"Curiouser and curiouser"
By Rob Wipond, July/August 2013
Ruling on BC Police Chiefs contradictory and confusing.
In May, Acting Deputy Registrar of Lobbyists Jay Fedorak issued a decision that the BC Association of Chiefs of Police (BCACP) and Municipal Chiefs of Police (BCAMCP) do not need to register as political lobby groups under BC’s Lobbyists Registration Act. Unfortunately, rather than providing clarity, Fedorak’s reasoning has merely fuelled questions swirling around the secretive activities of our police chiefs.
Deputy Registrar of Lobbyists Mary Carlson launched an investigation of the two police chief associations in October after I reported my questions about the associations to her (see Focus, November 2012, and May 2013). The associations were claiming to be “private groups” exempt from BC’s freedom of information laws covering public bodies. However, I asked, if the associations are actually private groups, aren’t they legally required to be registered and tracked as lobby groups, since they do a lot of political lobbying? (Police chief associations in other provinces are registered lobby groups in their provinces.) One way or another, I reasoned, our police chief associations have to be accountable to some laws covering either public or private entities, surely?
Carlson was actively investigating the case for months. However, Carlson suddenly went on leave. Fedorak took over in April and quickly issued a surprising—and surprisingly brief—decision.
Fedorak didn’t grapple with any of the actual substantive issues of the case. Only a single item of evidence was cited in his analysis—a letter of defense from the BCACP President. Fedorak wrote that he agreed with the BCACP President that “when police chiefs are participating in [the BCACP and BCAMCP], they are not ceasing to act as federal and local government employees or police chiefs… [They are working] on behalf of their respective local governments or the RCMP.” Basically, Fedorak concluded that these associations are simply comprised of police chiefs performing their normal public duties as public servants for public bodies, and therefore are not required to be registered as lobby groups.
Okay…except this is a strange conclusion for a number of reasons. Fedorak did not even address the fact that both associations have continued claiming the exact opposite to Focus and to the Office of the Information and Privacy Commissioner (OIPC); that is, the police chiefs have continued claiming to us that they are “private” groups not subject to public freedom of information laws. Fedorak also did not address the fact that the BCACP as of January became a registered non-profit society, and have long had their own independent budget and a non-government employee. And Fedorak also did not address the fact that the OIPC in September made the determination that the BCACP and BCAMCP “are not a public body.”
And all of this is even more peculiar considering Fedorak’s regular job is OIPC Assistant Commissioner. He was appointed temporarily to the Office of the Registrar of Lobbyist’s by Elizabeth Denham, who technically oversees both independent offices in her role as both Registrar of Lobbyists and Information and Privacy Commissioner. So Fedorak surely knew that the OIPC had previously concluded that the BCACP and BCAMCP are not public bodies, even as he was concluding in his role as the Acting Deputy Registrar of Lobbyists that the associations essentially are public bodies. He also would have known, or should have known, that the BCACP has continued refusing, as a "private" group, to provide copies of its archives through freedom of information processes, even though Fedorak in his ruling seemingly suggests the BCACP has been openly releasing all documents.
BC Civil Liberties Association policy director Micheal Vonn comments, “You can’t be apples in this basket and oranges in this basket. You are either a public, or private, entity. Because all citizens’ rights in relation to you depend on this distinction…Transparency and accountability issues hinge on this.”
Would Vonn call the decision of the Office of the Registrar of Lobbyist’s confusing, then? “Confusing is a fair characterization, but I think you want to go a little farther than that,” she answers. “We have a decision from another body [the OIPC] that comes to a completely contradictory conclusion. Not a different conclusion. Contradictory…This does not square. We need an umpire here to call this one, and we don’t have it at the moment.”
Interestingly, after a copy of a final communique with me about the case was emailed out to various parties, the Lobbyist Registrar’s contracted lawyer on the case, Frank Falzon, chose “reply to all” apparently accidentally. “I’m sure you’ll be hearing more on this issue,” Falzon wrote to Fedorak and another Registrar staff member.
Hmm, so apparently even the Registrar’s own lawyer doesn’t believe the case is as cut and dried as Fedorak’s decision made out?
I hope Mr Falzon is right; we at Focus would like to take all the outstanding questions about these police chief associations to a judicial review. Any lawyer out there who can offer pro-bono help?
Rob Wipond won this year’s Western Magazine Award in Science, Technology and Medicine for his Focus article “The Case for Electoshocking Mia” (Nov 2012).