NOTE: This article appeared in December in both the Valley Voice independent newspaper and a longer version on the Vaccine Choice Canada website. Since then Bonnie Henry has extended lockdown measures a further month from their original expiry date of January 8th, leading one to question whether the BC government has any intention of lifting the lockdown at all despite the province’s absurdly low death rate from COVID. Is this the “new normal”? A permanent state of siege against the populace under the guise of “emergency powers,” with carte blanche for the Premier and Cabinet to pass any laws without scrutiny? As the saying goes, “If you’re not enraged, you’re not paying attention.”
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, not representation in the BC Legislature. What most British Columbians don’t know is that the passage of Bill-19 in June 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 (EPA), the latter designed to facilitate faster responses to emergencies such as floods, environmental disasters and wildfires. 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 “without limitation,” i.e. indefinitely. Again, no Legislative debate or vote would be required; it would be proclaimed by order of the BC Lieutenant-Governor. Sunset clauses are designed to limit the capacity of governments to abuse emergency powers. An analysis of Bill 19 by the BC Civil Liberties Association (BCCLA) explains: “Expansive powers should be accompanied by some form of automatic expiry or review by the Legislature.”
With the passage of Bill-19, the BC Ombudsperson’s office issued a report titled Extraordinary Times, Extraordinary Measures, which cited two specific orders issued under lockdown, Orders M098 and M139 as contrary to law because they are not authorized by the governing legislation, the Emergency Program Act. “The rule of law means that all expressions of public power must find their source in a legal rule,” explains the report. “It is important to note that the issue here is not whether the content of any particular order is wise or unwise. Without legal authority to amend a statute, the minister cannot legitimately exercise that role, no matter how noble the purpose.”
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 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, which “limits the circumstances” that allow local governments to exclude the public from attending meetings in person. It also “limits the types of bylaws that can be passed without following the normal process set out in the applicable governing legislation.”
The BCCLA raised the alarm about the worrying implications of Bill-19 with a critique it published on August 11. “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.” Although BC’s Minister of Public Safety and Solicitor General Mike Farnworth claimed that the government addressed the criticisms in the Ombudsperson’s report, it’s difficult to see how. The minister’s response was simply to transfer the power to issue orders under a state of emergency from the Minister to the Premier and Cabinet. “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.”
Besides creating broad new powers for Cabinet, Bill-19 limits public accountability and sidesteps legislative debate, thus suspending representative democracy. 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. 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.”
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.