The BC Legislature is now back in session—the provincial state of emergency related to the COVID-19 pandemic was declared on March 18, 2020 and the Legislature’s spring session ended on March 23, 2020.

As we reported in a previous article on June 24, 2020, in response to the pandemic, the BC government took significant practical, economic, and legal measures to protect public health, the economy, ensure the proper functioning of the legal system and preserve legal rights.

The legal measures included thirty (by our count) Ministerial Orders issued by the Minister of Public Safety and Solicitor General under the Emergency Program Act, deemed necessary “to prevent, respond to or alleviate the effects of any emergency or disaster”.

A question that nagged inquiring minds was the constitutionality of such actions. This nagged the B.C. Ombudsperson too, who issued a report considering two Ministerial Orders that “exemplified” these concerns (Ministerial Order M098, Limitation Periods (COVID-19) Order No. 2, and Ministerial Order M139, Local Government Meetings and Bylaw Process (COVID-19) Order No. 2). The Ombudsperson concluded that:

“The Emergency Program Act does not expressly authorize the minister to suspend, amend or override otherwise valid statutes or regulations when acting under s.10(1). Do the opening words of s.10(1) implicitly authorize that? In my opinion, the words “acts” and “procedures,” read on their own and in the context of the Emergency Program Act as a whole, do not have the dramatic effect of transferring the legislature’s law-making power to the minister, let alone allowing the minister to then transfer those powers to others.”

In anticipation of such concerns, on the same day as the Ombudsperson’s report (June 22, 2020), the BC government introduced Bill 19 – COVID-19 Related Measures Act, which proposed to enact into law the Ministerial Orders made under the Emergency Program Act, and to expressly transfer the legislature’s law-making power to the Lieutenant Governor in Council (i.e. the executive branch – the Premier and Ministers) during declared states of emergency. The transfer is limited to the following:

“10.1(1) After a declaration of a state of emergency is made under section 9 (1), and for the duration of the state of emergency, the Lieutenant Governor in Council may, subject to this section, make regulations as follows to prevent, respond to or alleviate the effects of an emergency or a disaster: for the limited purposes of:

1. making an exception to an enactment;
2. establishing limits on the application of an enactment;
3. establishing powers, duties, functions or obligations that apply in place of or in addition to an enactment;
4. establishing conditions in relation to anything done or established under paragraphs (a) to (c).

(2) Without limiting subsection (1) and subject to this section, the Lieutenant Governor in Council may make regulations as follows to prevent, respond to or alleviate the effects of an emergency or a disaster:

1. suspending the application of a provision that establishes a limitation period or a period of time within which a proceeding or process must be commenced or a step must be taken in a proceeding or process;
2. setting out a replacement limitation period or period of time for one suspended under paragraph (a) of this subsection;
3. authorizing an issuer of a permit, licence or other authorization to modify the conditions of a permit, licence or other authorization or to add or remove conditions of a permit, licence or other authorization;
4. authorizing a person, tribunal or other body that has a statutory power of decision to waive, suspend or extend a mandatory time period relating to the exercise of that power.”

The Bill also allows for the extension of those orders beyond the end of the provincial state of emergency, empowering the Lieutenant Governor to extend them for up to one year after the Act is brought into force.

The Bill was modified between second and third reading, to add a requirement for the Minister responsible for the Act (currently the Minister of Public Safety and Solicitor General) to report any measures taken under the Emergency Program Act to the Speaker of the Legislature within 5 days, and for the Speaker to have the measures laid before the Legislature as soon as possible.

On July 8, 2020, the slightly modified Bill was given Royal Assent, and on July 10, 2020, it was brought into force (and tweaked) by Order in Council 391.

On balance…

In the author’s view, there is a legitimate need for emergency governmental powers in an emergency, especially a fast-moving, far reaching one like the COVID-19 pandemic. Without impugning any actions taken or the genuine motivations of the government to alleviate suffering and hardship, one may nonetheless question whether the COVID-19 Related Measures Act strikes the appropriate balance.

Previously, emergencies could be thought of in timeframes of days, weeks, and perhaps months. Considering that the Legislature only meets sporadically, allowing a Minister or the Lieutenant Governor in Council extraordinary powers makes a good deal of sense.

But now, with COVID-19 and the ever-present threat of a resurgence (both of this first wave and the anticipated second wave), we’re in for a long haul – many more months, and perhaps a year or more. However, the Legislature is in session and proving the fact that it is able to function nonetheless. One can also reasonably expect that the Legislature’s processes will be adapted to satisfy democratic norms, as well as public health requirements (if the Courts can do it…).

So, is the transfer of power necessary or appropriate when considering the prospect of long term crises like COVID-19 (even if the state of emergency is being extended a mere two weeks at a time)?  Are the powers appropriate if the world is moving into extended periods of emergency arising from the broad and multifaceted effects of climate change (forest fires, flooding, drought, food shortages, mass migration etc.)?

Students of history and literature may also start breathing more shallowly when considering the many examples of emergencies being used to justify undemocratic alterations of the delicate balance of power between the executive and legislative (and sometimes even judicial) branches of government.

It remains to be seen whether the constitutionality of the COVID-19 Related Measures Act will be challenged in court, or whether action in the political arena will spur a re-evaluation of this critical issue.  In the meantime, we must be vigilant, not just to maintain physical distancing amongst ourselves that is essential to our personal health, but to maintain the functional distancing between the executive and the legislative branches of government that is essential to our democracy’s health.

Two final notes…

First, in our earlier article, we noted that the first draft of the Bill excluded M179 – Commercial Tenancy (COVID-19) Order, which prohibits evictions of commercial tenants if the landlord has not entered into a rent reduction agreement with their tenant that precludes evictions, and for that reason the landlord is ineligible for the Canada Emergency Commercial Assistance program. M179 has now been added to the list of Measures that are now law (see OIC 391).

Second, the COVID-19 Related Measures Act and OIC 391 create a somewhat difficult-to-follow matrix of orders, each with different effective and expiry dates. We’ve created the following chart to make sense of it (current to July 13, 2020):