by Sean Arthur Joyce
The BC government has been cited by the Ombudsperson’s office for issuing unlawful orders during the pandemic lockdown, and is currently ruling by executive order while the Legislature sits mostly idle. What most British Columbians don’t know—because the mainstream media has failed to report on it—is that the passage of Bill-19 has created an indefinite “state of emergency,” with sweeping powers that are beyond legislative vote or parliamentary debate.
Bill-19, the COVID-19 Related Measures Act, is an addendum to the Emergency Program Act, the latter designed to facilitate faster responses to emergencies such as floods, environmental disasters and wildfires. It was passed in June while journalists mostly looked the other way, with only a single CBC report and a handful of reports on obscure blogs. The EPA previously required government to abide by a “sunset clause” which limited the state of emergency to 14 days. After that, government was required to re-assess conditions and either repeal the state of emergency or re-declare it for another 14-day period. Bill-19 now extends that time frame to one year, with the possibility of the Premier and Cabinet extending the period indefinitely beyond that. (Sunset clauses are designed to limit the capacity of governments to abuse emergency powers.)
With the passage of Bill-19, the BC Ombudsperson’s office has issued a report titled Extraordinary Times, Extraordinary Measures, which cited two specific orders issued under lockdown that went beyond the powers of government. “Orders M098 and M139 are contrary to law because they are not authorized by the governing legislation, the Emergency Program Act,” the report states. Among other things, order M098 “allows tribunals and other statutory decision makers to waive mandatory timelines. The same order suspends all mandatory limitation periods and time limits related to civil and family actions in the British Columbia Provincial Court, Supreme Court and Court of Appeal,” leaving one to question how this will affect citizens’ pursuit of justice during and after lockdown.
Order M139 should have sent a chill down the spine of anyone who still believes they at least still had a local participatory democracy. It allowed municipal governments to exclude the public from open meetings, hold meetings and public hearings electronically, and adopt bylaws more quickly than they could otherwise. It was repealed on June 17 and replaced by Ministerial Order M192, Local Government Meetings and Bylaw Process (COVID-19) Order No. 3. This new order “limits the circumstances” that allow local governments to exclude the public from attending meetings in person, while not restoring full public access. It also “limits the types of bylaws that can be passed without following the normal process set out in the applicable governing legislation.”[1]
Old news, you might say, and at least these illegal orders were corrected. But it illustrates the abuses of power that are readily to hand under the cover of invoking a state of emergency. So far, the legal measures included 30 Ministerial Orders issued by the Minister of Public Safety and Solicitor General under the Emergency Program Act. Not content with that, by passing Bill-19, the BC government has arrogated dictatorial powers to itself. These allow for the extension of those orders beyond the end of the state of emergency, empowering the Lieutenant Governor to extend them for up to one year after the Act is brought into force.[2] “The rule of law means that all expressions of public power must find their source in a legal rule,” explains the Ombudsperson’s report. “It is important to note that the issue here is not whether the content of any particular order is wise or unwise,” observes the report. “Without legal authority to amend a statute, the minister cannot legitimately exercise that role, no matter how noble the purpose.”
The BC Civil Liberties Association has raised the alarm about the worrying implications of Bill-19 with a critique it published on August 11.[3] “Under the Act, the government can temporarily change any legislation during an emergency, without any oversight from the public and without approval from the legislature. Although emergencies like the COVID-19 pandemic require quick decisions by the government, this Act lacks the safeguards required when the government is given such broad powers.” It’s precisely such law-making powers by executive order that the Ombudsperson has declared unlawful.
Although BC’s Minister of Public Safety and Solicitor General Mike Farnworth claimed that Bill-19 addressed the criticisms in the Ombudsperson’s report, it’s difficult to see how. The government’s response was to transfer the power to issue orders under a state of emergency from the Minister to the Premier and Cabinet, a dubious improvement. “The issue we investigated,” wrote Ombudsperson Jay Chalke, “is whether those extra powers include the ability for the minister to suspend or temporarily amend BC statutes and we concluded the minister does not have that authority, even in an emergency.”[4]
Besides creating broad new powers for Cabinet, Bill-19 limits public accountability. Although the new changes mean that future amendments will be done through regulations that must be published, regulations can come into effect immediately, explains the BCCLA. “The public won’t be made aware of changes through the traditional law-making process, and won’t have the ability to change the law before it comes into effect.”
There are still more worrying implications for democracy in this Bill. It allows the Premier and Cabinet to sidestep legislative debate in open parliament—that place we send our elected representatives to for just such purposes. “The lack of review goes against Ombudsperson recommendations that the government report any amendments to the legislature, and they should expire after a fixed number of sitting days,” cautions the BCCLA. “Expansive powers should be accompanied by some form of automatic expiry or review by the legislature.”
Finally, the Bill permanently expands emergency powers. “While some of the other changes in the Act are specific to the COVID-19 pandemic, section 9 permanently changes the Emergency Program Act. Future governments may use the new powers in response to new emergencies,” notes the BCCLA. “Cabinet can unilaterally declare a state of emergency, and under this new Act, it can amend any piece of legislation during the course of that emergency.” Although BC Attorney General David Eby has said the government is in the process of reviewing and overhauling the EPA, with Bill-19 effectively suspending the BC Legislature, it will be difficult to hold them to account for such a review.
While it’s all very well to argue that, as the title of the Ombudsperson’s report and the old proverb suggests, “extraordinary times call for extraordinary measures,” history proves that governments are reluctant to give up dictatorial powers once they have them. “The greatest tyrannies are always perpetuated in the name of the noblest causes,” warned American patriot and philosopher Thomas Paine. Following in that cautionary spirit, and in the spirit of Socratic enquiry, the Ombudsperson’s report asks a series of pertinent questions that should haunt every thinking British Columbian:
“If limitation periods can be suspended by ministerial order, what would prevent a future minister, in a different emergency, from abolishing rights of civil action or rights of appeal? Or perhaps it might be regarded as being appropriate to augment police powers by ministerial order? Why can’t various mechanisms of government accountability be suspended or amended by ministerial order if they are seen to be disruptive to the management of an emergency? Why can’t the minister change the fixed election dates, or alter the methods of electing members of the legislative assembly if they thought it necessary to address an emergency?”
[1] “Extraordinary Times, Extraordinary Measures,” BC Ombudsperson’s report, June 2020: https://bcombudsperson.ca/assets/media/ExtraordinaryTimesMeasures_Final-Report.pdf
[2] “Provincial Emergency Measures Act Enacted Into Law,” Michal Jaworski, July 15, 2020, https://www.mondaq.com/canada/operational-impacts-and-strategy/965520/provincial-emergency-measures-enacted-into-law-updated-with-list-of-measures-and-effective-dates
[3] “4 Reasons We Are Concerned About BC’s COVID-19 Law,” Meghan McDermott and David Macauley, August 11, 2020: https://bccla.org/2020/08/4-reasons-we-are-concerned-about-bcs-covid-19-law/
[4] “BC public safety minister made unlawful orders during pandemic, ombudsperson report says,” CBC News, June 24, 2020: https://www.cbc.ca/news/canada/british-columbia/bc-ombudsperson-report-covid-19-orders-1.5626125
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