Leslie Campbell

The “duty to document” may sound like boring bureaucratese, but it’s crucial to a functioning democracy. SOMETIMES A MEDIA STORY TAKES SO LONG TO UNFOLD that readers might well wonder why it’s still being told. I imagine that’s the case with the story of former Chief of Police Frank Elsner’s fall from grace. Court battles kept most players—including the Office of Police Complaint Commissioner (OPCC)—quiet for years. But policy-wise, we can lay a lot of the blame for dragging out such stories to highly imperfect access-to-information laws. Information that government relies on to make critical decisions is often just not available to journalists or citizens. Unless the public, often via journalists, has access to all the records behind such decisions, it’s impossible to shine a light on how and where costly mistakes were made, or poor judgement was exercised, and thereby hold public officials accountable—essential ingredients for a healthy democracy. The Elsner case implicates both the City of Victoria and Mayor Helps, as well as the provincial government, for denying the public’s right to know. That denial was made possible, in particular, through a lack of legislation around what’s called “duty to document.” In October 2018, Focus’ David Broadland filed an FOI request with the City (shortly after the OPCC issued its investigation report) for communications between Mayor Helps and Mayor Desjardins during their three-month internal investigation of Elsner. The City transferred that request to the Victoria and Esquimalt Police Board. In the Board’s response, there were virtually no communications between Helps and Desjardins about the drama unfolding around them during September, October and November 2015. When Broadland asked about this, he was told Mayor Help’s emails had been deleted due to “email retention schedules.” But when he asked to see those schedules, the Police Board admitted there were none. Moreover, the Police Board did not have custody and control of Mayor Helps’ emails. The City of Victoria did. In January, Broadland submitted a formal complaint to BC’s Office of the Information and Privacy Commissioner (OIPC) that the City of Victoria had failed to provide complete records. As he pointed out in his January/February Focus report, the City of Victoria has a policy requiring that both electronic and paper records created to “document the operations of the mayor” must be “retained for 10 years overall, and then transferred to Archives for selective retention.” The email record in question was only three years in the past. Finally, in July, we received a response from OIPC Senior Investigator Trevor Presley. He wrote, “Subsequent to your complaint, Rob Gordon [the City’s Information Access and Privacy Analyst] did a second search with a relatively new eDiscovery tool, which did a much more thorough and comprehensive search, including searching for deleted emails. After doing this, he found an additional 271 emails plus 152 pages of attachments which he believed were responsive.” Those emails were released to Focus and, though highly redacted, they did allow some details to be filled in, including around both mayors’ knowledge of sexual harassment and bullying charges against Chief Elsner in the fall of 2015. This is all covered in Broadland’s July/August feature report. Broadland then asked OIPC for an inquiry because he questions some of the redactions. The inquiry has been granted and a date set for October 2020. But right now I want to draw your attention to the way Investigator Presley summed things up: “The main problem here seems to be the deleted emails. I would note there is nothing in FIPPA [Freedom of Information and Protection of Privacy Act] which would require either the City of Victoria or the VEPB [Victoria and Esquimalt Police Board] to retain these emails, nor can the OIPC enforce record retention schedules set by public bodies.” Therein lies a big problem for a functioning democracy. The BC Freedom of Information and Privacy Association (FIPA) and other like-minded groups have been advocating for years that FIPPA legislation must include the duty to document, which “would compel government to document their decision making process so that citizens can exercise their information rights.” As the non-profit organization notes on its website: “The original lawmakers who drafted the FIPPA did not anticipate that government would hold meetings in person and over the phone without writing anything down (a phenomenon known as ‘oral government’), use personal email addresses to conduct government business, and maliciously delete records in order to circumnavigate freedom of information laws (a practice known as ‘triple-delete’). But unfortunately that is now the reality in which we are living.” The NDP promised two years ago to amend the almost-30-year-old FIPPA to include a duty to document. When the Liberal government was caught in 2015 purposely “triple deleting” communications about the Highway of Tears, the NDP had a lot to say. And well they should. It involved willful destruction of publicly owned, government records—records essential for transparency and accountability. (In the end, one government employee got fined $2,500—not for destroying the records, as there are no rules or penalties for that, but for lying about it under oath during Information and Privacy Commissioner Elizabeth Denham’s investigation.) Current and former Information and Privacy Commissioners have urged the provincial government to amend FIPPA to include a duty to document. Denham’s cogent and strongly worded Access Denied report describes it as necessary to restore public confidence and make clear that the government does not endorse an “oral culture” devised to avoid accountability. BC’s current Attorney General David Eby, as part of an all-party special legislative committee on the subject in 2016, made a specific recommendation to include a duty to document within FIPPA. Among the many risks of poor record retention cited in that all-party report was this one from David Loukidelis, QC (a former Information and Privacy Commissioner): “Loss of public confidence in government over time due to the perception that the absence of documentation reflects a deliberate tactic to hide, among other things, wrongdoing (including corruption or favouritism).” During the 2017 election campaign, the NDP unequivocally committed to updating FIPPA and including a duty to document. Unfortunately, since they’ve been in power, nothing has been done. In fact, they muddied the waters last spring when they passed changes to another act, the Information Management Act, bragging about them as a Canadian first. Vincent Gogolek, FIPA’s executive director, called the changes “a pathetic excuse for a response to massive pressure for action on this issue. A legal duty uses the words ‘must’ or ‘shall,’ not the word ‘may.’” BC’s current Information and Privacy Commissioner Michael McEvoy condemned the NDP’s legislation as ineffective and cynical: “As it now stands, the Information Management Act designates the Minister herself as primarily responsible for ensuring her Ministry’s compliance with the duty to document decisions. Citizens would find it very surprising that, on its face, the current law makes a Minister responsible for investigating her own conduct.” And it gets worse: guess who, within a couple of months of the bill passing, was found to be using her personal email address to conduct government business in order to circumvent Freedom of Information laws—laws which she oversees? Minister of Citizens’ Services Jinny Sims—who had a year earlier already been caught doing the same thing. Seriously. Perhaps the capper is that the Information Management Act applies to only 41 public bodies, not the 2,900 that come under FIPPA legislation, where duty to document really needs to be enshrined—as mandatory (the City’s non-mandatory records retention policy illustrating why). And it has to have significant penalties to be meaningful. Finally, implementation and enforcement of proper documentation must come under the jurisdiction of the independent Information and Privacy Commissioner. Unfortunately, it seems once a party is in power, at any level of government, the public’s right to know how decisions have been made sinks way down the priority list. Looking at the federal situation, a duty to document was never part of Bill C-58, the long-overdue federal attempt to update information access legislation dating back to 1983. In 2016, federal, provincial and territorial commissioners issued a joint resolution calling for—the third time, they noted—a legislated duty to document accompanied by effective oversight and enforcement provisions. Passed in June 2019, the new federal regulations were largely panned by those on the side of transparency for, among other things, excluding prime ministers’ and cabinet ministers’ records from access coverage, and for not including a duty to document. In my research, I was surprised to come across an example used by the federal Information Commissioner to illustrate the importance of duty to document. It related to Transport Canada’s behaviour in relation to the Victoria harbour airport, the focus of my feature report last month. The investigation of Transport Canada, the commissioner’s report stated, “revealed that the institution had taken no notes or minutes at some of the regular meetings officials had held with the City of Victoria, especially meetings related to the expansion of the harbour in 2010.” At the commissioner’s urging, Transport Canada eventually came up with 10 pages. I could give more examples of how journalists and citizens alike have been frustrated—perhaps disgusted is a more apt description—at the seeming disregard of public officials, all paid by taxpayers, to maintain proper records of how they arrived at their decisions. Given the paucity of records, it sometimes seems decisions are made in a cavalier fashion. A recent Victoria example of this, shown through a citizen’s FOI, was the removal of the Innovation Tree at Humboldt and Government Streets. And there’s always the worry that some sort of corruption or influence from improper quarters is being applied. How can we know—unless it’s all fully documented and accessible under the law? Did you know September 28 is Right to Know Day? Editor Leslie Campbell recommends the BC Freedom of Information and Privacy Association’s website fipa.bc.ca. Empower yourself through one of their free FOI workshops.

An airport in our midst Leslie Campbell’s article on Victoria’s harbour airport in the July/August edition was very informative. I live overlooking Victoria’s middle and outer harbours, and have clear views of both Middle Harbour’s Alpha Runway (East-West) and Outer Harbour’s Bravo Runway (NE-SW). Campbell’s article quotes Transport Canada’s Simon Rivet on the subject of “noise mitigation strategies” implemented by Transport Canada for Victoria Harbour air traffic: “We only allow three-bladed turbo-prop aircraft, which is the quietest version of a floatplane in existence.” It is true that turbo-prop aircraft make up most of the traffic in Victoria Inner Harbour Airport, but there are also a number of smaller piston-engined aircraft that take off. Hence, I challenge Rivet’s statement “we only allow…” One’s attention is certainly attracted to the piston-engined aircraft; one’s hearing suffers when these noisy beasts take off. It is time to enforce the ban on aircraft that do not meet the three-bladed turbo-prop rule. Rivet is also quoted as saying: “Best practices include the reduction of reverse thrust when landing, with sufficient room to allow for a natural slowdown, rather than have to put it in 'reverse’, which is quite noisy.” According to Rivet, “The preferred runway for landings is eastbound on Alpha Runway”—that’s the runway right through where people live. But an important percentage of landings are westbound on Alpha Runway, taking advantage of the wind from the south. This means that aircraft are now heading west, away from town. There is then every incentive for pilots to stop as quickly as possible on landing, because they’re going the wrong way—away from their destination. I would estimate that eight out of ten landings from the east involve pilots reversing engines to stop as quickly as they can, creating completely unnecessary, high-decibel noise, to the annoyance of all who live on both sides of Middle Harbour. Pilots and airlines are their own worst enemy. If they keep on behaving this way, they’re going to get themselves kicked out of the harbour because of the noise they create. The use of reverse thrust should be prohibited except in the case of an emergency. Leslie Campbell interviewed a few of the thousands of people who live and work on both sides of Middle Harbour. Many are concerned about the safety of mingling aircraft with boats, canoes, the Coho and other harbour users. We are told that aircraft fly within 50 metres of buildings on the Songhees side. This means that airplanes are passing within only a few metres of the boats tied up in the Victoria International Marina at the foot of Cooperage Place in Middle Harbour. The alarm clock for the occupants of those boats will be the 7am flight out of Victoria—the first in the day. In my mind’s eye, the thousands of inhabitants on both sides of Middle Harbour will one day rise up and shout, “I’m mad as hell, and I’m not going to take this anymore!” (from the movie Network). They will take to small boats and fill the harbour, preventing all aircraft movement. The problem is, where are they going to go, these airplanes, if they get chased away? To solve the problem of the safety and noise in Middle Harbour, Alpha Runway should be closed. The aircraft will simply have to use Bravo Runway. Donald Shields That was a most informative and thorough article on our centre-of-town water airport. A fine piece of reportage. No matter how much the lady harbour master says that everything is hunky dory, I agree with the chap who says it’s a disaster looking for just the right conditions to explode. Ross Smith My congratulations and sincere appreciation to Leslie Campbell for an exceedingly well-written article, which presents for public viewing many of the safety and health concerns related to the design and operation of Victoria Harbour Water Airport. In 2017, Transport Canada (TC) advised that, by the end of that year, there would be an amendment “to raise the current certified water aerodromes safety level to one comparable to that found at certified land airports.” This was yet another in almost 20 years’ worth of unfulfilled promises, but this was the first time that TC actually admitted to applying a lesser level of safety when certifying water aerodromes, which, to me, was and is reprehensible, especially when the water airport is located in the heart of a city with planes approaching at greater than 100 mph within 50 metres or less from a popular walkway and multi-storey residences, a distance that could be closed in less than a second! I’ve seen and reported to TC on too many close-call incidents to think anything other than it’s a case of “when” not “if” a crash will occur here. I firmly believe that TC’s recently released notice of proposed amendments “to establish regulatory requirements for the operation and certification of water airports in Canada” is no coincidence. TC media relations staff were approached by Focus months ago, so TC was well aware that the article would soon be made public. TC has had more than 19 years to prepare the text of such an amendment and, I believe, had it ready just in case. I think “just in case” arrived in the form of the Focus article, which now has made TC take the first step to right the wrong I believe they’ve perpetrated here since 2000 when TC certified Victoria Harbour Water Airport. Thank you Leslie Campbell and Focus for this achievement! I urge all those who have similar concerns about our water airport to respond to Transport Canada CARAC’s invitation [despite the September 2 deadline]. Susan M. Woods Did the mayors obstruct the Elsner investigation? Thank you for keeping this dreadful waste of money and deceitful behaviour in the public awareness. Our current police force could have had the benefit of the funds instead of keeping an arrogant lout on the payroll. Betty Young More entertainment, less art Thank you, Ross Crockford, for such an insightful, enlightened piece. I am sharing it far and wide in hopes it reaches the general population of the CRD. It is time to tell it like it is when it comes to the underhanded tactics of the Royal and McPherson Theatres Society. Jennifer MacLeod Great article; a really great summary of the situation as it has unfolded. I have one question though: where do you get the figure of $580,000 for the municipal support of the theatre? According to the Royal McPherson Theatres Society’s own online annual reports, the amount the three municipalities (Victoria, Oak Bay, Saanich) contribute to the Royal is only $100,000, and Victoria alone contributes $350,000 annually to the McPherson Playhouse. Is there another $480,000 coming in some form that doesn’t appear on their financial statements? Full disclosure: I am a 29-year veteran musician of the Victoria Symphony and president of a national organization of symphonic musicians, and I have seen this scenario play out in similar fashion across the country. We all pay lip service to how much our communities value resident arts companies, but we provide terrible infrastructure for them to serve the community from. This whole situation feels like a “renoviction” except that we have only one choice of where to move to next, and the opera and dance companies have no choice. Robert Fraser Ross Crockford responds: Thank you for the kind comments. I’m not an accountant, so I can’t speak to how the RMTS breaks down its financial statements, but it did state in its presentations to the three owner municipalities that it receives $580,000 annually from them, via the CRD—$480,000 for capital expenses, and $100,000 for its operating budget. A part of the problem may be that this amount of funding has not increased since 1998, when it was established by a bylaw. The RMTS is proud that it has not asked for an increase in this funding. Maybe it needs to be increased anyway—and more municipalities need to pay for the services the theatres provide. Not your grandpa’s wildfires Urban wildfires are certainly a horrifying possibility. I appreciate the information Stephen Hume shares with us about it. However, his article may have left an impression that we might be better off reducing urban trees due to the possibility of wildfires. I asked two forest ecologists and a professor of urban forestry whether urban trees dry out vegetation, as the article suggests. All replied that the issue was complex and does not lend itself to generalization. UBC urban forest professor Cecil Konendijik wrote: “It’s very bold to state that trees dry out the ground. In many places forests are the natural ecosystem, and actually help maintain the proper water cycles. The question is more to imitate nature where possible, and develop close-to-nature forest systems rather than planting a lot of non-native tree species that require more water and are less drought tolerant.” He adds: “I am not a forest fire expert, but the solution is definitely not to just remove trees. There are many ways to deal with forest fire risks, including ecological processes, working with the reality of fire as part of ecosystems, as well as e.g. the FireSmart program to minimize fire risks. In urban forestry, we always have to deal with risks (e.g. fire, falling trees), but these have to be considered in the wider context of the many essential benefits forests and trees provide.” California’s Sierra Club says a home itself is often “more ignitable than the vegetation surrounding it.” A common sight after wildfires in urban areas can be smoking holes in the ground, where houses once stood—still surrounded by living, green trees! Well-spaced plant life can actually block wind-blown embers from reaching one’s home. On the other hand, a yard completely devoid of vegetation can create a “bowling alley” for embers. Burning embers can float in on the wind from as far as a mile away. If people are considering cutting down urban trees, please first read the Sierra Club’s “5 Ways to Protect Your Home from Wildfires.” It suggests fire-proofing from the house out, including replacing or treating flammable shingles, keeping gutters cleared of dry leaves and needles, considering external sprinklers, not piling firewood beside or near the house, and making sure embers won’t find an easy entry point. Let’s make well-thought-out decisions about trees. Mature trees are not easily replaced. They take decades to grow. And most importantly, they may well be the key to reducing climate change. A recent study found that planting trees, and preventing further deforestation, are by far the best climate mitigation tools we have. A lead researcher said, “I thought restoration would be in the top 10, but it is overwhelmingly more powerful than all of the other climate change solutions proposed.” Last year, the UN’s International Panel on Climate Change warned that we have only 10 to 12 years (now 9 to 11) to make drastic changes, in order to prevent catastrophe. Wildfires are a possibility, and we should do all we can to protect ourselves. But the climate crisis is here now. It is more important than ever before to preserve and protect every tree we can, and to plant many more. Grace Golightly Stephen Hume responds: It is true that any one home itself may be more ignitable than the vegetation surrounding it, particularly if it has wooden sidings, decks and a cedar shake roof. Or it may not. However, this depends upon the house, the type of vegetation and the proximity of that vegetation to the structure. Municipal and provincial fire authorities are quite clear that among the most significant urban wildfire hazards are non-fire resistant vegetation adjacent to, touching or overhanging structures. This becomes more significant during prolonged drought and hot spells. Leaf and needle debris on roofs, in gutters and so on pose major hazards in urban-wildland interface fires. Let us indeed make well-thought decisions about trees, their type, placement and management. That’s why the article calls for a “vigorous, mature, adult conversation at the community level about the danger zone at the fringes of Greater Victoria.” I have the greatest respect for the Sierra Club but, as a former volunteer firefighter, I believe fire safety information is best obtained from fire safety experts. Two excellent sources are the Saanich Fire Department (summer-fire-safety.html) which deals with extensive urban-wildland interface zones and the provincial government’s fire safety website: (firesmart) The letter suggests that I imply “that urban trees are nice and all, but that we might be better off without them due to the possibility of wildfires.” What I said was that while the urban forest is beneficial, not all trees are the same and drought-intolerant trees that are not fire resistant can pose a risk that deserves discussion. I said: “Does that mean we should mow down the urban forest? Of course not.” Regarding the impact of certain kinds and species of trees on groundwater in drought conditions: A study published in Hydrology and Earth System Sciences found that fast growing exotic tree plantations, in this case eucalyptus, had water budgets over a three-year period which exceeded rainfall replenishment of subsurface moisture by 62 percent. “These results have obvious implications for the long term sustainability of growth rates from these plantations and the recharge of groundwater.” One of the implications is that deep-rooted non-native trees which use more water than is replenished by rainfall may pose a threat to more shallow-rooted—and fire resistant—native species like Douglas fir. Local gardeners and horticulturists may find a 2012 article in National Geographic, “Plants That Will Suck Your Yard Dry,” of interest. Finally, climate-driven urban-wildland interface fires are not a possibility, they are a fact. They occur with increasing frequency and intensity on every continent and while, as with weather, there is variability from year to year, the trend has been relentlessly upward along with global temperature. Adapting to wildfire threat is not a zero sum equation. It doesn’t mean removing urban forest and all its benefits. It does mean thoughtful strategic planning regarding appropriate tree species and types for available water budgets, placement in built environments, and management within the highest risk zones where thinning, pruning and judicious removal of ground fuel can reduce fire risk substantially. How and where to do this seems a reasonable subject for public discussion. Rare but serious side effects of “Cipro” Thanks so much to Alan Cassels for a very valuable article. However, given that officialdom has even admitted that as low as one percent of adverse drug and vaccine events ever gets reported, I doubt that casualties from these fluoroquinolone antibiotics are rare at all. Just within my own circle of contacts, I know of several people who’ve seen their health devastated by Cipro, Levaquin etc. Some years back, when I had severe ear infections in both ears, I was given a prescription for Cipro with a loud warning from the specialist that if I didn’t take it, I would end up with “cauliflower ears.” Having successfully avoided antibiotics for decades and knowing how serious Cipro’s side effects could be, I opted for an internal homeopathic remedy and herbal ear drops which cleared things up in days. When the ENT—who was totally ignorant of Cipro’s dangers—saw me, she was shocked and meekly said, “Well, whatever you did, it sure worked.” Roxanne (name withheld) Fun and loafing in the BC public service I was amused by Russ Francis’ article in the July/August 2019 Focus. It reminded me of advice I received during a middle management course many moons ago in the federal public service. The instructor informed his astonished class that it was possible to get by in the public service by putting in only a 35 percent effort—and that anything less might draw attention to the employee! More important in Francis’ article, is the damage he notes being done to the historical record in the public service by the advent of electronic means of written communication. Most business is now done by e-mail and most e-mails never end up in a record management system. While bad for maintaining a corporate memory, it will also be impossible for historians in the future to analyze and write about how public policy has developed in these decades. That will be the real shame. David B Collins Cruise ship emissions need City’s attention If Victoria City Council is so concerned about the environment, why don’t they make it mandatory for all cruise ships to hook-up to shore power when parked at Ogden Point? Compared to modern cars, cruise ships are environmental dinosaurs and spewing their exhaust in a residential neighborhood is unacceptable. If Victoria wants to keep expanding the number of cruise ship visits then authorities should install adequate shore power facilities and require all cruise ships to use them. Steen Petersen Open letter to Victoria City Council This is an urgent request to have the Victoria City Council approve the expropriation of the lot at 1980 Fairfield Place, which lies adjacent to Gonzales Hill Regional Park and resides within a degrading mature Garry oak ecosystem at the top of Gonzales Hill. As you would presumably know, the City has the right under the BC Land Expropriation Act (RSBC 1996 and current to August 7, 2019) to carry out this action, even without the approval of the lot owner. I would submit, in light of its declaration recently of a Climate Emergency, my tabling of numerous scientific studies and reports, and neighbourhood presentations (particularly focussing on ecosystem resiliency, water runoff and blasting legal co-liabilities to us and another immediate property owner, and dealing with the Climate Emergency), the City has a duty to approve such an action. To date, when this topic has been brought up, emails to individual councillors have been mostly ignored (which is disrespectful, discourteous, and unprofessional). Regardless, no tangible and precise reasons have been given by council regarding the reluctance to expropriate in this exceptional instance (especially dealing with a highly unique and rare greenfield site), other than the timid excuse that the situation doesn’t warrant such an action. Repeated requests have been made to the City for evidence that formal offers were made to the owners to purchase their lot. Councillor Isitt claims three offers were made and Mayor Helps claims five or six offers were made, while the owners claim no offers were forthcoming. To date, in spite of related requests, no evidence of any such offers to purchase has been provided. To date, and on a broader related note, there seems to be focused political will and concerted actions to continue to support developers who ransack our region’s natural assets. “Densification” continues to serve as a convenient excuse and talking point for the lack of fortitude of any of our local politicians, including this council, to deal with discouraging, not overtly encouraging, at every turn, continued significant increases in population growth. The benefits of densification are entirely offset by continued population increases in addition to the need for additional municipal infrastructure and higher possible fire risks with the proliferation of downtown high-rises. Council encouraging and endorsing continued regional population growth is the antithesis of dealing with a Climate Emergency (as is encouraging a cruise ship industry, and as was approving an Inner Harbour luxury lot marina). Anyone who understands ecology and the concept of ecological carrying-capacity would appreciate this science-constrained fact. Our regional ecosystems, including our watershed, can only stand so much adverse impact before the resiliency of the region’s ecosystems are undermined. Council needs to “walk the talk” on dealing with the council’s declaration of a Climate Emergency. Our neighbourhood has shared dozens of studies and presented the latest scientific evidence for the need to preserve the ecosystems within an urban setting and the urgent need to deal with Climate Catastrophe. Yet the City continues to encourage and allow the literal scouring of soil and vegetation on individual lots, replacing it with a lesser number of immature tree species and mostly sterile topsoil. Some egregious examples of tree, vegetation, and soil lot scouring include: Abstract’s “Belvedere Park” development at 1201 Fort Street and the complete removal of a mature urban forest, except for two large trees, with the City’s full blessing; the scouring of the two lots connected to the Rhodo project along Fairfield Road. Another lot scouring is the apparent entitlement of the owners of 1980 Fairfield Place to build an additional structure (i.e., a 600 square foot garden suite). In light of a bona fide Climate Emergency, there comes a time when a politician has to come down on the side of ecosystem legal rights and the greatest good for the greatest number of people. Unfortunately, in this case, it is to the detriment of individual rights. There are, however, two good options: (1) the purchase of the lot by the CRD and/or the City of Victoria (to make up for the initial, ill-considered mistake of creating this polygonal lot in 1955 and then not putting it on its Land Acquisition List over a 64-year period) or (2) expropriation. Victoria Council needs to act urgently. Show you actually have the foresight, wisdom, and strength to expropriate this lot. Please act like you actually believe there is a Climate Emergency! Brad Atchison