Opinion: Freedom of information in B.C. is not free

FOI request fees

The B.C. NDP leadership race could provide a redo to the FOI act so to avoid a violation of Charter rights.

Since forming a majority in 2020, the NDP government under (Premier) John Horgan has often stopped the legislature from doing its job of checking that statutes are legally sound.

In relation to recent changes to the FOI act through Bill 22, it rushed the bill’s passage by first limiting, and then closing, debate on it.

Within hours of its enactment, the government imposed on the public a mandatory fee on requests for government documents – a fee that could be an unjustifiable constraint on the Charter protected right to government information.

As part of our freedom of expression, the Supreme Court of Canada has constitutionalized the right to government information when it relates to holding government accountable in a democracy.

The relationship between access to information and accountability is self-evident. In the absence of an exposed government “paper trail”, politicians and branches of the bureaucracy alike can evade direct criticism from constituents and communities, and the broader public pressure that forces course corrections and redress in the wake of press coverage about poor judgement, poor administration, and the misuse of power and resources.

In plain terms, an enactment is unconstitutional in terms of the Charter when a recognized right is violated, and the government cannot sufficiently justify the infringement. A financial barrier in the form of a mandatory fee more than impairs the right to government information critical to holding government accountable, it blocks it.

First, this is not a one-time fee, as attaining relevant information held by government involves multiple requests. In part, this is due to government opaqueness about responsibilities and decision-making processes within the bureaucracy.

Second, as any capable journalist, researcher or advocate knows from practical experience, uncovering the truth is not a single step process. It is a progression, as one piece of information raises new insights and questions to answer, all in the service of accurate news reporting, credible policy proposals, and effective public advocacy.

This tax on accountability is forcing journalists, particularly those from community newspapers already punching above their weight on thin budgets, to leave more than one issue of public importance unaddressed.

Advocacy groups, public interest lawyers are similarly constrained, as are B.C. residents who are lower income as their household budgets cannot afford this fee to exercise a right related to holding government accountable, a practical reality made even more acute by inflation driving up food and shelter costs.

Under the constitutional test, a government must demonstrate a compelling state interest for violating a Charter right. But Horgan’s answer to what important purpose the fee fulfills admits it serves a partisan interest, not a public one. Specifically, the fee aims to deter political rivals from seeking information. The more official language for the justification characterizes such requests as nuisances that the fee is designed to curb.

Setting aside the confessed political goal for the fee, let's follow-up on curbing nuisance requests as a compelling state interest. To be defensible in this context, the mandatory fee must be the mechanism that infringes the least on the Charter protected right in realizing its stated purpose. It fails on this test, because of the FOI act itself.

Section 43 of the act already meets this purported objective absent any financial barrier to making a request for information: under this provision B.C.’s Information and Privacy Commissioner can decide that a request be set aside because it is frivolous or vexatious.

Often, consultation can help a government avoid infringing a Charter-protected right. But Horgan’s government departed from the standard consultation process for Bill 22, by consulting largely with itself a few months ahead of its introduction, and not even mentioning the fee to the main users of the FOI system when they were provided a brief opportunity to provide feedback on the act.

Similarly, a legislative committee tasked with reviewing the act was denied the opportunity to do its job ahead of the changes. But even when this committee convened this spring, it was prevented from recommending the fee be rescinded or modified with waivers, notwithstanding the evidence it heard about the fee’s adverse impact since its introduction, by the NDP government MLAs who formed the majority on the committee.

The new premier, to be determined by the NDP leadership race, can break from this approach. One of the candidates, (former Attorney General) David Eby served on a prior legislative committee that found fees contradict the purpose of the FOI act.

Notwithstanding recent comments he made defending Horgan’s decision, Eby has a record of changing course in response to the evidence.

That evidence could now include the investigation the Information and Privacy Commissioner is undertaking about the fee, evidence that could also be used in a constitutional case brought about through public interest litigation against this barrier, absent a government rethink on it.

Anita Gil is a public law specialist who works on legislation, public policy and public interest litigation in B.C. A former Crown prosecutor and Alberta Ministry of Justice bureaucrat, she grew up in the B.C. Interior.

Opinion: New CRTC powers dubbed 'censorship' by taxpayers' group

Pushing Canadian content

Prime Minister Justin Trudeau is taking Canada on a headfirst dive toward government censorship, with the Senate the only obstacle standing between Canadians and the vast ocean of government control.

As Trudeau’s censorship law makes its way to the Senate, the stakes are high.

Calling Bill C-11 a censorship bill is not hyperbolae.

“Bill C-11 would give the CRTC the power to set conditions demoting or applying warning labels to content it considers contrary to Broadcasting Act objectives, which are so broad as to cover a wide range of lawful content,” wrote Dr. Michael Geist, of the University of Ottawa, who has warned that Bill C-11 would see government bureaucrats “force-feed” Canadian content.

Bill C-11 would hand the CRTC, a government agency, the power to control what Canadians are exposed to online through filtering our news and streaming feeds on apps like Netflix and TikTok.

For now, the government says bureaucrats would only use their new censorship powers to try to promote Canadian content, thereby burying non-Canadian content.

But Bill C-11 gives the government the tools to filter online content on any basis, not just whether something counts as “Canadian.”

The Trudeau government is simply saying bureaucrats won’t use the full power handed to them. At least for now.

Canadians should trust that as much as they trust a gambling addict at a casino.

To some, Bill C-11 might seem abstract, but Canadians need to pay attention.

There are a few ways that this legislation, if signed into law, could impact Canadians almost immediately.

Do you like to watch shows or films on Netflix on date night? It turns out Bill C-11 will make some Canadian content harder, not easier, to find. That’s because the CRTC uses a very outdated means of deciding what counts as Canadian. Rather than focusing on content, the CRTC focuses on things like the production process.

Because of the outdated rules, Bill C-11 would make it harder for viewers to watch content that should be considered Canadian but isn’t, such as the series based on Canadian author Margaret Atwood’s Handmaid’s Tale.

Under the same outdated rules, non-Canadian content could become easier to see. A biopic of former U.S. president Donald Trump, called “Gotta Love Trump,” is currently considered to be Canadian.

Because the CRTC is stuck in the stone age, Bill C-11 could make it harder, not easier, to access Canadian content.

Do you like to watch content streamed from other parts of the world?

If you have a favourite show in India or South Korea, for example, your ability to watch that show may very well be impacted by Bill C-11.

Bill C-11 would force foreign content providers to follow all kinds of new rules and regulations in order to enter the Canadian market.

Some providers may just block the Canadian market altogether instead of following cumbersome rules. Hulu, for example, has already blocked the Canadian market.

That’s why you haven’t been able to keep up with the Kardashians lately.

Are you a small-time Canadian content creator?

If you have a YouTube channel that has original Canadian content, Bill C-11 could actually hurt your ability to attract viewers from outside of Canada.

YouTube would be forced by the CRTC to promote your channel to people who aren’t even interested in your particular content simply because it counts as “Canadian.”

This could lead to lower click rates, which YouTube would take as a sign that the content isn’t a winner with viewers. YouTube would then deprioritize your content in markets outside of Canada.

Again, this could hurt small-time creators more that it could help.

“Creators are going to wake up and find the kind of content that has previously been successful in an unregulated YouTube is no longer successful in a regulated YouTube,” warned famed Canadian YouTuber J.J. McCullough.

Canadian creators could be in for a world of hurt.

The bottom line is that Bill C-11 is bad news for Canadians, creators and consumers alike.

If you don’t want the government messing with your streaming feeds, your ability to watch content from abroad or your ability to promote your Canadian content outside of Canada, you have a stake in this fight.

It’s time to tell Trudeau to scrap his online censorship bill.

Jay Goldberg is the Ontario and interim Atlantic director of the Canadian Taxpayers Federation.

Opinion: City councils impact on housing costs

Aiding housing affordability

Buying a home in the Okanagan is expensive.

In 2016, the average home in Kelowna cost $473,780. Today, that cost is more than $1million. Not only is housing getting more expensive, but our homeless rate is increasing, and is expected to double by 2026.

Municipal election campaigns are in full swing. Residents should be aware of the impact local politicians have on the cost of housing.

We live in the fastest growing community in Canada. We also know our leaders believe this growth won’t slow down. So why are our elected officials shrugging their shoulders when it comes to the cost of housing?

The truth is, municipal politicians are some of the most impactful drivers of housing costs. While it’s true councils don’t control the cost of lumber or glass, the policies set by city councils can determine the value of a home for years to come.

Here’s a look at how municipalities directly impact housing costs:

Permit approvals and processing times

When projects aren’t approved quickly, interest costs continue to grow. Those costs are eventually passed to the end home buyer, adding to the cost of housing. Kelowna and Vernon are two of the fastest communities to approve new housing in British Columbia.

Development cost charges (DCCs)

DCCs fund infrastructure like roads, sidewalks, wastewater, and parks. Many would argue that this is a good thing. We need sidewalks, after all. Before a shovel hits the ground on a new project, the City of Kelowna collects more than $31,000 per door in DCCs to construct a new home. Those costs get wrapped into the final sale price.

Let’s say you own a piece of land, and you need to decide what you want to build on it. Do you build a mansion, or four smaller, more affordable homes?

Option 1: One 5,000-square-foot mansion. The DCCs are $31,000

Option 2: Four 1,000-square-foot units. The DCCs are $124,000

There is a better, more fair way to do this. Instead of charging these costs per door, we could charge these costs per square foot. Doing that would incentivize density over mansions, and create smaller, more affordable homes in the process.

Permanent growth boundaries

A permanent growth boundary determines where homes can be built in our community. Over the last year, Kelowna council rejected developments because they were outside of this boundary.

The permanent growth boundary is a double-edged sword. On one hand, a boundary provides home builders with certainty about where they can build, and what they can build.On the other, once a boundary is established, the price of all land inside of it goes up. That is why we see empty pieces of land in Rutland being sold for more than $500,000.

If we want homes to be more affordable, we need leadership that can operate flexibly with a growth boundary, approving housing where it makes sense.

Involvement of community groups

Slowing down growth is typically led by neighbourhood associations or “NIMBY.” Short for “Not in My Back Yard,” NIMBY may be supportive of more housing, as long as it doesn’t happen in that neighbourhood. The result is not only a lack of social housing, but also a lack of homes for families with young children, often called “The Missing Middle.” When NIMBY wins, the community loses, and housing costs go up.

City councils are responsible for the approval of new housing and must stand up to NIMBY so we can build more homes and have an impact on housing affordability.


There are more than 56,000 residences in Kelowna, and only 500 new homes a year are being built. Buildings and construction account for almost 40% of energy-related carbon dioxide emissions globally. But while the provincial government has created steps to make new home construction more energy efficient, older homes continue to be one of the largest contributors to our climate crisis.

Simply put, if we want to meet our climate goals, we need to turn our focus to older homes and buildings. City councils will need to take bold steps to retrofit pre-existing homes if we want to meet our climate goals.

In Guelph Ontario, Property Assessed Clean Energy (PACE) loans allow home owners to make their home more energy efficient, while spreading out those costs over several years. The loan is tied to the home instead of the owner. That makes it easier to justify making those important upgrades, while ensuring future owners of the home are also paying their fair share.

It is important to note that legislation is needed at the provincial level to support this, but it is an example of what we can achieve with bold leadership.

If local councils want to make a real impact in reducing our carbon footprint, we need to focus on pre-existing homes, not new ones.

Daniel Winer is the executive officer of the Canadian Home Builders’ Association Central Okanagan.

Opinion: Medical evidence supports involuntary treatment

New approach needed

When NDP leadership candidate, David Eby, proposed that those who repeatedly overdose might need involuntary treatment rather than rapid discharge from hospital to risk overdose death again, he was roundly criticized by former colleagues at the BC Civil Liberties Association.

His comments were termed “misleading, immoral and reckless”. It was asserted that “all evidence is clear that involuntary drug treatment can cause great harm – even death- and does not save lives. “

As doctors who treat youth with life-threatening substance use disorders, we think that the evidence needs a fresh look. The paper most often cited by opponents of involuntary treatment is best viewed as a study of incarceration of adults in prisons in Asia and is not relevant to B.C.

While it is correct that enforced abstinence without the provision of opioid agonist therapy is dangerous, this approach is not being proposed. There is however relevant evidence to support time-limited involuntary treatment when it incorporates opioid agonist therapy and harm reduction.

In a Norwegian study of the efficacy of involuntary treatment, the authors concluded that while “voluntary treatment for SUD generally yielded better outcomes, nevertheless, we also found improved outcomes for compulsory admission patients.

“It is important to keep in mind that in reality, the alternative to compulsory treatment is no treatment [and] outcomes for compulsory treatment support continuation of compulsory treatment.”

In April of 2016 , B.C.’s Chief Public Health Office declared a public health emergency in response to the nearly 1,000 deaths due to illicit drug overdoses that occurred in the previous year. The yearly death toll has continued to climb, with over 1,000 fatalities in the first six months of 2022.

Overdose is now the leading cause of death for adolescents in BC. Current approaches are ineffective and our dogma must be questioned. Novel approaches are needed, including the full range of prevention and early intervention, harm reduction, safe supply, and a consideration of hospital admission in the most rare and extreme cases involving children.

When a youth has a life-threatening overdose it takes days for cognition to improve sufficiently for them to have the capacity to understand and appreciate, refuse, or consent to, treatment. Most have serious mental health conditions; many are suicidal or at best indifferent to death. They are at high risk of a subsequent fatal overdose.

Yet current practice is to assume that only a few hours after overdose reversal they are capable of sound reasoning and to discharge them. Usually follow up is uncertain and guardians not notified.

In contrast, youth with mental health disorders who suffer non-illicit drug overdoses are invariably admitted, receive full psychiatric evaluation, and not discharged until clearly safe to do so. Youth with illicit drug overdoses deserve the same compassionate and comprehensive standard of care.

A brief involuntary admission for youth with a life-threatening illicit drug overdose provides a pause in a dangerous pattern of drug use.

It allows for cognitive clearing to permit a mental health review, for a youth to capably consider treatment options and for opioid agonist therapy to be effectively initiated. Connections to community resources can be re-established. If treatment is refused, the adolescent can be counselled, equipped for harm reduction and discharged.

This novel approach can save lives.

David Eby should be congratulated, not castigated, for the fact that his position has evolved. More of us could learn from the famous British economist John Maynard Keynes who, when disapprovingly asked by a reporter why he changed his view on an important matter, replied ” When the facts change, I change my mind – what do you do sir?”

Dr. Bruce Hobson, Dr. Jim Ketch, Dr. Robert Lehman, Dr. David Smith and Dr. Tom Warshawski

Hunters, anglers pushed hard to create conservation institutions

Wildlife protection

More than a century ago, British Columbia’s timber, minerals, and fish must have appeared limitless to the elites in Vancouver and Victoria.

But the conservation community could see the truth. As early as the 1890s, fish and game clubs formed out of concern for rapidly degrading wildlife habitats. Their advocacy and boots-on-the-ground efforts to restore the environment helped create our park systems and many of the protections wildlife enjoy today.

Saturday, Sept. 17 is National Hunting Trapping and Fishing Heritage Day, an opportunity to look back on what has been accomplished and look ahead to what can be improved as sustainable outdoor lifestyles grow in popularity. More than 107,000 British Columbians are licensed to hunt, 275,000 of us are licensed to fish in salt water and another 260,000 are licensed to fish B.C.’s lakes and streams.

Roads, railways, logging and mining destroyed vital habitat for fish and wildlife over the decades. Groups ,such as the B.C. Wildlife Federation, emerged 66 years ago as a powerful voice for tens of thousands of hunters and anglers whose primary interest is in conservation. With the rise in public concern for the natural world in the 1970s and 1980s, the federation retooled with a broad environmental mandate and engaged with the government peer-to-peer.

While there is much more work to be done, it has been a remarkably productive relationship, resulting in the creation of a world-class parks system, the protection of dozens of sprawling Wildlife Management Areas, the BC Hydro Fish and Wildlife Compensation Program, and the twin pillars of conservation, the British Columba Conservation Foundation and the Habitat Conservation Trust Foundation.

The Habitat Conservation Trust Foundation is arguably B.C.’s most important conservation institution. It has helped acquire 25,000 hectares of land for conservation and distributed more than $206 million to 3,550 conservation projects since 1981. Hunters, anglers, trappers and guide-outfitters put their hand up and asked for a surcharge on their licenses to fund that work.

HCTF sets aside about $500,000 a year for land acquisition in conjunction with the Nature Trust, Ducks Unlimited, Nature Conservancy, and local governments.

The creation of the HCTF was spearheaded by Carmen Purdy, president of the East Kootenay Wildlife Association and a director of the BCWF, government biologist Ray Demarchi, and Cranbrook trapper Joe Hall. The government of the day, which included forward-thinking cabinet ministers Rafe Mair, Stephen Rogers and Jim Hewitt, saw the wisdom of dedicated funding for conservation. Eventually, the fund was enshrined in the provincial Wildlife Act.

One of the HCTF’s most successful enhancement projects involved taking Roosvelt Elk from Vancouver Island and reintroducing them to locations around B.C. One herd on the Sechelt peninsula has grown from 30 animals to 1,600 animals.

Each year, more than $10 million a year is disbursed by HCTF to about 350 projects, carefully reviewed for the strongest likelihood of delivering benefits for fish, wildlife and habitat. The foundation’s work is conducted at arm’s length from government to ensure that money collected to benefit the environment is spent on the environment.

In the late 1960s, the BCWF had spawned a sister organization dedicated to habitat restoration work, which had become moribund. But in 1986, the British Columbia Conservation Foundation was resurrected to become the first general contractor for the HCTF, which handled the money and vetted the projects.

BCCF now works with governments, First Nations, eNGOs and community groups, including local BCWF clubs, to restore damaged habitat and acquire sensitive lands. After beginning its functional life with a handful of fisheries and wildlife projects wrangled by members of the hunting and angling community, the BCCF has since completed more than 5,000 projects worth $123 million.

BCCF’s Land for Wildlife Fund leverages its funds by partnering with other conservation groups to create a pool of money to purchase properties for the benefit of critically endangered species.

The hunting and angling community also took a leading role in pressuring government to account for the damage that economic development wrought on the landscape, especially hydroelectric development, recalled BCWF past president Harvey Andrusak, who helped negotiate compensation from BC Hydro on the Arrow Lakes and Revelstoke dam projects.

This year, the BC Hydro Fish & Wildlife Compensation Program will disburse nearly $10 million to 95 fish and wildlife restoration projects.

Hunters, trappers and anglers are working hard to maintain British Columbia’s fish, wildlife and habitat for the generations to come, but there is a long way to go. Fish, wildlife and habitat need all the help they can get. Join the fight.

Jesse Zeman is executive director of the B.C. Wildlife Federation.

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