November 26, 2018

From: Hon. Darryl Plecas, Speaker

To: Honourable Mike Farnworth, Government House Leader

Mary Polak, Official Opposition House Leader
Sonia Furstenau, Third Party House Leader

Re: November 23, 2018 letter from Fasken Martineau DuMoulin

The captioned letter from Fasken has been brought to my attention. As you are aware, that
letter requests that the motion unanimously passed by the Legislative Assembly on November
20, 2018 be rescinded. Since the letter makes reference to the actions and authority of my office,
I consider it appropriate to make following points for your consideration as part of your
deliberations.

1. I agree that it is open to the Legislative Assembly to rescind the motion. This is
contemplated in the motion itself, which provides for periodic review, and which flows
from the fact that the motion was an exercise of legislative privilege. It will be for each
of you and each member of the Legislative Assembly to decide whether, despite the
action taken on November 20, 2018, he or she now wishes to move or support a motion
ending the officers’ administrative leave notwithstanding the ongoing RCMP
investigation.

2. At our meeting on November 19, 2018, each of us was acutely aware of the solemn
responsibility connected with the matters under discussion. There was unqualified
unanimity that it would not be appropriate for these permanent officers to continue to
be at the Assembly in the face of an active criminal investigation regarding their actions
related to the Assembly. Official Opposition House Leader Mary Polak specifically
stated that she did not want or need any further information about the allegations
beyond knowing that there was an active RCMP investigation. In my respectful view,
that position was entirely reasonable in the circumstances. The work of these officers is
central to the operations and deliberations of the Legislative Assembly. They must have
the unqualified trust and confidence of the House. They are entitled to the presumption
of innocence in any criminal process, but the reality of an active criminal investigation
concerning their activities as permanent officers of the House cannot be ignored by the
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House. The Legislative Assembly has a right to protect the integrity of the institution.
The exercise of this right does not depend on a request from the special prosecutor. That
is not his role.

3. There was also unanimity that while action was needed to ensure that the officers were
not in the workplace, the economic impact of action taken should be the least intrusive
possible, consistent with the effective exercise of legislative privilege. As you will recall,
Mr. Falzon, the legal counsel who attended that meeting, advised us that the decision to
be taken was an exercise of legislative privilege, that legislative privilege is not governed
by the common law and that several options were available consistent with legislative
privilege. While the common law does not apply, the motion I proposed was that the
Legislative Assembly model a common law approach as far as practicable, which is why
the draft motion provided for administrative leave with pay and benefits (regarded at
common law as non-disciplinary action), instead of suspension or revocation of the
appointments (regarded at common law as disciplinary action). I note that the motion
also had the benefit of input from labour law specialist.

4. We discussed the public nature of a motion and the possibility of requesting that the
officers agree to take a voluntary administrative leave. It was noted that such an
agreement carried legal and practical risks. Even if one or both of the officers did agree
to depart on short notice, difficult legal issues would arise if one or both officers later
asserted the right to return before the criminal investigation was complete (and here I
note that the officers have since taken the position through their lawyer that they should
be allowed to return to work despite the criminal investigation). The issues would
include the enforceability of any agreement and the complications that would arise if
this occurred when the House was not sitting but still technically in session. All this
reflects that under the law of parliament, permanent officers occupy a very unique
status. The Constitution Act and the Legislative Assembly Management Committee Act have
been carefully designed so that it is only the Legislative Assembly (not the Speaker, not
the Management Committee and not the House Leaders) that can take management
action respecting permanent officers. Should action need to be taken when the
Assembly is not in session, Lieutenant Governor in Council can act with subsequent
ratification by the Assembly. However, if the House is merely between sittings (which
staff advises is not the same as being in the interval between sessions), an issue would
arise as to whether the Lieutenant Governor in Council could even act under the
Constitution Act. More to it, whether action is taken by the Legislative Assembly or by
Cabinet, such action would be public given the nature of these positions. In view of the
the criminal investigation and the unique status of these permanent officer positions,
each of you expressed the clear view that accountability for the decision had to rest with
the Legislative Assembly, difficult as the decision was for everyone.
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5. At the meeting, Ms. Polak described to legal counsel the process that was being
proposed – a motion introduced in the House at the same time as my meeting with the
officers notifying them of the motion. Counsel advised that this was within the
authority of the Legislative Assembly. Everyone was well aware that the process would
not involve advance notice to the officers. It was designed this way, as the decision was
there was only one realistic outcome based on the fact of an ongoing RCMP criminal
investigation, the merits of which the Legislative Assembly cannot adjudicate, and the
roles these officers occupy.

6. Fasken’s letter questions the Speaker’s authority to “investigate” these permanent

officers. While much is being made of the use of the word “investigate”, the fact is that
once serious concerns came to the Speaker’s attention, I had the right and responsibility
to follow up and report concerns to the police if there was sufficient basis to be
concerned about criminal activity. I recognized that it is for the police to investigate
crime, but I also recognized that I should not approach police without exercising
reasonable diligence and having some legitimate foundation for doing so. The process I
followed included requesting and receiving legal advice regarding my constitutional
authority as Speaker even to ask the police to investigate the conduct in question. While
it should perhaps go without saying, it was the police that decided to commence a
criminal investigation and the Crown that appointed the special prosecutors. I do not
instruct the police or the Crown.

7. I will also briefly comment on Ms. Polak’s November 23, 2018 letter to the other House
leaders posing a series of questions, including whether the Attorney General’s ministry
was consulted prior to the motion being introduced. I confirm that Mr. Falzon was
retained by my office to provide legal advice in connection with the constitutional role of
the Speaker and issues of legislative privilege in connection with these matters. The
retainer of Mr. Falzon was known to the Attorney General’s Ministry, which at no time
asserted that it was the Attorney General’s role to provide that legal advice. I confirm as
well that following the Monday night meeting where the view was expressed that the
Attorney General might be best placed to issue a public statement following passage of
the motion, I instructed counsel to contact the Deputy Attorney General and he did so.
It was subsequently determined that since this matter involved the Legislative
Assembly, and not the Executive Branch, it would be more appropriate for the office of
the Speaker, and not the Attorney General, to issue a public statement.

I refer finally to Ms. Polak’s request for an “emergency” management committee meeting early
this week in connection with these matters. While my office has canvassed members for
availability, I have since concluded that having regard for the committee’s authority, the status
of the criminal investigation and the contents of this memorandum, the December 6, 2018
meeting should proceed as scheduled.
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As noted at the outset, the Legislative Assembly exercises management authority over the
permanent officers in the exercise of legislative privilege, and it retains jurisdiction in this
matter. While last week’s decision reflected the collective view that it was necessary for the
Legislative Assembly to exercise its management responsibility by way of the only clearly
effective option available given the unique status of these officers, and it reflected the view that
taking no action was not a realistic option given your awareness of a criminal investigation, it
remains available for any member wishing to amend or rescind the motion to apply to the
Legislative Assembly to do so.

Regards,

Honourable Darryl Plecas

Speaker

Office of the Speaker, Parliament Buildings, Victoria, B.C. V8V 1X4, Phone: 250-387-3952, Fax: 250-3872813 e-mail: officeofthespeaker@leg.bc.ca