A hastily imposed B.C. emergency order giving local councils authority to bar the public from meetings is being retroactively repaired by the NDP government, after B.C. Ombudsperson Jay Chalke said it was done illegally.
Chalke found that two of B.C.’s orders in the coronavirus pandemic exceeded their authority, one covering local government and the other allowing courts and tribunals to waive statutory deadlines for submissions.
The order for local councils was rewritten in June after concerns that some municipal councils had shut their doors to the public for months, without electronic access. The revised version requires local governments only to make “best efforts” to allow people to attend meetings, and “best efforts” to let people watch and hear proceedings via video, audio or phone.
Attorney General David Eby has introduced Bill 19, the COVID-19 Related Measures Act, to change the laws that Public Safety Minister Mike Farnworth overrode with public health orders. In an interview with Black Press Media, Chalke said Bill 19 addresses most of the problems he found.
It doesn’t change the suspension of public access to council meetings, courts or statutory decision-makers for environmental, forest and other permits, but Bill 19 makes that legal, and retroactively the actions that were taken under the orders will be legal once it passes. It also extends cabinet’s authority to continue emergency measures for up to a year without a province-wide state of emergency that expires every two weeks.
The order has left Vanderhoof, Masset and possibly other communities with no access to their local government for months, since the pandemic restrictions were imposed in mid-March. Chalke said he has received complaints about various municipalities in the pandemic, but he is prevented by his legal mandate from commenting on ongoing investigations.
“When passed, that legislation will validate those orders and that will address any concerns that anyone might have had if they have taken steps under those orders,” Chalke said.
The key point of his investigation into the emergency orders was that the cabinet can’t issue new legislation without some kind of democratic oversight from the legislature.
“If they’re going to be in essence making statutes, we recommend that the minister have to report to the legislature, which is a feature that you see at the federal level, and secondly that orders expire after a certain number of sitting days,” Chalke said.
The expiry provision, or sunset clause for orders, is not contained in Bill 19, he said.
When Chalke’s report was released June 22, it contained an unusually hostile response from Farnworth. Instead of the standard minister’s acknowledgement of recommendations from an independent officer of the legislature, Farnworth’s letter accused Chalke of exceeding his authority under the Ombudsperson Act by commenting on emergency orders.
Farnworth had no difficulty imposing another sunset clause, telling Chalke he had been offered an opportunity for input into Bill 19 and “unfortunately that window has now closed.”
Asked about his authority to check up on emergency orders, Chalke said: “I’m fully confident that our investigation was within the authority that’s established in the Ombudsperson Act, but for interested readers we’ve set out our opinion at length about why we felt it was within our jurisdiction.”
That opinion is on page 15-17 of Chalke’s report.