Comment: Government should release the full McLachlin report

It seems like old times out there in beautiful B.C. I confess to having a sense of déjà vu on hearing the news of how two permanent officers of the B.C. legislative assembly had been treated over the past many months.

Government was very clever. Teetering on the edge of the green, the government was very adroit to putt in the big name. After all, if a retired chief justice can’t unearth the facts in the sliver of time allotted to her, who else?

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When Beverley McLachlin’s review was announced, the government house leader said the report would be made public. On that basis, she prepared her report, clearly competent to prepare a report that is to be made public, given she served on Canada’s highest court for 17 years. But when the report was completed, government reneged on its promise. Parts of the report had been redacted. Does Robert Mueller come to mind?

Let’s refresh our memories. What happened before the appointment? The Speaker created a unique position for a special adviser: a liaison between his constituency and the Speaker’s office. The special adviser conducted an undercover “investigation” into the two long-serving permanent officers, without notice to them.

To my knowledge, the special adviser had no investigative legal authority. The results formed the basis of the Speaker’s first public report alleging misconduct, released two months after the permanent officers were abruptly escorted out of the legislature.

How is it possible that this theatrical display occurred at the legislative assembly, the very place responsible for overseeing the promulgation of provincial law, ignoring the rules of natural justice and rule of law?

This misadventure took me back to 1998. What most folks don’t know about is the clandestine way in which my term as ombudsman ended. The mandate of the all-party committee, chaired by the NDP government and deputy chaired by the B.C. Liberal opposition, was to consider my re-appointment or select a new ombudsman, in accordance with the law.

Here’s where the process went astray: Government committee members refused to open my application package. It was curious no one suspected anything. The political parties were particularly polarized at the time, and as a result, the process was protracted. I would remain as ombudsman until July when the new person was selected and available.

Six months to complete pending public reports, including confinement of Doukhobor children, forest-fire prevention and Workers’ Compensation Board. In early 1999, three reports were tabled, leaving one slotted for June.

I recall the essentials of that last report. It involved the Ministry of Environment which had proclaimed a prime piece of privately owned real estate as “special waste contamination,” thereby rendering the otherwise valuable land worthless.

The landowner, Darcy McPhee, an honourable and decent man, operated businesses on the property. The “special waste” designation resulted from pollution by a utility, from which the family had purchased the land years before, unaware of the contamination.

After the ministry’s designation, the owner was estopped from using or developing his land. Remediation legislation (polluter pay) was on the horizon but delayed. Ultimately, the ministry purchased the land, but significantly reduced the sale price, charging the owner the cost to remediate. To this day, the property has never been remediated.

The report was not about the polluter; it was about whether the ministry had treated McPhee fairly.

So when late on a Friday afternoon at the end of May, someone in the premier’s office had the decency to call to alert me that I should pack up because on Monday cabinet would remove me from office one month in advance of my end date, I was shocked. Shocked an independent officer would be removed without notice to the legislative assembly.

Why tell this story now? During my term as your ombudsman, I saw how truly devastating the consequences can be to a person’s well-being when denied access to a fair and just investigative process. After the McLachlin report was completed, the government tabled a motion in the legislature, which passed, to seal all of the evidence submitted during her review, and released a redacted report. The motion to seal the evidence may be justifiable, but not the redactions to the McLachlin report.

British Columbians are entitled to see the complete McLachlin report. To do otherwise does a disservice to its author, the public and the permanent officers.

Government did the right thing in taking this matter seriously with the appointment of the former chief justice. But fondness for power sometimes has a funny way of calibrating justice. Government has to finish the job by doing what’s fair and just: Release the full report.

Dulcie McCallum is the former ombudsman for the province of B.C. She lives in Nova Scotia.

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