The acting clerk of British Columbia’s Legislature says that no payment has been made to the law firm for the clerk who retired in disgrace and the sergeant-at-arms who remains suspended.
theBreaker.news wanted to know how much it has cost taxpayers for Vancouver-based Fasken to defend Craig James and Gary Lenz.
“I am advised that the Legislative Assembly has not paid any invoices to Fasken for the [2018-19 fiscal year], nor have any invoices been received to date this fiscal year,” said Acting Clerk Kate Ryan-Lloyd by email. “The last fiscal year in which Fasken received payment from the Legislative Assembly was 2007.”
When James and Lenz held a news conference in Vancouver last Nov. 26, a reporter asked them who was paying their legal bills.
“There is a policy in the Legislative Assembly where the legal fees in matters such as this would be borne by the Legislative Assembly,” James answered. “But the policy also exists that at the end of the day, if somebody is found guilty, that money would have to be repaid. It’s like the government’s indemnity program.”
His lawyer, Gavin Cameron, then interjected: “Just to be fair, I don’t think you should take from that that that’s where my fees are being paid from. I’ll leave it at that. But I don’t want that impression.”
Cameron has not responded for comment.
Dermod Travis of independent watchdog IntegrityBC said the Legislative Assembly Management Committee has an obligation to clarify who is paying the legal bills, “and whether or not those expenses are being covered by a third party.
“I’ve not known many lawyers who have taken on work like this without at least a retainer in place,” Travis said. “If they were working pro bono, that raises a whole new set of questions.”
James negotiated his 11th hour retirement on May 15 after Beverley McLachlin, the retired Chief Justice of the Supreme Court of Canada, found that he committed misconduct by paying himself a $257,988 pension and buying $2,150 worth of suits and $2,135.87 of luggage for personal use.
McLachlin’s May 2-delivered report did not find Lenz in misconduct, so he remains on paid suspension.
Meanwhile, McLachlin confirmed to theBreaker.news that she did not put interviewees under oath.
Her terms of reference as special investigator did not explicitly mention taking testimony under oath or by affirmation. By contrast, the enabling legislation for B.C.’s Auditor General, Information and Privacy Commissioner, Conflict of Interest Commissioner and Ombudsperson includes the power to take testimony under oath. Travis said that should have been explicitly noted in McLachlin’s report with a full explanation.
“It now casts doubt on what the two individuals may have said in their defence and it could also have an impact on the RCMP investigation,” he said.
Government House Leader Mike Farnworth tabled McLachlin’s appointment as a special investigator on March 7. The Legislature granted McLachlin “powers to compel persons to meet with the special investigator and to compel documents and other evidence, except those protected by solicitor-client privilege, to be provided to the special investigator.”
McLachlin stated in her report that “it is not a legal investigation,” but was confined to finding facts related to the allegations made by Speaker Darryl Plecas in his January report about waste and corruption in James and Lenz’s offices.
“It is not my task to draw legal conclusions or provide legal opinions,” she wrote. “My investigation is independent of and unrelated to any police investigation into these matters; it is limited to administrative misconduct, ie. conformity with Legislative Assembly rules, practices or policies.”
McLachlin was paid $219,479, including her $110,250 fees, $80,537 for support staff, $17,600 for transcription and $11,093 for travel. Her former Supreme Court law clerk, lawyer Neil Abraham of BLG in Ottawa, worked with her on the project.
The Legislature voted May 16 to keep the transcripts and identity of witnesses confidential and covered by parliamentary privilege, unless authorized by the Legislature or by written agreement of all recognized party House Leaders, “if required to be produced pursuant to an order from a court of competent jurisdiction.”
In a Times Colonist commentary last weekend, Dulcie McCallum, B.C.’s former Ombudsperson, wrote that government reneged on its promise to release the full report.
“Parts of the report had been redacted. Does Robert Mueller come to mind?” wrote McCallum, who is now Nova Scotia’s information and privacy commissioner, referring to the investigation of President Donald Trump.
“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.”
Meanwhile, the text of the settlement with James has also not been released. All we know is that it contains a non-disparaging clause and a so-called “non-monetary” clause. James is no longer on salary since abruptly retiring and does not have to repay the treasury for his ill-gotten gains.
Neither Farnworth nor BC Liberal house leader Mary Polak responded to theBreaker.news on May 27. Green spokeswoman Stephanie Siddon refused to arrange an interview with Green house leader Sonia Furstenau.
“Is there a clause tied to possible criminal charges and culpability?” Travis wondered. “So that, yes we’re going to let you keep all of this, but if you are charged and found guilty, you’re going to lose it all. We don’t know that.”
Could the NDP-promised expansion of the freedom of information laws to cover the Legislature someday prompt the release of the documents now withheld?
“They clearly didn’t get the message from day one on this, which is the Legislature has operated behind closed doors and dark rooms and people are fed up with it,” Travis said.
The RCMP investigation of James and Lenz continues.
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