’s analysis involved statutory interpretation of the Auditor General Act. The Court approached the issue in three stages: first, whether there was in fact a remedial provision in the Auditor General Act; second, whether it was Parliament’s intention for the statutory remedy to be the exclusive remedy; and third, if the remedy was intended to be exclusive, whether this remedy was an adequate alternative to a justiciable remedy.

[32]         In Auditor General, the asserted right at issue—access to information—was set out in section 13(1) of the Auditor General Act:

Except as provided by any other Act of Parliament that expressly refers to this subsection, the Auditor General is entitled to free access at all convenient times to information that relates to the fulfilment of his responsibilities and he is also entitled to require and receive from members of the public service of Canada such information, reports and explanations as he deems necessary for that purpose.

[33]         Although not explicitly in remedial terms, the Court found that section 7(1)(b) of the Auditor General Act could be characterized as a remedy for the right of access to information. That section read as follows:

The Auditor General shall report annually to the House of Commons

(b) on whether, in carrying on the work of his office, he received all the information and explanations he required.

[34]         The Court found the wording in s. 7(1)(b) “almost exactly paralleled” the wording in s. 13(1) with reference to “information and explanations”. The Court noted that s. 7(1)(b) envisaged that the entitlement of access might not be given, and obligated the Auditor General to report on such an eventuality. The Court concluded that there was a clear linkage between the entitlement of access to information in s. 13(1) and its corresponding remedy in s. 7(1)(b).

[35]         At the second stage of the analysis, the Court in Auditor General critically examined the entire statute. It found that s. 7(1)(b) reflected Parliament’s intent that Parliament itself would be “the final arbiter of any disputes over the Auditor General’s access to information” (at 100). 

[36]         This intent was reflected in

(a)      “The clarity of the linkage between the statutory right [to information] and the statutory remedy [for failing to provide it]” (at 99); and

(b)      “The extent to which the remedy is part of a comprehensive remedial code”, which in this case, demonstrated that s. 7(1)(b) is part of “a set of interlocking remedies” (at 100), including s. 14(3), which is a “persuasive indication that Parliament could not have intended s. 13(1) entitlements to be enforceable in the courts” (at 102):

14 (3) If, in the opinion of the Auditor General, a Crown corporation, in response to a request made under subsection (2), fails to provide any or sufficient information or explanations, he may so advise the Governor in Council, who may thereupon direct the officers of the corporation to furnish the Auditor General with such information and explanations and to give him access to those records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries access to which is, in the opinion of the Auditor General, necessary for him to fulfil his responsibilities as the auditor of the accounts of Canada.

[37]         Section 14 of the Auditor General Act provided that the Auditor General may request to obtain documents from a Crown corporation and that if it refused to comply, the Auditor General could advise the Governor in Council of the Crown corporation’s failure to respond to its request for information.  In neither s. 13(1) nor s. 14 of the Auditor General Act was there a corresponding duty upon the Crown corporation to provide this information.

[38]         Finding that Parliament did intend s. 7(1)(b) to be an exclusive remedy, the Court in Auditor General then inquired into the adequacy of the remedy, and therefore, the appropriateness of finding that the right in s.13(1) was non-justiciable.  The Court found that a political remedy was the most appropriate in that case because of the very nature of the Auditor General’s function, “a quintessentially Parliamentary function, namely, the oversight of executive spending pursuant to Parliamentary appropriations” (at 103):

In this case, it is reasonable to interpret s. 7(1)(b) as the Auditor General's only remedy for claimed denials of s. 13(1) entitlements not only because the text is conducive to such an interpretation but also because, in the circumstances, a political remedy of this nature is an adequate alternative remedy.  The Auditor General is acting on Parliament's behalf carrying out a quintessentially Parliamentary function, namely, oversight of executive spending pursuant to Parliamentary appropriations. Where the exercise of this auditing function involves the Auditor General in a dispute with the Crown, this is in essence a dispute between the legislative and executive branches of the federal government.  Section 7(1)(b) would seem to be the means by which Parliament itself retains control over the position it wishes to take in such a dispute.

Application of the Auditor General Case

[39]         According to the analysis in Auditor General, the first stage is to determine whether the RCYA provides for any statutory remedy for breach of the obligation to produce information to the petitioner pursuant to s.10.

[40]         The respondents submit that s. 20(2)(b) of the RCYA provides a similar but “even more effective” reporting mechanism than existed in the Auditor General case. Section 20 provides as follows:

20  (1) The representative may make a special report to the Legislative Assembly if the representative considers it necessary to do so.

(2) A report made under subsection (1) may contain the following:

(a) recommendations for

(i)  the public body, or the director, responsible for the provision of a designated service, or

(ii)  any other public body or director the representative considers appropriate;

(b) a report on the level of compliance with previous recommendations made by the representative under this Act to

(i)  the public body, or the director, responsible for the provision of a designated service, or

(ii)  any other public body or director;

(b.1) a report on the provision of a designated service for children in different geographic, racial, cultural or religious communities of British Columbia;

(c) any other matter the representative considers necessary.

(3) The representative must deliver the special report to the Speaker, and the Speaker must lay the report before the Legislative Assembly and the standing committee as soon as possible.

[41]         Section 20 makes reference to the petitioner’s express power to issue a special report addressing its power to make recommendations and report on the “the level of compliance with previous recommendations made by the representative”. The respondents assert that this section, together with section 20(2)(c), permits the petitioner to report on “any other matter the representative considers necessary”, and therefore gives the petitioner “almost limitless scope” for complaint to the Legislature.

[42]         The petitioner argues that s. 20(2)(b) is not an appropriate remedy because she is not in this court asserting a right to compel compliance with her recommendations; rather, she is here asserting the right to obtain the information necessary even to make those recommendations.  Further, in contrast to the legislation at issue in the Auditor General case, here the RCYA expressly states not only that the petitioner has the “right” to the information, but also that the public body “must disclose to the representative the information to which the representative is entitled”: s. 10(2) and(3).  In other words, here the RCYA expresses both a right and a separate duty.

[43]         Section 20 stands in sharp contrast to the remedy provided in s. 7(1)(b) in the Auditor General case.  The wording of s. 20 as a whole indicates that the special report power concerns reports on recommendations to the public body and on the level of compliance with those recommendations; it does not concern the right to obtain the information necessary to even make those recommendations. 

[44]         I am not persuaded that s. 20 of the RCYA provides a statutory legislative remedy for the asserted right of access to information and breach of duty to provide the information under s. 10 of the RCYA

[45]         In the event I am wrong on this point and the ability to make a special report under s. 20 of the RCYA is some type of remedy for a breach of s. 10 of the RCYA, I will go on to the second stage of the analysis to consider whether there is an intention in the RCYA for this remedy to be exclusive.

[46]         First, the linkage between the right of access to information under s. and its alleged remedy in s. 20 is far from clear.  Unlike in Auditor General there is no similarity in language between the two sections in the RCYA.  Section 10 refers to the petitioner’s “right to information” and states that a public body or the director “must disclose” that information.  Nowhere in s. 20 is this wording paralleled.

[47]         The respondents assert that the broad wording of s. 20(2)(c) should be read to include a remedy for failure to provide information.  Even if this is so, the linkage between the two sections is not direct and requires an inference to be drawn that is not supported by wording of the RCYA as a whole.

[48]         The comprehensive remedial code in the RCYA is also distinguishable from that in Auditor General. In Auditor General, other provisions of the statute provided for remedies by the Governor in Council.  Section 14 of the Auditor General Act envisaged that the Crown corporation may not provide the requested information, and in such a case, the Governor in Council may order the Crown corporation to comply with the Auditor General’s request.

[49]         By contrast, in the RCYA, s. 23(5) contemplates the end of the remedial ladder to be the court, not the Legislature (or Governor in Council).  Although this section deals with the petitioner’s duty of confidentiality, it is evidence that it was never the intention of the Legislature to “oust the courts” in favour of a legislative remedy, if the petitioner was faced with a party refusing to comply with the RCYA.  This section makes it clear that the Legislature intended that the petitioner would be able to enforce non-compliance with the RCYA in court. Section 23(5) reads as follows:

23(5) The representative and a person appointed, employed or retained by the representative under section 7 (1) or (4) or 15 must not give or be compelled to give evidence in a court or in proceedings of a judicial nature in respect of any matter coming to their knowledge in the exercise of powers and the performance of functions and duties under this Act, except

(a) to enforce the representative's powers of review and investigation,

(b) to enforce compliance with this Act, or

(c) with respect to a trial of a person for perjury.

[50]         Subsection (a) of s. 23(5) of the RCYA contemplates a justiciable remedy for situations of non-compliance with the petitioner’s powers of review and investigation.  One mechanism for this procedure is set out in sections 14 and 14.1 of the RCYA.  As the respondents point out, ss. 14 and 14.1 only refer to the petitioner’s powers of investigation and review, not to the right of access to information or to breaches of s.10.

[51]         Section 14 reflects a new drafting convention – a convention associated with the repeal of the former Inquiry Act, R.S.B.C. 1996, c. 251 - whereby statutory tribunals given traditional summons powers are now required to go to court rather than enforcing the orders themselves pursuant to the old sections 12, 15 and 16 of the Inquiry Act formulation: see Administrative Tribunals Act, S.B.C. 2004, c. 45, ss. 34, 49.  This drafting convention pertaining to summons powers does not support the inference that the Legislature intended to prevent the petitioner from relying on any other judicial remedy for non-compliance with the RCYA.

[52]         The inclusion of subsection (b) in s. 23(5) demonstrates that the Legislature contemplated the petitioner’s ability and need to access the court to enforce its powers and rights beyond its powers of investigation and review.  This subsection goes beyond the petitioner’s powers of review and investigation described in s. 23(5)(a).  The broad wording — “to enforce compliance with this Act”—includes the power to enforce compliance with s. 10 of the RCYA.  I find that the inclusion of s. 23(5)(b) is strong evidence of the Legislature’s intention to not preclude the petitioner’s access to court to obtain a remedy for breaches of section 10 of the RCYA

[53]         As held in Auditor General at page 91:

… It is the prerogative of a sovereign Parliament to make its intention known as to the role the courts are to play in interpreting, applying and enforcing its statute.

[54]         In this case, I conclude that the Legislature clearly has expressed its intention. Its intention is not to make itself the exclusive forum for the resolution of disputes in the RCYA; its intention is quite the opposite.  The weak linkage between the right and the asserted remedy, and the wording of other remedial provisions in the RCYA (s. 23(5)(b)) clearly demonstrate that it is the Legislature’s intention that the petitioner is entitled to a justiciable remedy.

[55]         Despite my conclusion on this point, I will still go on to consider the adequacy of the legislative remedy, if it exists as asserted by the respondents.

[56]         The respondents say that the way the legislative remedy would work, in the event that a party did not comply with the petitioner’s demand for documents pursuant to s. 10 of the RCYA, is that the petitioner would have to deliver a special report to the Speaker, who must then lay the special report before the Legislative Assembly and the Select Standing Committee on Children and Youth: s. 20(3) of the RCYA.  Presumably this special report would be a complaint by the petitioner that a public body has not complied with the petitioner’s demand for information pursuant to s. 10 of the RCYA.  While the RCYA does not say what would then happen, the respondents suggest that the next course of action would be up to the Legislative Assembly.  If the Legislative Assembly wanted to, it could compel a person to attend before it and to produce documents: ss. 2, 3 and 5 of the Legislative Assembly Privilege Act, R.S.B.C.1996, c. 259.

[57]         The respondents submit that it would be up to the Legislative Assembly to determine whether the nature of the information falls within a proper s. 10 demand, and whether there has been non-compliance with that demand.  Presumably this would also mean that the Legislative Assembly would have to determine any claim for solicitor-client privilege that may be asserted as a basis for non-compliance with the petitioner’s demand for information.  I must observe that these are tasks routinely undertaken by the courts, but seldom, if at all, undertaken by the Legislature.

[58]         In this case, the respondents argue that the legislation establishing the mandate and the role of the petitioner is analogous to the legislation which established the mandate and the role of the Auditor General in the Auditor General case.  For this reason they argue that the legislative remedy they outline is adequate.  They say that the petitioner, like the Auditor General, is an officer of the Legislature.

[59]         The Auditor General case did not turn on any rule that an officer of the Legislature can never assert the right to information in a court of law. It was a highly exceptional case – a departure from a “fundamental principle”.   The Court made this abundantly clear at page 110 of its judgment:

…the holdings in this case should be viewed as limited to the interpretation of a unique statute as informed by the particular role played by the Auditor General.  The above analysis shall not be taken to detract from the fundamental principle that the courts should not readily decline to grant remedies for rights recognized by the laws of Canada. 

[60]         I am not persuaded that the legislative remedy described by the respondents is an adequate remedy.  The respondents’ interpretation of the RCYA is not consistent with the legislative intention behind the creation of the office of the petitioner, as evidenced by the petitioner’s statutory functions and mandate.

[61]         The text of the Hughes Report and the comments in the Legislature on introduction of the office of the petitioner emphasized the need to restore public confidence in the child welfare system. The creation of the office of the petitioner was intended to help achieve this through the petitioner’s independence, authority to collect information, and public reporting process.

[62]         For example, the following recommendations were contained in the Hughes Report.

[63]         Recommendation 1 proposed the creation of the Representative for Children and Youth (p. 21):

I am proposing a new body—a Representative for Children and Youth—that will build on the strengths of its predecessors and on the lessons learned from their experience.  It will resemble in significant respects the current Office for Children and Youth, but it will have the independent status that was held by the Advocate, and will perform some of the functions that were carried out by the [Children’s] Commission.  Further, its reporting process will be designed to help depoliticize the debate around child welfare issues.

The current Office for Children and Youth has performed its duties independently, but if public confidence in the child welfare system is to be restored, the independent body that speaks for children and youth must have a status that puts that independence beyond question. That is why I am recommending that the new Representative for Children and Youth be an independent Officer of the Legislature, with the same standing as the Ombudsman and the Auditor General.

[Emphasis added.]

[64]         Recommendation 4 described the function that would later be reflected in s. 6(b) of the RCYA (p. 35):

That the Representative for Children and Youth be mandated to monitor, review, audit and investigate the performance and accountability of the child welfare system, but that this mandate be reviewed in five years and revised as appropriate at that time.

[65]         Recommendation 4 emphasized that this function requires the petitioner to report directly to the public regarding the Executive’s management of the child welfare system (p. 34):

Monitoring the Child Welfare System

Most government ministries are not subject to formal oversight by an external body and it may be that in the future, there will be no need of an independent office for children. The Ministry’s own performance measurement, quality assurance programs, and public reporting may in themselves be sufficient to assure British Columbians that vulnerable children and youth are being protected as they should be.

But at this time, to meet public concerns, an external agency remains necessary as the Ministry continues to enhance its ability to measure, monitor and report on its own performance. The public needs to know that the child welfare system is accountable for what it does and how it does it…

[66]         As was pointed out above, the role to be given to the petitioner was an exceptional role. 

[67]         The RCYA received First Reading on May 4, 2006.  In introducing the Bill, the Attorney General stated as follows:

I am pleased to introduce Bill 34. The purpose of this bill is to establish authority for the Legislative Assembly to appoint the representative for children and youth as an independent officer of the Legislature to improve services for children, youth and families in British Columbia.

This bill follows through on the recommendations provided by the Hon. Mr. Ted Hughes in his recent report to government. Consistent with those recommendations, this new office builds upon the strong foundation laid by the child and youth officer and other relevant offices by creating an expanded and improved framework that will provide better and expanded advocacy opportunities to foster improvements to our system of services for children, youth and their families.

It will provide for the independent review and investigation of deaths and critical injuries that occur within the child welfare system, and it will provide for a strong system of accountability to the public through independent public reporting. Under this new model, the representative will have the full discretion to advocate for children and will be able to initiate reviews and investigations and to release reports independent from government and uniquely focused on the child welfare system.

[Emphasis added.]

[68]         The RCYA received Second Reading on May 17, 2006.  On that occasion, the Attorney General stated as follows in Hansard (pp. 4960-61):

The representative's role covers three areas, as recommended in the Hughes review: (1) the advocacy role — to support, assist, inform and advise children and their families concerning designated services; (2) the monitoring role — to increase accountability by monitoring, reviewing and auditing the ministries and other public bodies responsible for designated services; and (3) the review and investigation role — to review, investigate and report on children's critical injuries or deaths in circumstances as outlined in the bill.

...

The provisions described respond directly to Hughes's recommendations.

...

They respond to recommendation four, which specifies that the representative's mandate should include monitoring, reviewing, auditing and investigating performance and accountability within the child welfare system.

...

To enable the representative to carry out review and investigation responsibilities, the bill requires ministries and other entities to give the representative information about the critical injury or death of any child receiving designated services within the previous year. The representative also has a right to any information held by any public body or bodies that is necessary to carry out the office's roles, functions and duties as Mr. Hughes advocated in recommendation 54.

As emphasized in Mr. Hughes's review, this bill gives the representative the power to recommend — rather than order — change. The reporting requirements outlined in the bill in the form of annual and special reports give the representative a mechanism to inform the children's standing committee, the Legislature and the public of the recommendations made to the ministries or to other public bodies and their compliance with prior recommendations.

This bill is a testament to this government's commitment to make changes that serve the interests of British Columbia's children.

[Emphasis added.]

[69]         Reading the RCYA as a whole, it is clear that the Leglislative intention was to provide the petitioner with structural independence from the Executive Branch.  In contrast to the officer in the Auditor General case, the petitioner is not simply a “political servant of the [Legislature] who carries out [its] function on its behalf”.

[70]         The functions and mandate of the petitioner as set out in the RCYA are inextricably linked to restoring and maintaining confidence of the public in the functioning of the child welfare system.  The RCYA grants the petitioner the powers and rights to access information necessary for the petitioner to perform her mandate. A “special report” to the Legislature that a public body has breached the statute by not providing the petitioner with information would not meaningfully enforce the petitioner’s right to access that information.  The right in this case can only adequately be enforced by recourse to the courts.

[71]         It has to be kept in mind that the petitioner has the right to obtain information from all “public bodies”, which is broadly defined.  It is of course fair to comment that many of the listed “public bodies” are unlikely to be approached by the petitioner for information.  Nevertheless, many public bodies outside of ministries of the government could have information relevant to the petitioner’s role and be the subject of a s. 10 request for information.  It cannot have been the intention that if any of these public bodies defied the petitioner’s request for information pursuant to s. 10, contrary to their duty to provide the information, that the remedy would be to have the petitioner report on this to the Legislative Assembly and leave it to the Legislative Assembly to determine whether or not the information should be provided.  This would render the s. 10 right to obtain the information practically meaningless, and would detract from the important business of the Legislature. It would be such an ineffective remedy that it would seriously undermine the ability of the petitioner to perform her wide mandate.

[72]         Nor can it be contended that only in a situation where the s. 10 request is directed at a government ministry and Cabinet information falls within the scope of the request, will the exclusive remedy for failure to produce the information be to report to the Legislature.  The RCYA does not suggest there is one rule for those in high office, and another rule for everyone else.

[73]         The rule of law was discussed by the Supreme Court of Canada in Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 70, where the Court stated:

...The rule of law, as observed in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142, is "a fundamental postulate of our constitutional structure". As we noted in the Patriation Reference, supra, at pp. 805-6, "[t]he 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.

[74]         In conclusion on this point, the general rule in Canada is that legal rights are enforceable by courts.  The rule of law is a fundamental premise of our legal and democratic system.  It means that no one is immune from the law or excluded from the benefit of the law.  For this reason, the notion that anyone, especially persons holding high public office, can breach their statutory duties without being accountable to a court of law is a highly exceptional proposition. The RCYA does not bear an interpretation that ousts the court from its ordinary role in providing a remedy for breach of the law.

Issue #2 - Does the petitioner have a right to the requested information?

(a) Is the information necessary to allow her to perform her functions under the RCYA?

[75]         One of the mandates of the petitioner is to “monitor, review, audit and conduct research on the provision of a designated service by a public body or director for the purpose of making recommendations to improve the effectiveness and responsiveness of that service, and comment publicly on any of these functions”: s. 6(b) of the RCYA.

[76]         The petitioner’s mandate under s. 6(b) is exercised with reference to “designated services” as defined in the RCYA and the Representative for Children and Youth Regulation, B.C. Reg. 103/2007. 

[77]         As noted above, in pursuit of this mandate, the petitioner has undertaken an audit of the CIHR Program.  It is not contested that this is a “designated service” within the petitioner’s mandate.

[78]         Also as noted above, the CIHR Program provides income assistance to a child’s relative where that relative, instead of a child’s parent, is caring for the child.

[79]         The CIHR Program has existed in British Columbia for several decades.  Approximately 4500 children, 40 to 50 percent of whom are aboriginal children, are being funded under the CIHR Program. 

[80]         Until December 2007, the CIHR Program was funded and administered as an income assistance program by what is now the Ministry of Housing and Social Development (“MHSD”), and did not require any screening or assessment of whether the persons receiving funds would provide a safe and suitable home for the child in question. 

[81]         The Government introduced a screening process in December 2007, to be administered by the MCFD.  In August 2008, formal responsibility for the CIHR Program was shifted to MCFD, though MHSD continued to be payor.

[82]         The purpose of the petitioner’s audit is to determine the effectiveness and rigour of the CIHR Program screening process in view of concerns brought to the attention of the petitioner that the process and its administration have not been effective in reducing the risks to many vulnerable children and youth, and to make recommendations arising from the audit findings.

[83]         The information requested by the petitioner, from the MCFD, concerns the subject matter of the government’s decision to cancel the CIHR Program and replace it with another program, the Extended Family Program.  In response to the petitioner’s request, the MCFD did produce some information on this subject matter.  The only information it has not produced is that information which may fall into the category of submissions to Cabinet concerning this subject matter. The respondents say that the only reason this has not been produced is because the petitioner will not agree to their terms of production.

[84]         The respondents filed no evidence to suggest that the subject matter of the petitioner’s request is outside her mandate.  I find that the requested information falls within the mandate of the petitioner.  It is necessary information to enable her to exercise her powers and perform her functions or duties under the RCYA, and therefore she has a right to the information pursuant to s. 10(2) of the RCYA.

(b) Do the Respondents have control or custody of the document?

[85]         The letter from the Minister of the MCFD, the respondent Mary Polak, to the petitioner, dated April 22, 2010 stated:

The Ministry has provided you the information that is within our authority to provide.   [Emphasis added.]

[86]         The letter from the Minister went on to state that the release of Cabinet materials is a matter properly dealt with through Cabinet Operations. 

[87]         This letter was an acknowledgment that the MCFD had custody of the requested Cabinet submission(s) but was an assertion that it did not have control of it in the sense that it did not have authority to produce it without the approval of Cabinet Operations.

[88]         The respondents make this point at paragraph 37 in their submissions.  They argue as follows:

...A public body may have a cabinet related document in its custody but it may not be under its control because of internal government controls over the use and disclosure of cabinet documents.  Put another way, only Cabinet has the authority to waive privilege over Cabinet documents and so the public body may be under an obligation to refer the Representative to Cabinet Operations as in this case.  This kind of internal government dispute again is highly appropriate for the Legislature to resolve and quite unsuitable for the court to resolve.

[89]         I am not persuaded by the respondents’ submissions.  Section 10(2)(a) refers to information that is in the custody or control of a public body.  It does not require the information to be in the custody and control of the public body.  The respondents have never taken the position that they did not have custody of the requested information. As such, the MCFD has an obligation under s. 10(3) to disclose the information to the petitioner.  No one has suggested that the Office of the Premier and Executive Council Operations did not have both custody and control of the requested information.  In fact, the MCFD referred the petitioner to the Office of the Premier and Executive Council Operations in response to the petitioner’s further requests for access to the information.  Clearly, this indicates that the Office of the Premier and Executive Council Operations had both custody and control of the requested information.  The obligation on both of these public bodies is mandatory: the public body “must disclose to the representative the information”. 

(c) Is there any privilege from production?

[90]         The respondents suggest that some or all of the information requested by the petitioner, namely the submissions to Cabinet, fall within a category of privilege known as “public interest immunity”, or Cabinet privilege.

[91]         The RCYA does not exclude documents covered by Cabinet privilege from the mandatory obligation of a public body to produce information to the petitioner, under s. 10.  On the contrary, s. 10(4) makes it clear that the obligation to produce information to the petitioner applies despite any claim of confidentiality or privilege, other than a claim based on solicitor-client privilege.

[92]         This could not have been an oversight.  As pointed out by the respondents, there have been extensive detailed internal Cabinet procedures and protocols in place amongst members of the provincial government and their staff, since at least 1996, which are designed to reinforce and to prevent waiver of Cabinet privilege. Members of government were well aware of the importance of Cabinet privilege when the RCYA was enacted.

[93]         The Legislature has created in other legislation express restrictions on production of information that may fall within Cabinet privilege.  For example, s. 18(1) of the Ombudsperson Act, R.S.B.C. 1996, c. 340, states that the ombudsperson must not require any document to be produced if the Attorney General certifies that producing the document might “result in or involve the disclosure of deliberations of the Executive Council”. 

[94]         Another example is s. 12 of the FOIPPA, which prohibits public bodies from releasing information that would “reveal the substance of deliberations of the Executive Council or any of its committees”, except in certain circumstances.

[95]         A key impetus for the RCYA was a stated desire to increase public accountability by giving powers to a person independent of government.  While the petitioner has the right to obtain information under s. 10 of the RCYA, the RCYA also imposes confidentiality obligations on the petitioner, pursuant to s. 23.  It can be deduced from the whole of the statute that the Legislature must have concluded that the mandate of the petitioner, including protection of children, was a higher public policy goal than protecting Cabinet privilege.  At the same time, the Legislature must have considered at the time that the confidentiality provisions within the RCYA applicable to the petitioner were a sufficient safeguard and balancing of the public interest.

[96]         The respondents have never suggested that the information requested by the petitioner, which is the subject of this proceeding, is subject to solicitor client privilege.  As such, there is no privilege from production of the information to the petitioner.

Issue #3 - Did the respondents refuse to produce the information?

[97]         The respondents argue that this case is not about document disclosure at all. In fact they assert that they have always been willing to disclose the information and documents requested by the petitioner.  The respondents argue that what this case is really about is the use of the disclosed information and documents by the petitioner once she receives the information.  The respondents say that they take issue with the fact that the petitioner would not agree to the terms they wanted with respect to her subsequent use of the information.

[98]         I do not agree with the respondents that this case is not about document disclosure.  To the contrary, this is exactly what this case is about. The petitioner seeks access to the documents.  The petitioner asserts that the RCYA provides her with a right to this information, that it confers a corresponding duty on the respondents to provide this information, and that there has been a prior demand and refusal to provide it.

[99]         Certainly the petitioner does not request any order relating to the use or publication of these documents once she gets access to them.  She takes the position that the RCYA already sets out the use she may make of the documents.  She has not yet made a decision as to how she will use the documents, as obviously this must await her receipt and review of them.  She takes the position that the respondents are asking her to fetter her own discretion, in contravention of her statutory mandate.

[100]     However, the petitioner says that if the respondents are concerned that in the future, her interpretation of the RCYA will be different than their own, on the question of the use she can make of the information, then they have their own remedies that they can seek.  What they cannot do is refuse to fulfil their obligation to produce the information, and withhold the information until the petitioner agrees to their terms of production.

[101]     I conclude that the petitioner’s position is legally correct.

[102]     The respondents have several other avenues of relief if they are not satisfied that in the future the petitioner will limit her use of the documents to what is permitted by the RCYA, or to a use that conforms with the respondents’ view of what is appropriate.

[103]     If the respondents are concerned that the petitioner will act beyond her statutory powers set out in the Act including with respect to maintaining confidentiality with respect to the Cabinet documents, then the more appropriate avenue to obtain the relief they seek is by way of petition under s. 2 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA], requesting relief by way of prohibition.  Section 2 of the JRPA provides that an application for judicial review may be made in any case where the applicant would be entitled to relief in the nature of mandamus, prohibition or certiorari or would be entitled to a declaration or injunction related to the exercise or purported exercise of a statutory power.  The availability of the remedies of prohibition, certiorari and mandamus are determined by the common law, not the statute.  Prerogative remedies are available to force a government delegate to conduct herself within the confines of a statutorily conferred power.

[104]     Further, as another alternative, the respondents could bring a petition pursuant to Rule 10(b) seeking a declaration as to the meaning of the confidentiality provisions of the RCYA as applied to information produced to the petitioner.

[105]     What the respondents cannot lawfully do is engage in a pre-emptive remedy by refusing to produce the requested information to the petitioner. 

[106]     In short, I conclude that the public bodies, the MCFD and the Office of the Premier, have refused to produce the information requested by the petitioner.   

Issue #4 - What sort of remedy is appropriate?

[107]     The petitioner seeks two forms of relief.

[108]     First, the petitioner seeks a declaration that the respondents have failed to comply with their statutory duty under s. 10(3) of the RCYA to provide her with the Cabinet submission(s) that she requires pursuant to her statutory right in s. 10 of the RCYA in order to complete an audit of the Child in the Home of a Relative Program.

[109]      It is clear from my analysis above that I have concluded that the petitioner had the right to request the information and that both the MCFD and the Office of the Premier have refused to produce that information.  I therefore grant the declaratory relief, declaring that both the Ministry of Children and Family Development and the Office of the Premier have failed to comply with the statutory duty pursuant to s. 10(3) of the RCYA to provide the petitioner with any and all Cabinet submissions associated with the CIHR Program and its replacement by the Extended Family Program.

[110]     Second, the petitioner requests an order in the nature of mandamus to compel the respondents to forthwith comply with their legal duty to provide the petitioner with the Cabinet submissions as set out in s. 10(3) of the RCYA.

[111]     The general requirements for an order of mandamus are that there is a clear public legal duty to act, the duty is owed to the applicant, there is a clear right to performance of that duty, there has been a prior demand to exercise the duty and reasonable time to comply, and a refusal to comply: Apotex Inc. v. Merck & Co., [1994] 1 F.C. 742 at 766-769 (C.A.).

[112]     Mandamus is not generally available to compel the exercise of a discretionary duty, however, it may be used to force the decision maker to act in a way that is not unreasonable and which takes relevant factors into account: Apotex Inc., supra.

[113]     As is clear from my analysis above, there was a clear statutory duty on the part of the public bodies the MCFD and the Office of the Premier to produce the information requested by the petitioner pursuant to s. 10(3) of the RCYA.  The petitioner also has a clear right to performance of that duty, pursuant to s. 10(2) of the RCYA.  Pursuant to s. 10(4) of the RCYA, the petitioner’s right to that information and the respondents’ duty to provide that information applies despite any claim of confidentiality or privilege, including cabinet privilege. There was also reasonable time for the respondents to comply with their duty.

[114]     I find that the petitioner has made a clear demand for performance of the duty, and there has been a refusal to exercise the duty.  The personal respondents have the authority to direct the public bodies in question to perform the duty to produce the information, and have refused to do so.

[115]     The RCYA does not provide any discretion to a public body in the fulfillment of the statutory duty to produce information to the petitioner.

[116]      In conclusion, I find that the requirements of an order for mandamus have been established by the petitioner in this case.  Such an order will go against the personal respondents.

[117]     The respondents argue in the alternative that if this court finds that the requirements for mandamus are satisfied it should nevertheless impose conditions on the award of mandamus with respect to the petitioner’s use of the Cabinet documents.  They point to the provisions in s. 23 of the RCYA which deal with the petitioner’s duty of confidentiality, specifically s. 23 (4) which provides:

The representative and a person appointed, employed or retained by the representative under section 7 (1) or (4) or 15 must, except as specifically authorized under this Act, maintain confidentiality in respect of all matters that come to their knowledge in the exercise of powers and the performance of functions and duties under this Act.

[118]     This brings us back full circle, to the main point of the respondents.  I have already concluded that the respondents do not have the right to demand conditions of the use of the information that they are required to produce pursuant to s. 10 of the RCYA.  This case is not about the petitioner’s future use of the information.  The respondents are free to seek other remedies if they wish to determine the petitioner’s future use of the information.

[119]      The petitioner is already governed by the provisions of the RCYA with respect to the use of the information. The order in the nature of mandamus will be made without strings attached.

Conclusion

[120]     In conclusion, I make the following orders:

1.       A declaration that that the respondents the MCFD and Office of the Premier have failed to comply with their statutory duty under s. 10(3) of the RCYA to provide the petitioner with the Cabinet submission(s) associated with the CIHR program and its replacement by the Extended Family Program as announced by the MCFD on March 1, 2010 and as requested by the petitioner in her March 5, 2010 letter to the MCFD and in her April 22, 2010 letter to the Office of the Premier;

2.       An order in the nature of mandamus compelling the personal respondents to direct the MCFD and the Office of the Premier to comply with the legal duty to provide to the petitioner the Cabinet submission(s) referred to in paragraph 1 forthwith.

[121]     I am advised that the requested information is in the possession of counsel for the respondents.  I expect therefore that the information will be provided to the petitioner, through her counsel, immediately.

[122]     The petitioner is entitled to the costs of this proceeding, subject to further submissions if necessary.

“S. Griffin J.”
The Honourable Madam Justice S. Griffin