Explanatory Note

This Bill repeals and replaces the Inquiry Act, R.S.B.C. 1996, c. 224, with a new Public Inquiry Act. The new Act will do the following:

• provide powers to establish a commission of inquiry and appoint commissioners;
• divide commissions into 2 categories (study commissions and hearing commissions) and set out the powers and duties of each;
• limit the use of special powers to compel witnesses and records and to apply to the court for a contempt order;
• create a regulatory financial framework.

Over 50 statutes refer to the current Inquiry Act. This Bill deals with these in 2 ways:

1. If a statute adopts the powers, duties or authorities of a commissioner under the Inquiry Act, the Bill deems that Act to continue for the purposes of that statute. Consequential amendments to statutes in this category will be completed at a later time.
2. If a statute relies on the Inquiry Act to commence an inquiry or a similar proceeding, the Bill amends the statute to enable any proceeding to be commenced under the new Act.

BILL 23 – 2006
PUBLIC INQUIRY ACT

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Part 1 -- Interpretation

Definitions

1 In this Act:

"chief commissioner" means

(a) if only one commissioner is appointed, that commissioner, or

(b) if more than one commissioner is appointed, the commissioner designated as chief commissioner under section 6 (2);

"commission" means a commission of inquiry established under section 2;

"commissioner" means a person appointed as a commissioner under section 6;

"court" means the Supreme Court;

"hearing commission" means a commission designated as a hearing commission under section 2;

"information" includes evidence and records;

"participant" means a person who is provided with notice or is accepted as a participant under section 12;

"study commission" means a commission designated as a study commission under section 2.

Part 2 -- Establishing a Commission of Public Inquiry

Division 1 -- Establishing a Commission

Establishing a commission

2 (1) The Lieutenant Governor in Council may, by order, establish a commission to inquire into and report on a matter that the Lieutenant Governor in Council considers to be of public interest.

(2) In an order made under subsection (1), the Lieutenant Governor in Council must do the following:

(a) define the purposes of the inquiry;

(b) set the terms of reference of the inquiry;

(c) designate the inquiry as a study commission, hearing commission or both;

(d) appoint one or more commissioners in accordance with Division 2 [Appointment of Commissioners and Staff];

(e) subject to any directives of Treasury Board, set the remuneration of the commissioners and compensation for expenses, if any.

(3) If the Lieutenant Governor in Council determines that it would be in the public interest, the Lieutenant Governor in Council may, in an order made under subsection (1), provide a commission with any of the powers set out in sections 26 [power to compel witnesses and order disclosure] and 27 [power to apply to court].

Agreements

3 (1) The Lieutenant Governor in Council may enter into an agreement to establish a joint commission with either or both of the following:

(a) the government of another jurisdiction;

(b) an aboriginal organization exercising government functions in British Columbia.

(2) If a joint commission is established with a government of another jurisdiction, the Lieutenant Governor in Council may, in the order establishing the commission, exempt the commission from all or part of a provision of this Act or the regulations made under it if necessary to avoid a conflict of law.

Appropriation

4 The costs and expenses incurred in connection with an inquiry under this Act must be paid out of the consolidated revenue fund, in the absence of an appropriation of the Legislature available for that purpose.

Amendment or termination

5 At any time before a commission issues its final report, the Lieutenant Governor in Council may, by order,

(a) amend the order that established the commission, or

(b) terminate the commission.

Division 2 -- Appointment of Commissioners and Staff

Appointment of commissioners

6 (1) On establishing a commission, the Lieutenant Governor in Council

(a) must appoint a commissioner to conduct the inquiry, and

(b) may appoint other commissioners.

(2) If more than one commissioner is appointed, the Lieutenant Governor in Council must designate the commissioner who is to act as chief commissioner.

(3) Unless the Lieutenant Governor in Council states otherwise in the appointment order, a commissioner may rely on all decisions made and information received by any former or current commissioner of the inquiry to which the commissioner was appointed.

Responsibilities of chief commissioner

7 The chief commissioner is responsible for

(a) the effective management and operation of the commission,

(b) the organization and allocation of work among commissioners, including assigning commissioners to panels consisting of one or more commissioners, and

(c) ensuring that the commission is financially responsible and accountable, and complies with any regulations made under this Act respecting financial matters.

Commission staff

8 (1) The chief commissioner may appoint employees, in accordance with the Public Service Act, necessary to exercise the powers and perform the duties of a commission.

(2) The chief commissioner may engage or retain consultants, investigators, lawyers, expert witnesses or other persons the chief commissioner considers necessary to exercise the powers and perform the duties of a commission, and may determine their remuneration.

(3) The Public Service Act does not apply to a person retained under subsection (2) of this section.

Part 3 -- Duties and Powers of Commissions

Division 1 -- General Duties and Powers

Commissioner duties

9 Commissioners must faithfully, honestly and impartially perform their duties and, except in the proper performance of those duties, must not disclose to any person any information obtained as a commissioner.

Power to make directives

10 (1) Subject to this Act and the commission's terms of reference, a commission has the power to control its own processes and may make directives respecting practice and procedure to facilitate the just and timely fulfillment of its duties.

(2) Without limiting subsection (1), a commission may make directives as follows:

(a) respecting timetables for the conduct of the inquiry, including dividing the inquiry into phases;

(b) respecting adjournments;

(c) respecting the extension or abridgement of time limits provided for in the directives;

(d) respecting applications to be a participant;

(e) respecting the transcription or recording of meetings and hearings and the process and fees for reproduction of a recording if a person requests one;

(f) respecting access to, and restriction of access to, commission records by any person;

(g) establishing the forms it considers advisable.

(3) For any matter under this Act for which a commission may make directives, the commission may, for different persons or classes of persons,

(a) make different directives, and

(b) waive or modify one or more of its directives as necessary.

(4) A commission must make accessible to the public any directives made under this Act.

(5) A commission may make an order in respect of any matter for which a directive has been made, or may be made, under this Act.

Power to inspect

11 Subject to this Act and the commission's terms of reference, a commission may

(a) conduct an inspection of a public place, including copying any records found in that place, and

(b) with the permission of the owner or occupier, conduct an inspection of a private place, including copying any records found in that place.

Who may participate

12 (1) A person may act as a participant if the person

(a) is provided with notice under subsection (2), or

(b) is accepted as a participant under subsection (4).

(2) If a hearing commission intends to make a finding of misconduct against a person, or a report that alleges misconduct by a person, the commission must first provide the person with

(a) reasonable notice of the allegations against that person, and

(b) notice of how that person may respond to the allegations.

(3) A person other than one described in subsection (2) may apply to be a participant by applying to the commission in the manner and form it requires.

(4) On receiving an application under subsection (3), a commission may accept the applicant as a participant after considering all of the following:

(a) whether, and to what extent, the person's interests may be affected by the findings of the commission;

(b) whether the person's participation would further the conduct of the inquiry;

(c) whether the person's participation would contribute to the fairness of the inquiry.

Powers respecting participants

13 (1) Subject to section 14, a commission may make orders respecting

(a) the manner and extent of a participant's participation,

(b) the rights and responsibilities of a participant, if any, and

(c) any limits or conditions on a participant's participation.

(2) In making an order under subsection (1), a commission may

(a) make different orders for different participants or classes of participants, and

(b) waive or modify one or more of its orders as necessary.

(3) In making an order under subsection (1), a hearing commission must ensure that a participant who responds to a notice under section 12 (2) has a reasonable opportunity to be heard by the commission before making a finding of misconduct against the participant, or a report that alleges misconduct by that participant.

Rights of participants

14 (1) A participant may

(a) participate on his or her own behalf, or

(b) be represented by counsel or, with the approval of the commission, by an agent.

(2) A participant

(a) has the same immunities as a witness who appears before the court, and

(b) is considered to have objected to answering any question that may

(i) incriminate the participant in a criminal proceeding, or

(ii) establish the participant's liability in a civil proceeding.

(3) Any answer provided by a participant before a commission must not be used or admitted in evidence against the participant in any trial or other proceedings, other than a prosecution for perjury in respect of the answer provided.

Power to accept information

15 (1) A commission may receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law.

(2) Without limiting section 13 [powers respecting participants], a commission may exclude anything unduly repetitious.

(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to which or purposes for which any oral testimony, records or things may be admitted or used in evidence.

Power to prohibit or limit attendance or access

16 (1) A commission may, by order, prohibit or restrict a person or a class of persons, or the public, from attending all or part of a meeting or hearing, or accessing all or part of any information provided to or held by the commission, if section 30 [disclosure by Crown] applies or if the commission has reason to believe that

(a) the order is necessary for the effective and efficient fulfillment of the commission's terms of reference, or

(b) the order is necessary to protect

(i) a person from undue interference with the person's personal or financial privacy rights,

(ii) a person's personal security,

(iii) a person's right to a fair trial in a criminal proceeding, or

(iv) the public interest.

(2) In making an order under subsection (1), a hearing commission must not unduly prejudice the rights and interests of a participant against whom a finding of misconduct, or a report alleging misconduct, may be made.

Power to maintain order

17 (1) At a meeting or hearing, a commission may make orders or give directions that it considers necessary for the maintenance of order at the meeting or hearing, and, if any person disobeys or fails to comply with any order, the commission may call on the assistance of any peace officer to enforce the order.

(2) A peace officer called on under subsection (1) may take any action that is necessary to enforce the order and may use such force as is reasonably required for that purpose.

Participant's failure to comply with orders

18 Without limiting any other power of enforcement, if a participant fails to comply with an order or a directive of a commission, including any time limits specified for taking any actions, the commission, after giving notice to the participant, may do any of the following:

(a) schedule a meeting or hearing;

(b) continue with the inquiry and make a finding or recommendation based on the information before it, with or without providing an opportunity for submissions from that participant;

(c) make any order necessary for the purpose of enforcing its orders or directives.

Power to record meetings or hearings

19 (1) A commission may transcribe or record its meetings or hearings.

(2) If a commission transcribes or records a meeting or hearing, the transcription or recording must be considered to be correct and to constitute part of the record of the meeting or hearing.

(3) If, by a mechanical or human failure or other accident, the transcription or recording of a meeting or hearing is destroyed, interrupted or incomplete, the validity of the meeting or hearing is not affected.

Privative clause

20 (1) A commission has exclusive jurisdiction to inquire into, hear and determine all matters and questions of fact and law arising or required to be determined under this Act and to make any order it is permitted to make.

(2) An order of a commission under this Act or its terms of reference on a matter in respect of which the commission has exclusive jurisdiction is final and conclusive and is not open to question or review in any court.

Division 2 -- Study Commissions

Powers of study commissions

21 (1) Subject to this Act and the commission's terms of reference, a study commission may engage in any activity necessary to effectively and efficiently fulfill the duties of the commission, including doing any of the following:

(a) conducting research, including interviews and surveys;

(b) consulting with participants, privately or in a manner that is open to the public, either in person or through broadcast proceedings;

(c) consulting with the public generally, and for that purpose, issuing directives respecting any of the matters set out in subsection (2).

(2) A study commission may make directives respecting any of the following:

(a) the notification of participants and the public regarding the consultation;

(b) the holding of public meetings, including the places and times at which public meetings will be held and the frequency of public meetings;

(c) the conduct of, and the maintenance of order at, public meetings;

(d) the receipt of oral and written submissions.

(3) A study commission must not exercise the powers of a hearing commission as set out in section 22 (1) (a) to (d), unless the study commission

(a) is also designated as a hearing commission, or

(b) has a power under section 26 to compel witnesses or order disclosure of information.

Division 3 -- Hearing Commissions

Powers of hearing commissions

22 (1) Subject to this Act and the commission's terms of reference, a hearing commission may engage in any activity necessary to effectively and efficiently fulfill the duties of the commission, including doing any of the following:

(a) issuing directives respecting any of the matters set out in subsection (2);

(b) holding written, oral and electronic hearings;

(c) receiving submissions and evidence under oath or affirmation;

(d) making a finding of misconduct against a person, or a report that alleges misconduct by a person.

(2) A hearing commission may make directives respecting any of the following:

(a) the holding of pre-hearing conferences, including confidential pre-hearing conferences, and requiring one or more participants to attend a pre-hearing conference;

(b) procedures for preliminary or interim matters;

(c) the receipt and disclosure of information, including but not limited to pre-hearing receipt and disclosure and pre-hearing examination of a participant or witness on oath, on affirmation or by affidavit;

(d) the exchange of records by participants;

(e) the filing of admissions and written submissions by participants;

(f) the service and filing of notices, records and orders, including substituted service and requiring participants to provide an address for service;

(g) without limiting any other power of the commission, the effect of a participant's non-compliance with the commission's directives.

(3) A hearing commission must not exercise the powers of a study commission as set out in section 21 (1) (a) to (c) unless also designated as a study commission.

Service of notice or records

23 (1) A hearing commission may provide a notice or record to a person by personal service of a copy of the notice or record or by sending the copy to the person by any of the following means:

(a) ordinary mail;

(b) electronic transmission, including telephone transmission of a facsimile;

(c) if specified in the hearing commission's directives, another method that allows proof of receipt.

(2) If a hearing commission is of the opinion that, because there are so many participants or for any other reason, it is impracticable to give notice of a hearing to a participant directly or by a method referred to in subsection (1), the commission may give notice of a hearing by public advertisement or otherwise as the commission directs.

(3) If a notice or record is not served to a person in accordance with this Act or the regulations made under it, an inquiry is not invalidated if

(a) the contents of the notice or record were known by the person within the time allowed for service,

(b) the person consents, or

(c) the failure to serve does not result in prejudice to the person, or any resulting prejudice can be satisfactorily addressed by an adjournment or other means.

Hearings open to public

24 Subject to sections 16 [power to prohibit or limit attendance or access] and 30 [disclosure by Crown], a hearing commission must

(a) ensure that hearings are open to the public, either in person or through broadcast proceedings, and

(b) make accessible to the public information submitted in a hearing.

Freedom of Information and Protection of Privacy Act does not apply

25 (1) The Freedom of Information and Protection of Privacy Act, other than section 44 (2), (2.1) and (3) [power of commissioner in conducting investigations, audits or inquiries], does not apply to any of the following in respect of a hearing commission:

(a) a personal note, communication or draft report of a commissioner or of a person acting on behalf of or under the direction of a commissioner;

(b) any information received by the commission in a hearing to which section 16 [power to prohibit or limit attendance or access] or 30 [disclosure by Crown] applies;

(c) a transcription or recording of a hearing;

(d) information submitted, in a hearing, for which public access is provided by the commission.

(2) Subsection (1) does not apply to personal information, as defined in the Freedom of Information and Protection of Privacy Act, that has been in existence for 100 or more years or to other information that has been in existence for 50 or more years.

Division 4 -- Special Powers

Power to compel witnesses and order disclosure

26 (1) At any time before making its final report, a commission, if empowered to do so in the order establishing the commission and subject to subsection (2), may serve a summons requiring a person to do either or both of the following:

(a) attend a meeting or hearing to give evidence on oath or affirmation or in any other manner that is admissible and relevant to an issue in the inquiry;

(b) produce for the commission or a participant information or a thing in the person's possession or control that is admissible and relevant to an issue in the inquiry.

(2) A person cannot be compelled to disclose to a commission anything that, in a court, would be privileged under the law of evidence.

(3) A commission may

(a) if a person was summoned to appear before the commission at the request of a participant, order the participant to pay appearance fees and expenses reasonably and necessarily incurred by the person summoned, other than fees and expenses incurred by the person in respect of legal representation or advice, and

(b) in any case, pay appearance fees and expenses reasonably and necessarily incurred by a person summoned to appear before the commission, other than fees and expenses incurred by the person in respect of legal representation or advice.

(4) A commission may apportion fees and expenses under subsection (3) between one or more participants, and between one or more participants and the commission.

(5) Subject to this Act and the commission's terms of reference, a commission may make directives respecting appearance fees and expenses reasonably and necessarily incurred by a person summoned to appear before the commission.

Power to apply to court

27 A commission, if empowered to do so in the order establishing the commission, may apply to the court for any of the following:

(a) an order directing a person to comply with a summons served by the commission under section 26;

(b) an order directing any directors and officers of a person to cause the person to comply with a summons served by the commission under section 26;

(c) a warrant authorizing the commission to conduct an inspection of a private place, including copying any records found in that place;

(d) an order finding a person to be in contempt, as if in breach of an order or a judgment of the court, for failing or refusing to comply with a summons to

(i) attend a meeting or hearing before the commission,

(ii) answer questions of the commission or a participant, or

(iii) produce the information or thing in their custody or possession to the commission;

(e) an order finding a person to be in contempt, as if in breach of an order or a judgment of the court, for failing or refusing to comply with an order or a directive of the commission;

(f) an order finding a person to be in contempt, as if in breach of an order or a judgment of the court, for a reason other than as set out in paragraph (d) or (e).

Division 5 -- Reporting

Interim report

28 (1) If required by the commission's terms of reference, a commission must make an interim report to the minister at the times and on the matters stated in the terms of reference.

(2) A commission may make an interim report to the minister on any matter relevant to the commission's terms of reference at any time before the commission makes its final report.

(3) Section 29 (2) to (8) applies to an interim report as if it were a final report.

Final report

29 (1) A commission must make its final report to the minister in writing, setting out

(a) any findings of fact made by the commission that are relevant to the commission's terms of reference and the reasons for those findings, and

(b) if required by the commission's terms of reference, any recommendations of the commission.

(2) A commission must not release its report to any person other than the minister.

(3) The minister must submit the report to the Executive Council at its next meeting.

(4) A person must not release the report to any other person except with the approval of the Executive Council.

(5) If the Executive Council approves the release of a report to a person, the Executive Council must

(a) determine whether any portion of the report is based on information to which section 16 [power to prohibit or limit attendance or access] or 30 [disclosure by Crown] applies, and

(b) withhold those portions of the report.

(6) Without limiting subsection (5), if the Executive Council approves the release of the report, the Executive Council may withhold portions of the report if necessary to protect

(a) a person from undue interference with the person's personal or financial privacy rights,

(b) a person's personal security,

(c) a person's right to a fair trial in a criminal proceeding, or

(d) the public interest.

(7) If the Executive Council withholds any portion of a report, the person who has approval to release the report must identify in the report the withheld portion and, to the extent possible, summarize it.

(8) If a report includes a finding of misconduct against a participant, or alleges misconduct by a participant, the minister must provide to the participant a copy of the report except that, if under section 16 the participant was not present while information was provided or did not have access to information, the minister must

(a) withhold from the participant any portion of the report that refers to the information, and

(b) identify in the report the withheld portion and, to the extent possible, summarize it.

Part 4 -- General

Disclosure by Crown

30 (1) If the government discloses to a commission, either voluntarily or in response to a request or summons, any information over which the government asserts privilege or immunity, the privilege or immunity is not waived or defeated for any other purpose by the disclosure.

(2) If a commission determines that it is necessary to disclose information over which the government asserts privilege or immunity to a participant, in the public interest or as part of the commission's report, the privilege or immunity is not waived or defeated for any other purpose by the disclosure.

Responsibility for records

31 Following the completion or termination of an inquiry, the minister has primary responsibility for the final report and all records of the commission.

Compulsion protection

32 A commissioner, or a person acting on behalf of or under the direction of a commissioner, must not be required to testify or produce evidence in any proceeding, other than a criminal proceeding, about information obtained in the discharge of duties under this Act.

Immunity protection

33 (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against the government, a commission, a commissioner or a person acting on behalf of or under the direction of a commissioner because of anything done or omitted

(a) in the performance or intended performance of any duty under this Act, or

(b) in the exercise or intended exercise of any power under this Act.

(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith.

Power to make regulations

34 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations respecting the following:

(a) the preparation and review of commission budgets, including interim budgets;

(b) expenditures or classes of expenditures by commissions, including setting limits or rates and requiring approvals;

(c) procurement procedures of commissions, including requiring the use of real estate, goods or services that are owned or leased by the government or a government agency;

(d) financial reporting by a commission;

(e) audits, including interim audits, of a commission;

(f) procedures for commissions, or classes of commissions;

(g) any matter about which a commission may make orders or directives;

(h) service of notice or records by the commission or a participant;

(i) limits and conditions on participation;

(j) appearance fees and expenses reasonably and necessarily incurred by participants.

(3) The Lieutenant Governor in Council may make different regulations under subsection (2) for

(a) study commissions and hearing commissions, and

(b) specified commissions.

(4) Despite any provision of this Act empowering a commission to make an order or a directive, if the Lieutenant Governor in Council makes a regulation under subsections (1) or (2), a commission must not make an order or a directive that is inconsistent with the regulation.

Part 5 -- Transition and Repeal

Transition

35 For the purposes of any enactment that refers to the Inquiry Act, the reference is to be read as a reference to the Inquiry Act, R.S.B.C. 1996, c. 224, as it read immediately before its repeal, and that Act is deemed to continue for those purposes despite its repeal.

Repeal

36 The Inquiry Act, R.S.B.C. 1996, c. 224, is repealed.

 
Consequential Amendments

 
Agricultural Land Commission Act

37 Section 39 of the Agricultural Land Commission Act, S.B.C. 2002, c. 36, is repealed and the following substituted:

Definition of "board" in sections 40 to 45

39 (1) In sections 40 to 45, "board" means a commissioner appointed under the Public Inquiry Act for the purpose of inquiring into a matter described in section 40.

(2) The board has the powers of a commissioner appointed to a study commission under the Public Inquiry Act and the powers set out in sections 26 and 27 of that Act.

 
Local Government Act

38 Section 287.2 (1) of the Local Government Act, R.S.B.C. 1996, c. 323, is amended in paragraph (c) of the definition of "indemnification" by striking out "Part 2 of the Inquiry Act," and substituting "the Public Inquiry Act,".

 
Police Act

39 Section 50 (3) (f) of the Police Act, R.S.B.C. 1996, c. 367, is repealed and the following substituted:

(f) make recommendations to the minister for a public inquiry under the Public Inquiry Act if there are reasonable grounds to believe that

(i) the issues in respect of which the inquiry is recommended are so serious or so widespread that an inquiry is necessary in the public interest,

(ii) an investigation conducted under this Part, even if followed by a public hearing, would be too limited in scope, and

(iii) powers granted under the Public Inquiry Act are needed; .

40 Section 63.1 (9) (b) is repealed and the following substituted:

(b) recommend that the minister initiate an inquiry under the Public Inquiry Act.

 
School Act

41 Sections 95 (1) (b) and 166.43 (1) (a) (ii) of the School Act, R.S.B.C. 1996, c. 412, are amended by striking out "Part 2 of the Inquiry Act" and substituting "the Public Inquiry Act".

 
Vancouver Charter

42 Section 180 (2) of the Vancouver Charter, S.B.C. 1953, c. 55, is amended by striking out "Part 2 of the Inquiry Act" and substituting "the Public Inquiry Act".

Commencement

43 This Act comes into force by regulation of the Lieutenant Governor in Council.

 
Explanatory Note

This Bill repeals and replaces the Inquiry Act, R.S.B.C. 1996, c. 224, with a new Public Inquiry Act. The new Act will do the following:

• provide powers to establish a commission of inquiry and appoint commissioners;
• divide commissions into 2 categories (study commissions and hearing commissions) and set out the powers and duties of each;
• limit the use of special powers to compel witnesses and records and to apply to the court for a contempt order;
• create a regulatory financial framework.

Over 50 statutes refer to the current Inquiry Act. This Bill deals with these in 2 ways:

1. If a statute adopts the powers, duties or authorities of a commissioner under the Inquiry Act, the Bill deems that Act to continue for the purposes of that statute. Consequential amendments to statutes in this category will be completed at a later time.
2. If a statute relies on the Inquiry Act to commence an inquiry or a similar proceeding, the Bill amends the statute to enable any proceeding to be commenced under the new Act.