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May 5, 2012

Van Dongen's First Question

On May 2 John van Dongen asked his first question in the legislature as a BC Conservative, technically an independent. He wanted to know the precise section of the Financial Administration Act which authorized the Deputy Minister of Finance to approve the $6 million write-off of legal expenses in the BC Rail corruption trial. Attorney General Shirley Bond avoided the details of his question and spoke about the statement provided by the Deputy Attorney General on the Basi-Virk matter dated October 20, 2010 which said that he and the Deputy Minister of Finance made the decision under the authority of the Financial Administration Act. Van Dongen pressed without success for what section of the Act authorized the payment. The debate between NDP finance critic Bruce Ralston and Finance Minister Kevin Falcon a year earlier, May 31, 2011, might outline the answer to his question.

The write-off of the $6 million was done under the authority of Section 1 of the Guarantees and Indemnities Regulation to the Financial Administration Act. Unlike other provisions in the Act which punt decisions over $100,000 to treasury board or cabinet, the indemnities regulation allows the Director of the Risk Management Branch, or a person he specifies, unlimited scope in approving indemnities. In answering Ralston, Falcon said: "I am advised that back in 2005, a recommendation was made from the Deputy Attorney General to the Deputy Minister of Finance to approve the indemnity, and that decision was made by the Deputy Minister of Finance at the time. The Deputy Minister of Finance at the time, I am led to understand, is empowered to make those decisions under the Interpretation Act." One might have thought that Falcon would have simply said that the Director of the Risk Management Branch authorized the Deputy Minister to approve the indemnity. Why he referred to the Interpretation Act raises suspicions there is no audit trail.

The Interpretation Act is a statute that is used to interpret legislation when meaning is not clear. Section 23(3) of the Act states: "Words in an enactment directing or empowering a public officer to do something, or otherwise applying to the public officer by his or her name of office, include a person acting for the public officer or appointed to act in the office and the deputy of the public officer." That subsection may mean that a deputy minister can do anything a public officer who reports to the deputy can do; however, that subsection might also be limited by the context of the full section. Whether a correct use of that section was made might depend on jurisprudence with respect to that section of the Act.

On Saturday, May 6, Gary Mason in the Globe and Mail and Vaughn Palmer in the Vancouver Sun both wrote their columns on van Dongen's question and criticized Bond for not answering the question. I agree with Mason, that if Bond didn't know the answer previously given by Falcon, she should have promised to get back to van Dongen rather than arrogantly dismissing him. When Falcon answered the question in estimates debate a year earlier he had the benefit of having the Comptroller General sitting next to him and giving him the answers.

There could be a legal issue on why the Interpretation Act was relied on and whether it was appropriately used. In what other circumstances can a superior, ultimately a Deputy Minister, assume the authority of a subordinate? The fundamental question is not so much what authority was used but whether it should have been used. Having authority to squander $6 million on self-confessed criminals does not mean that authority should be exercised. Fortunately the Auditor General will eventually report on these questions, after fighting in court for access to documents.