Orders of the Day

Hon. M. Farnworth: I call committee stage on Bill 19.

[2:25 p.m.]

Committee of the Whole House

BILL 19 — COVID-19 RELATED
MEASURES ACT

The House in Committee of the Whole (Section B) on Bill 19; S. Gibson in the chair.

The committee met at 2:29 p.m.

On section 1.

M. Lee: The comments made by the Attorney General and the Minister of Public Safety and Solicitor General on second reading…. I would like to, just at the front end of this bill, take the opportunity to walk through it so we have a common understanding of the nature of why this bill has come forward.

[2:30 p.m.]

Certainly, we all recognize the importance of our Emergency Program Act and the emergency orders that this government has put in place — over 30 emergency orders over the last 11 weeks — and the importance of ensuring that we have a smooth transition, as we go forward, through the balance of this pandemic and the aftermath of it.

But I’d like to just start here in terms of understanding, and recognizing, as well, that there is the ongoing work done by this government to modernize the Emergency Program Act. So certainly, I acknowledge that. In the course of that work, we’ve had COVID-19 occur. That, as we’ve heard from the government, has led to certain refinements or adjustments or amendments to the Emergency Program Act to come forward in this Bill 19.

As we look at this, the Ombudsperson did quite a bit of work to review the Emergency Program Act and the 30-plus emergency orders that were put forward by the government. In the comments that the Minister of Public Safety and Solicitor General indicated…. He said: “The Ombudsperson thinks that we should have done things differently. I respect that, but we disagree.”

Could I ask: in what areas did the government disagree with the Ombudsperson in how they brought forward changes to this act and the emergency orders themselves?

Hon. D. Eby: I am joined virtually by staff, who include but are not limited to Alex Stirling, Natalie Barnes, Paul Craven and Heather Fraser, both from my ministry and Ministry of Public Safety and Solicitor General.

I thank the member for the question. I think the core of the disagreement with the Ombudsperson is that our…. First of all, I think it’s important the member understands that this bill was prepared independently of the Ombudsperson’s report and is not a response to the report, but it does address some of the issues raised by the Ombudsperson. The core of our disagreement is that the Ombudsperson is of the opinion that the authority for, I believe it was, two or three of the orders just didn’t exist.

Our position is that when the act says that the Public Safety Minister can do any act or establish any process, that includes the acts and processes that were established during the emergency. So we have a difference of opinion on that. But it may be of no moment — that disagreement — because the proposed amendments here in the bill address that issue, regardless of your perspective on that legal issue.

The important thing to underline is that there is the modernization of the act and that work will continue on that process. I don’t think that anybody expected — but that is the nature of an emergency — to have an emergency arise in the period that we were engaging in the process of reviewing and modernizing the act. The Ombudsperson’s report, his suggestions, will definitely be included and considered as part of the broader reform, as will, I know, probably additional pieces of feedback that the Ombudsperson may have to share.

So there’s definitely a core disagreement on that one piece. But I think that, in terms of the bill that’s in front of the House, regardless of your perspective on that legal issue, the bill should address it.

[2:35 p.m.]

M. Lee: I appreciate the response and do acknowledge that the Ombudsperson, in his report, acknowledged the correction, at least to one order, and the understanding that legislation was coming forward and then went on, of course, to provide recommendations for the government to consider as to what adjustments ought to be considered to be made to the Emergency Program Act. Those recommendations, though, we certainly will be talking through in the balance of this committee process.

I wanted to note that in terms of…. Because of the significant body of work that was done by the Ombudsperson and his office on short order, in the midst of this emergency, provincially and elsewhere, I think it’s important that we understand and look at some of the important points that were considered to understand the government’s responses.

One of the indications is that…. On page 18 of the Ombudsperson’s report, he indicates that he and his office proceeded with the investigation of the government’s emergency orders “despite government’s objections and without its cooperation.”

To the Attorney General, did the Attorney General in any way restrict the investigative powers of the Ombudsperson, including under section 18 of the Ombudsperson Act?

Hon. D. Eby: I’m afraid I don’t understand the member’s question. I don’t understand how I could restrict the Ombudsperson’s authority to do the Ombudsperson’s job. It would be helpful for me if he could clarify how he believed that I might do that.

M. Lee: I’m first referring to a statement that was found on page 18 of the report. It indicates that when the Ombudsperson and his office proceeded with the investigation, he did so without…. On the top of the page: “In proceeding with the investigation despite government’s objections and without its cooperation….”

I’m just trying to understand — having not spoken directly with the Ombudsperson, only on the basis of his report, which has now been made public — the nature of that statement.

I would suggest to the Attorney General that when we look at section 18 of the Ombudsperson Act, there is an ability of the Attorney General to make certain certifications under the act, which would suggest that it would limit the inquiry of the Ombudsperson into certain matters. For example, where the Attorney General certifies that giving the information would “result in or involve the disclosure of proceedings of the Executive Council or a committee of it, relating to matters of a secret or confidential nature and that the disclosure would be contrary or prejudicial to the public interest.”

I’m just trying to understand, when I look at a statement in the Ombudsperson’s report, where it is that the government did not provide the cooperation to the Ombudsperson’s investigation and, secondly, whether the Attorney General exercised his authority under section 18 of the act to provide for a certification, which would, in effect, limit the ability of the Ombudsperson to conduct his investigation.

[2:40 p.m.]

Hon. D. Eby: You do find something new every day, in terms of the responsibilities and duties of this office. As Attorney General, I was not aware that I had the ability to stop the Ombudsperson from investigating using section 18 certifications. So I thank the member for drawing that to my attention. I can advise him that I did not issue any such certifications.

The Chair: Just a reminder that we are on section 1.

M. Lee: I am just establishing the underpinnings of this bill and wanting to understand the nature of the review, where issues that were pertinent to this bill were raised by the Ombudsperson. So I just have a few more questions to clarify that point.

In hearing the response from the Attorney General, the question is: how did the government fail to cooperate with the Ombudsperson’s investigation?

Hon. D. Eby: It seems to me that that is a question for the Ombudsperson.

M. Lee: Well, I think that opens up a certain line of inquiry which…. Certainly, if that is an invitation to make that inquiry with the Ombudsperson, I would expect that members of our caucus will certainly look for that opportunity.

Let me just say this then: what requests for cooperation were received by the government from the Ombudsperson that the government did not comply with?

Hon. D. Eby: Thank you, Mr. Chair, and keeping your reminder in mind, I’ll point out to the member that I was quite clear to him that this bill is not a response to the Ombudsperson. It was prepared independently of the Ombudsperson, not out of any kind of malice or spite or ignoring the advice of the Ombudsperson. It’s just that we knew that the state of emergency would end at some point and bring with it the end of the emergency orders that have been made during the emergency, and we needed some way to wind down those orders in an orderly fashion to address the core issues and try to minimize the impact on British Columbians who have been affected by those orders.

That is what this bill is about. So I do appreciate that the Ombudsperson has issued an important report and has a number of concerns that he has put on the record about some of the orders — three, I believe — that were issued during the period as well as about the act itself. Fortunately, some of those concerns are addressed by this bill. Happy to canvass them with the member.

I don’t believe that the member’s questions relate to this bill at all, but to the extent that the Ombudsperson had an exchange with my office and the Minister for Public Safety, I can certainly refer him to the report. I believe the Solicitor General’s letter is included in the report as well as the response from the Ombudsperson over a discussion on jurisdiction of that office. The member might find that helpful. None of those issues are addressed in this bill.

M. Lee: I appreciate the opportunity to go through the considerations raised by the Ombudsperson. As I say, when we are called back into special session, as we are doing right now, I could think of no more pressing matter than to spend the time of this House going through what is a bill, Bill 19, that changes the Emergency Program Act.

[2:45 p.m.]

When this province is in a state of emergency, and this government is proposing a bill that amends that act, I think we should take all time, care and attention to review the provisions of what’s being proposed. So when the independent Ombudsperson comes forward with a 60-page-plus report, with appendices, and takes the time to walk through the nature of emergency order management in this province, I think members of this House should take the opportunity to consider that report.

That’s the reason why I’m raising those issues today. That’s the reason why I believe all the issues that I’m raising here on section 1 of this bill are directly pertinent to this bill itself.

The Attorney General just mentioned the letter dated June 12, 2020, which is appendix B of the report, the response from the Minister of Public Safety and Solicitor General. It does have a statement which I would like to ask the Attorney General…. If he could please explain the basis for which the government took the view when the Minister of Public Safety said that “the government is also of the view that it has no obligation under the Ombudsperson Act to respond to your draft report or its recommendations.”

Hon. D. Eby: Now, noting that government was already working on the legislation before we were aware of the Ombudsperson’s planned report, I will note that there are some specific areas that the Ombudsperson raised as concern that the legislation does address. In particular, if this bill passes, it’ll make it clear that orders were valid from the date they were issued. That was a concern of the Ombudsperson.

[2:50 p.m.]

The second is that it will amend the Emergency Program Act to clarify authority to amend or suspend provisions of other statutes, which was also a concern of the Ombudsperson and is contained in this bill. And it will amend the Emergency Program Act to require an assessment of the proportionality of the benefits and impacts of a regulation which amends or suspends the provisions of another statute.

Now, this bill is not intended to replace the more comprehensive modernization of the EPA that’s underway, and further changes can certainly be considered as part of that process. But I note that the Ombudsperson did comment to media that when this bill is passed, it will address any concerns that anyone would have that was relying on these orders.

The Ombudsperson also expressed an interest in having some additional oversight of emergency orders, in particular, among two concerns. One of them was that there be an obligation to report to the Legislature. I trust that the other member has received notice. My staff advised him the Third Party, the Green Party, has put forward a proposed amendment that would require the Minister of Public Safety to report to the Speaker’s office, which I’ll be moving at the appropriate time in this process. That will address, hopefully, yet another of the Ombudsperson’s concerns.

We have the Ombudsperson saying that when this bill is passed, it’ll address any concerns that anyone would have who relied on these orders. We have another concern of the Ombudsperson that’s been raised. The Third Party has put forward in an amendment — and I’ll be actually putting it forward formally here in the House — around reporting to the Speaker’s office and, by extension, the Legislature. So a number of those concerns of the Ombudsperson have been addressed.

We have, obviously, a couple disagreements with the Ombudsperson’s office. The first is that the Ombudsperson disagrees with our understanding of jurisdiction under the emergency act — in particular, that any act and any process does not include the acts and processes that the Minister of Public Safety put forward in three of the orders. It’s a disagreement. We also have a disagreement about the Ombudsperson’s ability to review law and declare it valid or invalid.

These are exchanges that happen between legislative officers and governments. I know the member knows that. But at the end of the day, I think a couple purposes of both offices have been achieved. One is that the Ombudsperson had a number of concerns, and a number of them are addressed here and will be addressed through an additional amendment.

The second is that the government, during the pandemic, the height of the pandemic emergency, was called upon to alleviate the problems that resulted from significant and quite dramatic public health orders that had to be issued. That included things like ensuring that municipalities were able to conduct their business. I can advise members of this House, as Attorney General, it’s certainly my opinion that that was done in a manner within the statute. It was done in a legal manner, and it was done with best efforts.

That goal of alleviating the suffering of the pandemic through emergency orders was achieved. The goal of the Ombudsperson’s office around raising concerns about areas of the statute that need improvement — successfully raised, happily addressed and will also be further addressed in a secondary process that’s coming.

I hope that helps the member understand some of the dynamic of this very fluid situation that we were in and our work now to make sure that those emergency orders can be unwound appropriately to continue to minimize the impact on British Columbians of the pandemic and, by extension, the end of the state of emergency. Also, the need to clarify the act so that these disagreements between our office and the Ombudsperson are not important about what the act actually means, because it says explicitly what we believe it means right now….

The Chair: Just a reminder that it would be recommended that the member ensure that his remarks relate to section 1. Thank you.

M. Lee: Thank you, Mr. Chair, for that reminder. The exchange that we are having, I believe, relates to the entire bill.

[2:55 p.m.]

As the Attorney General just summarized, there are a number of elements, either in the bill or in his response, that address parts of the Ombudsperson’s report. I am concerned that there are still a number of other recommendations that are not addressed.

The other aspect that the Attorney General just spoke to was the oversight function — you might call it transparency, accountability — which the Ombudsperson spoke to. That’s something that, certainly, we can consider when my colleague the member for Saanich North and the Islands tables his amendment through the government in terms of the reporting function.

I wanted to come back to this one piece in terms of the Attorney General’s response just now, and that is, in the absence of the oversight from the Ombudsperson…. The government is also of the view — in its letter of June 12, 2020 — that the Ombudsperson Act does not provide jurisdiction for the Ombudsperson to conduct an investigation into the ministerial orders in question. As the Attorney General indicated, there is a disagreement between the government and the Ombudsperson about his office’s jurisdiction. That is summarized, in effect, in terms of the statement I just read out.

To the Attorney General, if the Ombudsperson does not have jurisdiction to review the emergency orders, who does?

Hon. D. Eby: The ability to review statutes for orders or regulations for compliance with enabling statutes, in our opinion, appropriately resides with the B.C. Supreme Court. The process by which a party can apply for judicial review, or review by a judge, of whether or not an order was appropriately made exists outside of the emergency context as well. The courts have that superintending jurisdiction, in our opinion, in relation to emergency orders as well as a number of other areas of government action.

M. Lee: I would note to the Attorney General that in other jurisdictions of this country when asked through the court system about the purpose of the Ombudsperson’s office, the Nova Scotia Court of Appeal, for example, found that the legislative purpose of the Ombudsman Act in that jurisdiction is remedial. It’s meant to oversee the workings of government by providing an independent and impartial review of provincial and municipal departments.

There is a dispute between the government and the Ombudsperson’s office about the term “matters of administration” and how that comes into play under subsection 10(1) of the Ombudsperson Act. We don’t need to drag through that here in detail at the committee level, but I do note that the Ombudsperson and his office are charged with the responsibility to review matters of administration. And in the Ombudsperson’s view, that includes, clearly, the emergency orders.

That’s the role and function. In the absence of that, as we go through this bill, we need to consider what the appropriate checks and balances and the safeguards are around the extraordinary powers of this government — or any government, whether it’s this current government or a future government in this province — that they will have the ability to exercise under this Bill 19.

Let me just go to an aspect around timing here. From the exchanges with the Ombudsperson, there was an indication, at one juncture, that the Ombudsperson would have the opportunity to review this bill. At the tail end of this June 12 letter, regrettably — at least, from my point of view — that window was expressed to have closed. Can I ask the Attorney General why it is that the Ombudsperson was not given this opportunity to review this bill?

[3:00 p.m.]

Hon. D. Eby: The timelines on drafting and getting through the various cabinet committees to get it together in order to be able to introduce it in the House in this session were incredibly tight. Unfortunately, we lost the window for the Ombudsperson to be able to provide that review. Happily, as I’ve gone through in some detail a couple of times now, a number of the concerns of the Ombudsperson have been addressed both in the bill and also through an amendment, which I’ll be moving soon, brought forward by the Third Party.

I do understand the member’s questions about jurisdiction and about oversight. I think these are, without question, important discussions. However, I’m not sure that they’re related to the bill, beyond my pointing out that many of the concerns of the Ombudsperson have been addressed. Those that remain will certainly be incorporated in the full process of the modernization of the act itself.

I hope that provides the member with some assurance and confidence that this bill, which has a sunset period of a year…. That was the Ombudsperson’s other concern — that there be an expiry date on emergency orders. It can provide him with some confidence. I’m hearing his concern about oversight, his concern about transparency, and so on.

This is a bill that expires in a year, that addresses many of the Ombudsperson’s concerns, that provides a necessary unwinding of emergency orders made during the pandemic in an orderly way to benefit British Columbians. It clarifies aspects of the act that both the government and the Ombudsperson agree, at a minimum, need to be clarified.

I hope that will lead him to support the bill.

A. Olsen: With respect to the new terms that are highlighted in section 1, “COVID-19 provision” and, also, an “EPA instrument….” That seems to suggest that all COVID-19 provisions were either an order or a regulation, and they are contained within schedule 1 or 2 of this act.

Were all the measures taken by this government during this state of emergency done through an order or a regulation? Were there any other powers exercised that fall outside the scope of this bill?

Hon. D. Eby: There are a number of questions the member asked. I’ll do my best to answer them in order, but if I miss anything, I’m sure he’ll clarify.

The term “EPA instrument” means the order or regulation as it exists when it’s made during the state of emergency. When there’s an order made under the EPA, which is the shorthand I’ll use for the act, as an emergency order…. Under this bill, it’s called an EPA instrument. This bill has the effect of bringing those emergency orders, or those EPA instruments, into law. When this bill, if it passes, brings them into law, they will become a newly defined term, which is a “COVID-19 provision.”

That’s the EPA instrument after it has been enacted through this act. That’s the distinction between the two terms, and those are the two novel terms the member asked about. I hope that clarifies. If not, I’m glad to go over it in more detail.

[3:05 p.m.]

The second is that this act only relates to orders and regulations made under the EPA. There are many other orders and regulations made under other statutes, including cancelling by-elections, amending the bylaws of various professional colleges, and so on, but this act only relates to orders and regulations made under the EPA.

The third piece is in terms of availability of access to the information about these orders. Just for the member’s information, government has a practice of making all of these orders and regulations available publicly on bclaws.ca.

I apologize to the member. I should say: “To the leader’s question.” I congratulate him on that.

To the Leader of the Third Party’s questions, government makes these orders and regulations available publicly on bclaws.ca.

A. Olsen: Do all the orders related to the COVID-19 state of emergency appear on schedules 1 and 2 of this bill?

Hon. D. Eby: No, not all orders appear on schedules 1 and 2 of the bill. There are some exceptions, for reasons that I’ll outline now.

Ministerial Order M179 is going to be added by regulation, because it is dependent in part on a federal program, the Canada emergency commercial rent assistance program. Now, that program has been extended, and we didn’t know that at the time this bill was prepared. We had expected that it would have an end date and that it wouldn’t, therefore, be in this bill, but it will be added by regulation. It does not appear on schedule 1 or 2.

Ministerial Order M195, which relates to residential tenancies — it’s residential tenancy COVID-19 order No. 2 — is also being added by regulation because it had not been made when this bill received first reading. It was ordered on June 24 and narrowed the grounds on which landlords are prohibited from evicting. It increased the number of categories where evictions are allowed. It allows landlords to evict for damage to their property and to occupy the property for their own use, but they still cannot evict for non-payment of rent — just to give you some examples about that, of what’s contained in that order No. 2.

Now, the last two are not included in schedules 1 and 2 because the reasons for them existing have passed or are about to be, hopefully, made irrelevant.

Ministerial Order M083 is the original local government order, which was superseded by a more recent local government order. So the original local government order doesn’t need to be included.

Then Ministerial Order M161, which was the original emergency order related to the witnessing of wills, is going to be replaced by the bill that we’ve tabled in the House, modernizing wills and estates processes in B.C., including allowing distant witnessing, essentially, of testamentary instruments through electronic means. The order doesn’t need to be there, because it will be replaced by a new law.

Section 1 approved.

On section 2.

M. Lee: I just wanted to look at this particular provision — which is the prevailing provision where there may be conflict — when this is compared against section 26 of the Emergency Program Act.

[3:10 p.m.]

Looking at the language there, 26 does not provide that orders made by the minister under section 10.1 take precedent over other legislation. The question is: why is there a difference in this provision under Bill 19?

Hon. D. Eby: The reason for that — I thank the member for asking the question; I’m relying on staff for this — is that under the Interpretation Act, emergency orders are deemed to be regulations. That is why that section refers to regulations.

A. Olsen: Perhaps you could provide an explanation as to why this section is necessary in the short term, given that section 6 repeals it within a year of the bill’s passage?

[3:15 p.m.]

Hon. D. Eby: The amount of time that the law will be in place doesn’t change that we need the COVID-19 provisions, which are, remember, those emergency EPA act provisions that are brought into law. They have to be paramount because they modify or suspend — not all of them, but many of them — the application of other laws. So if they weren’t made paramount, then they wouldn’t necessarily be interpreted to modify or suspend the application of other laws.

It doesn’t matter how long the law is in place. If the intention is — and it is our intention — that these emergency orders continue for a certain duration, 45 days, 90 days, if they have to be extended, they need to take precedence over the laws that they modify or suspend. I hope that addresses the question.

A. Olsen: Just in terms of the conflicts, what conflicts would you imagine this deals with? And can you maybe provide a couple of conflicts that this section would avoid?

Hon. D. Eby: The Power of Attorney Act is a good example of a law that an emergency order purports to amend. It requires that enduring powers of attorney need to be signed and witnessed in the presence of another person. Now, Ministerial Order M162 says the condition is satisfied if the process in M162 is followed. If not, for the conflict…. If there wasn’t a conflict provision, it wouldn’t be as clear that Ministerial Order M162 overrides that part or supersedes the Power of Attorney Act.

It might not be a perfect example, because, of course, that’s one of the provisions that’s not actually in the schedule. A better example might be the Limitation Act. The Limitation Act says that a person has to start a lawsuit within two years of the events happening that give rise to the lawsuit — in many cases, but not in all cases. That’s not legal advice. Talk to a lawyer.

Ministerial Order M098 extends that time for the period that the ministerial order is in force. So if this conflict provision wasn’t there, it wouldn’t be necessarily clear that it overrides the Limitation Act so that the person is still able to go to court about that dispute, even if it’s more than two years, because, obviously, there was significant curtailment of access to registries in the province, court registries in the province, to file those lawsuits, especially for self-represented litigants.

We could go through different acts — the Residential Tenancy Act, Commercial Tenancy Act and commercial tenancy provisions of the law — and the goal is to have these ministerial orders, to have it be clear for any reviewing court that the ministerial order comes first. Where there’s conflict between the ministerial order and the underlying law that it modifies or suspends, the ministerial order takes precedence.

Section 2 approved.

On section 3.

M. Lee: I appreciate that we’ve had some discussion regarding the schedules, but if I could ask the Attorney General: what was the rationale to divide the existing emergency orders between 90 days and 45 days of extension?

[3:20 p.m.]

Hon. D. Eby: Individual ministries and, in some cases, stakeholders advised what expiry period was most appropriate. There were various factors considered, including how much time citizens needed to prepare for the order to end, how long it would take to make permanent changes if they’re needed and how long it would take to unwind the effects of the order after the end of the state of emergency.

There’s obviously a goal here, which is ensuring that there’s sufficient time to facilitate a smooth transition. We might not get it perfect. Some orders might need to be in effect longer than others after the end of the state of emergency.

An example of that is that the ministerial orders that allow meetings to be held electronically needed to be extended for at least 90 days, because the orders were made in response to the public health order in relation to gatherings of more than 50 people and guidelines on physical distancing. Now, depending on how long those orders persist for in British Columbia — how long we need them — they may need to be extended again beyond 90 days.

Another example. The Prohibition on Unconscionable Prices for Essential Goods and Supplies order — that’s Ministerial Order M115 — is also continued for 90 days. Again, we and many provinces remain…. Although we have access to significant personal protective equipment for hospitals and first responders and so on, it remains prudent for us to be able to manage supply chain issues and prevent excessive prices in the event that shortages do manifest in some area as a result of the state of emergency. The need is expected to last beyond 45 days, but that’s where it is on the schedule.

Those EPA instruments that could be ended immediately, at the end of the state of emergency, were given 45 days to ensure that we didn’t have any unanticipated consequences that caused grief or distress for British Columbians. Really, enacting them all allows for us to extend them if necessary, if, at the end of the state of emergency, it turns out that some people…. If people don’t need for them to be extended, they won’t be extended, obviously.

Examples of orders that government plans to repeal at the end of the state of emergency are Ministerial Order M094, the Protection Against Liability Order, which was replaced by Ministerial Order M120. Ministerial Orders M128, M150, M152 and M166 dealt with encampments in Victoria and Vancouver.

M. Lee: I would also like to ask why the period of one year was selected in terms of length of time for the outside date for any of the EPA instruments.

Hon. D. Eby: I think that there are a number of knowledgeable people who indicate that the effects of the COVID-19 pandemic may, in fact, endure beyond one year, depending on when a vaccine or effective treatment is developed. However, this one-year period was set as the maximum expiry date for a couple of reasons, even though we reasonably anticipate there may be orders or restrictions that last beyond one year.

[3:25 p.m.]

The sunset clause is really meant to balance the breadth of authority given to the executive committee with the need to ensure that the Legislature works as intended. We believe that a year provides more than enough time to identify transitional issues and identify whether permanent changes are needed to different acts.

It’s quite difficult in this period to understand all the effects of the pandemic, in terms of public policy, and the impacts of unwinding some of these emergency orders. When we extended limitation periods, for example, there was an unintended impact on builder’s liens processes that we didn’t anticipate. We had feedback from people affected by that and had to change the order.

As we unwind, we expect there will be some unanticipated consequences that need to be addressed. But we think that a year gives enough time to be able to extend as needed, but also for the Legislature and Legislative Assembly to consider and potentially pass, if necessary, more permanent measures around, for example, electronic meetings for more than 50 people in areas like societies and for other groups that need to have large annual general meetings and these kinds of things.

These are permanent changes that could be brought in, similar to the manner which we did around wills witnessing, which is in front of the House right now in a separate bill. The reason why that one was able to come forward so quickly is a lot of work had already been done on that — not anticipating COVID, but just because the act needed to be modernized. We don’t have that for all of the other areas that have been affected by the orders.

So a year felt like a good balance between the need to extend, as necessary, given the distinct possibility of a second wave, as we’re advised by Dr. Henry, but also to understand that if, in fact, something needs to be extended beyond a year, the Legislature should be the one to pass a permanent amendment to address that, rather than to do it through an extension of an emergency order.

A. Olsen: Thank you to the Attorney General for his responses. I think his responses to the member’s previous questions generally captured the question I had around the difference between schedule 1 and 2 and how one order ends up on one schedule and how other orders end up on the other schedules.

I think, maybe to dig in a little bit deep on the difference between the 45 days and the 90 days expiry, maybe the minister can clarify a little bit. Is there a policy test that’s been developed to inform these choices — recognizing, of course, that other items could be added, at least in the extreme short term, to this as well? What is the policy test that’s being used to develop where an order may land on these two schedules?

Hon. D. Eby: I do want to clarify one of my earlier responses, just around schedule 1 and 2. I thank the member for the opportunity to do this.

[R. Chouhan in the chair.]

The orders that are contained in schedule 1 are there because they are retroactive to the date the emergency started, in terms of their effect. The orders that are in schedule 2 are effective from the date the order was made.

[3:30 p.m.]

Whether or not an order is in schedule 1 or schedule 2 doesn’t affect whether it’s 45 or 90 days. I think I garbled those two. I just wanted to be clear about why they’re in schedule 1 and schedule 2.

The policy test the member asks about was quite a straightforward test. It was the advice that we received from individual ministries and from some stakeholders around which expiry period was most appropriate, given factors like how much time citizens needed to prepare for the order to end — in some cases, for court registries, the understanding of the courts about how much time was needed to unwind and to ramp up the services that they needed to provide as people showed up back in registries to file lawsuits and so on and other actions and matters that they might have held off on during the pandemic.

We did that outreach work with some stakeholders and, certainly, with ministries about their understanding of what was needed. It is not a perfect science or a perfect test, which is why there is that ability to extend orders as necessary.

As for orders that may be made at a later date under the state of emergency that aren’t already made, they are not automatically assigned either a 45- or 90-day period. The length of time that it continues after the state of emergency would be determined, again, with engagement of stakeholders and affected ministries.

A. Olsen: Just following up on the question with respect to the one-year maximum expiry date that was asked by the member opposite, I appreciate the previous response. I think that in the context of the House here extending emergency powers beyond the actual state of emergency, just hearing the Attorney General on the fact that we have a fall legislative session currently on the books for the legislative calendar this year…. We’ve also got a spring legislative session in 2021 that falls within this one-year period.

Just maybe a little bit of clarity on why the government has chosen to extend that one-year period, especially in the light that the minister has noted that this House and this chamber is the place where those extended policy decisions can be debated and discussed and then voted on.

[3:35 p.m.]

Hon. D. Eby: The concern that the one-year period is meant to address is relatively straightforward. The Lieutenant-Governor-in-Council or cabinet can make orders much more quickly than calling the Legislature together, getting all the members here and introducing and passing legislation. The understanding that we have of this emergency is that conditions can change relatively quickly and that the need to modify or change orders to respond to evolving situations on the ground might come on quite urgently. So the goal of this is to allow government to respond to the emergency.

The obvious question that flows from that is: well of course it’s faster, but does that mean it’s better? What about the importance of oversight of the Legislature? I agree. It is critically important that the Legislature has oversight of government and, in the absence of that, that there be some other form of oversight established. Section 3(9) in this proposed bill creates authority for the courts to oversee any action taken by cabinet — among other areas of the bill.

In particular, section 3(9) says that cabinet can only make the order if it’s “satisfied it is necessary to do so to respond to or alleviate the effects of the pandemic.” This is a significant restriction overseen by courts.

Beyond that, certainly, with the member’s amendment that government has endorsed and will be tabling as a government amendment to require the reporting to the Speaker of all orders, to the Legislature of all orders, that will also enable…. We’re in a minority parliament. It will also enable the Legislature to, at the next sitting, repeal or change the law that enabled the provision to be passed.

There are significant…. In this situation, I would say there are more safeguards in a minority parliament. But there are significant safeguards, recognizing that not all parliaments are a minority parliament, including judicial oversight of government’s conduct in ensuring that the orders must be related to and government has to be able to show that the order is related to alleviating the effects of the COVID-19 pandemic.

Simultaneously, another safeguard is the sunset period that we’ve spent some time discussing.

A. Olsen: Thank you to the Attorney General for the answer. He almost answered the next questions that I had. So that was fantastic foresight.

Just in the context of that necessity test. That might be the correct or incorrect language, but where sub (9) says, “only if satisfied it is necessary,” I think the minister’s response was that it can be deemed necessary if it’s in response to COVID-19. Is that correct? Are there any other conditions around “only if satisfied it is necessary”? Is that just in the context of COVID, or are there other aspects of that?

Hon. D. Eby: This is limited to COVID-19 only. It’s limited to responding to or alleviating the effects of the pandemic. “Effects” has its common meaning, the practical and legal consequences of the pandemic. It’s important to note the word that was chosen is “necessary,” not just “preferable.” The words “necessity test” are right. The word in the statute, though, is “necessary.” It’s necessary to alleviate. It’s not just preferable.

[3:40 p.m.]

So it is a more strict test than “it seems better to do it this way.” When you read the test as a whole, it’s limited to COVID-19. Government has to show that it’s necessary. And “the effects” mean, obviously, the practical and legal consequences of the pandemic. Examples would include requirements for physical distancing, inability to meet in person, restrictions on visitors to facilities, reduced services at businesses, and so on.

A. Weaver: My question is to the Attorney General on this section. I’m hoping to get some clarification as to how he sees these enhanced powers playing out. My concern in hearing some of the aforementioned somewhat confusing statements was that I got the sense that people were concerned about potential government overreach — that perhaps, somehow, government may take steps to do things that, in a majority government, might be more common than perhaps in a minority government, where there are more checks and balances.

My worry, at the same time, is that when we are in crises, we need to empower governments to act on the turn of a dime. I look at many of the world crises out there. Government has done a truly exceptional job dealing with COVID to date. I recognize that there’s a difference of opinion with some of the Ombudsperson’s remarks as well as government remarks. Those are a matter of legal difference of opinion. I suspect they could, you know, take this all the way to the Supreme Court of Canada, arguing who is right and who is not.

My worry about putting in too many checks and balances — certainly, we need some — is that government will no longer have the power to do what it needs to do in a timely fashion if, not when, COVID returns. And it will return with a vengeance, sooner than we think.

My question to the minister is this. Right now the minister is armed with a number of tools, one of which is declaring a state of emergency, obviously — bring back the Legislature and start, you know, passing laws or issuing some orders-in-council. How would the minister see a situation like this playing out given the legislation before us and given any potential concerns that have been raised?

Let’s suppose, hypothetically, the state of emergency is not on provincially. But let’s suppose, hypothetically, a plane arrives in Kelowna, and somebody goes to an old age person’s home in Kelowna, and suddenly there’s an outbreak there. And then suddenly it starts to go in a few other places. To what extent can the government act — specifically, locally, regionally — to deal with something on the turn of a dime that it needs to do, instead of actually calling back the Legislature to hum and haw? And to what extent does this legislation, as it’s put forward, allow government to continue to be able to respond in a very timely fashion?

I can’t overestimate how important it is for government to be able to respond in a very timely fashion to the issues as they play out with this pandemic. We just have to look south of the border as to what’s happening there. All it takes is one big celebration of 10,000 people in Stanley Park, and government is going to have chaos on its hands. So to what extent does the government have the tools available to it, right now, in the legislation, in the form it is presented to us, without actually having to bring back the Legislature, call a state of emergency and so forth?

[3:45 p.m.]

Hon. D. Eby: I thank the member for Oak Bay–Gordon Head for the question.

Obviously, front of mind for everybody is ensuring that the tools are in place to prevent or mitigate the effects of a second wave of the pandemic. I know that’s front of mind for the Health Minister, for Dr. Henry, for everybody working in public health and for most British Columbians as well.

I definitely appreciate the member’s comments about the efforts of those folks, including all British Columbians, to get us in the place that we’re in right now, which is a good place. But it certainly is, as the member points out, not guaranteed.

I will draw the member’s attention to section 9(1) of the EPA, which allows a declaration of a state of emergency — not exclusively provincewide, but it includes a local or regional state of emergency. It is possible that government could declare a local or regional state of emergency for an affected area, if there was an outbreak and it was necessary to do so. That’s one possible mechanism, other than recalling the Legislature.

The second possible mechanism. This act does not affect, at all, public health orders. They can be issued by public health, in relation to individuals or facilities, to mitigate the risk of the transmission of an infectious disease, including COVID. That is another set of powers that exist.

The third is, obviously, the powers that exist under this law to extend existing emergency orders and to respond if the events the member sketches for us took place within the next year. Those are three of the mechanisms.

The member is right. This bill could have included provisions that allow government to create new COVID-related orders outside of the Legislature. It doesn’t do that.

It is a balance. It’s our belief, in putting this in front of the House, that with the ability to declare local or regional states of emergency, if necessary, with the public health orders that are in place and with the ability to extend these provisions, we have the tools necessary to ensure that British Columbians are safe, and, not just that, that the effects of the pandemic are mitigated as much as possible.

The Chair: Member for Oak Bay–Gordon Head, do you have any further questions?

A. Weaver: I do. I’d just like to put another example. Let us suppose…. I’m sure what’s going to happen is more and more examples are going to come forward that people haven’t thought of — the unknown unknowns, so to speak.

For example, we know there is a requirement for annual meetings, AGMs, to be held under the Strata Property Act. The government did a ministerial order, and did so on the turn of a dime, to address that. Good for them. I don’t know how…. There would be problems there in terms of strata property meetings and people having to meet the legislative requirement for an AGM at the same time as you’ve got COVID going on. What government did is it stepped in and created the ministerial order. Good.

There will be other examples like this. My worry about this, of course, is that we don’t know what they are right now because they haven’t been brought to our attention. If government does not have the powers to be able to do this without declaring a state of emergency…. You wouldn’t declare a state of emergency, for example, in the case of electronic attendance at strata property meetings. You could do public health, but you may not have to do it everywhere.

There are so many examples. You might find that…. I’m going to be making something up. Never mind.

I’m worried again. Let us suppose something like the strata property issue came to government now. To what extent could government immediately respond, on the turn of a dime, to put out an order to ensure that strata properties did not have to meet face to face?

[3:50 p.m.]

Let’s say, for example, a by-election in a local government were to happen. Could they do that? If a local government by-election were to occur, could they, on the turn of a dime, switch and make it so that could be done through, say, electronic voting or something like that?

That’s the question, then, please, to the Attorney General.

Hon. D. Eby: I thank the member for the questions. If the situation is urgent enough, obviously a state of emergency would be appropriate. The member is kind of sketching out for us a scenario that’s just below that sort of state-of-emergency justification, but where there’s a need for urgent action. Obviously, statutory amendment is potentially available. You can call the Legislature together, and you could pass a statutory amendment.

It’s important to note that there are a significant number of regulations and policies in place within government that can be changed to respond to an evolving situation without needing to change the empowering statute. An example of that actually works quite nicely with the member’s scenario around by-elections — municipal by-elections.

There was actually Ministerial Order M082 that was issued during the pandemic. This was not an emergency act order that was made. It was actually made under the Local Government Act. There is a section of the act that allows the province to issue these kinds of regulations, and it was used in this particular situation to cancel by-elections in Victoria and Lytton. It’s an example of a power that exists within an existing statute that was used to respond to the emergency.

Now, I accept the member’s point, which is: maybe there won’t be a provision like that Local Government Act provision that allows you to alleviate the effects of the pandemic. It is really about the balance between respect for the Legislature and the processes of the Legislature and the need of the public for urgent response in a state of emergency. We think that this strikes an appropriate balance, and hopefully — here we are, four months into the pandemic — most of the major issues have surfaced and we’ve been able to address them. But I do take the member’s point.

[3:55 p.m.]

A. Weaver: I’ll just conclude and thank the minister and say that, in my view, it would be the height of irresponsible behaviour to call the Legislature back to pass a small statute change in the fall or some other time in the midst of a resurgence of a pandemic. That is why I’ve raised these issues, because I think that we can assure and ensure accountability, particularly in a minority government.

We can ensure transparency. We can ensure that government is enabled, in an act, of the ability to turn on a dime to continue to do what it has done, which is deal with this pandemic in an unparalleled fashion compared to anywhere else in North America. I would hope that we continue to do that, recognizing that there will be, almost certainly, things emerging that we are not aware of, where government will put forward a change through an order-in-council, and an Ombudsperson may or may not say: “We have a difference of opinion here.”

Again, I think we just have to reflect upon what it would mean to bring all of us back to the Legislature, zooming around B.C. with staff, etc., when we have the resurgence of the pandemic that is almost certainly going to occur in the fall, if not sooner.

M. Lee: I wanted to come back to the provision that we’ve been reviewing at length, sub 3(9). The inclusion of the test of necessity or necessary…. When we look at other jurisdictions that have similar tests, certainly for a Lieutenant-Governor-in-Council, like the Ontario Emergency Management and Civil Protection Act, there is additional wording in terms of the test. Were other best practices or other jurisdictions, in terms of legislation for emergency management, considered when this government brought forward this bill?

Hon. D. Eby: The member is right. The Ontario statute does have more language in its test. But the section that the member’s quoting that has more language is about overriding statutes. The section that the member is quoting from our act is not about overriding statutes.

The more appropriate comparison is section 8 of this bill that’s in front of the House, which creates a new section, 10.1. In that new section 10.1, it’s sub (3). It’s a proportionality test, and that, in our statute, is about overriding other laws or enactments. It has that proportionality test which was certainly inspired by what we feel is best practice in Ontario.

[4:00 p.m.]

In particular…. We’ll get there. It says that cabinet can only make a regulation if satisfied that the benefit of making the regulation is proportionate to the benefit of the continued application of the enactment as it is before the making of the regulation. It has to be proportionate to the impact.

We did look at the Ontario statute, and we did draw from that statute the practice of a proportionality test in relation to modifying or overriding another statute.

M. Lee: I appreciate the response. I think it does touch on a number of elements in this bill which we’re going to need to walk through, including the nature of the proportionality test, which we’ll get to in subsection 10.1(3).

Coming back to sub 3(9) then, the Attorney General’s response does raise a question as to…. This use of the term “necessary,” then, does not qualify in any way the use of the power of the Lieutenant-Governor-in-Council under subsection 10.1(1). Is that correct?

Hon. D. Eby: The regulation would have to already be made under section 10.1. So it would have to meet that test to make it. Then if you wanted to extend it, it would have to meet the test under sub 3(9). It would need to meet both of those tests.

M. Lee: I understand the response from the Attorney General to mean that the test that the Lieutenant-Governor-in-Council needs to meet in order to bring forward a regulation pursuant to sub 10.1(1) is the test set out in sub 10.1(3), which is the proportionality test, and that in order to add that regulation, once made, it needs to make the further test under sub 3(9).

I think the short answer, then, is that the test of necessity and the use of the word “necessary” here does not apply to the making of the regulation in the first place, under sub 10.1(1).

When we look at subsection 7.02(1) of the Ontario act, when we’re talking about orders that they may put in place, there is criteria for those emergency orders, which I would expect would be the equivalent of a new regulation passed by the Lieutenant-Governor here in this province, under this bill, if it passes in this form.

[4:05 p.m.]

That test deploys the test of “necessary and essential.” We will come to sub 10.1(1) — which, from what our discussion is, doesn’t have a test of necessity. That’s one point.

The second point, in terms of sub 3(9), is: when this government put forward this bill in this form, did it consider the term “necessary and essential”? Is there any difference, from this government’s point of view, in the meaning of this term “necessary”? Does it also mean “essential” as well?

Hon. D. Eby: In section 8 of this bill, which introduces section 10.1, the member is right; it doesn’t say “necessary.” But it’s there in sub (1) to “make regulations…to prevent, respond to or alleviate the effects of an emergency or a disaster.” It’s for the purpose of…. It’s necessary to do these things in order to “prevent, respond to or alleviate the effects of an emergency or disaster,” so it certainly is part of that provision. Then you also have to meet the proportionality test in sub 10.1(3).

Now, the member asked about “necessary and essential.” My understanding is that the drafting decision is that “necessary” sufficiently covers what we intended it to cover — namely, that it is necessary to respond to or alleviate the effects of the COVID-19 pandemic. It’s not obvious to me what “essential” would also add to the word “necessary.”

I’ll just note that the member continually uses the words “necessity test.” I’m not sure. He may have an understanding of that as a term of art, or maybe he’s just using a shorthand. I don’t know which. I’m not adopting his necessity testing, because I don’t fully understand what it means in law. But what I’ve put forward here is that the plain-language understanding of the word “necessary” — that it’s necessary to do this to respond — would include “necessary and essential.” It is not meant to be…. The word “essential” wouldn’t necessarily add — no pun intended — anything to this.

[4:10 p.m.]

M. Lee: I certainly appreciate, as we said at the outset of this committee process, that there will be the continuation of the efforts of the Minister of Public Safety and his ministry to modernize the Emergency Program Act. Some of this discussion that we’re having, perhaps, can be part of that process as we go forward to more rigorously look at the Emergency Program Act.

I would say that under the existing provision of the Emergency Program Act, which, after all, this bill is amending, it does have the word “necessary.” And as we will talk about as we get to sub 10.1(1), I’m curious as to why the government is suggesting that it doesn’t need that word. This is a little more than beyond drafting. Given the rushed nature in which this bill has come to this House, by necessity, I understand that. But I think that we need the clarity, of course, in terms of how the bill will function.

I have the Attorney General’s answer on this provision of 3(9), and we will certainly talk about sub 10.1(1), as I mentioned. But just to come back to what I understand to be, with the input of the Third Party, an amendment that will be coming forward as a government amendment, I certainly do recognize the importance of the reporting function, as did the Ombudsperson in his report.

Back to the notion or the requirement of one year. I ask: is there any amendment further necessary to this provision, with the one-year sunset, recognizing that there’s a further amendment that the government is proposing to this bill?

What I mean by that is…. I heard the Attorney General say in response to a few other questions back ago that it’s his expectation that when there’s a report tabled to the Speaker of this House on, presumably, the emergency orders, this Legislative Assembly will have the opportunity to review those orders. And then what — is what I’m asking — in terms of how will that process work? And if there is a change on that process of accountability, is there a need to change this section of the bill as well in terms of the one-year time frame?

[4:15 p.m.]

Hon. D. Eby: We had a bit of a discussion. It’s hard to tell. Normally, there are staff around me, and we turn around and have a nice conversation. It’s a bit more…. Well, it’s different.

I’m not totally sure, but I think that maybe the member’s question might best be answered when we’re discussing the proposed amendment, which I had proposed to move once section 3 is passed. I do understand that might frustrate his ability to get at what he wants to get at in terms of section 3. I’m not totally clear on the connection.

I just wanted to make sure that the member had received a copy of the text for the proposed amendment. No? Okay. So I’ll send over a copy of the text. I apologize to the member. It was my understanding that he’d been provided with that. This is not an official tabling of it. The member for the Third Party has seen it.

I might just take a moment for the member to review that and see if he wants to ask another question in relation to section 3 and how the two might be related, which I understand was the nature of his original question.

M. Lee: I certainly appreciate this and the proposed amendment tabled by the government to this bill, which will be a new 3.1. So it’s coming up.

I appreciate the Attorney General noting my concern about frustration. That is meant not in an emotional way but more in terms of an ability to work through the provision of the bill here.

Let me just say that the point that I am trying to convey to the government here is that now, seeing this proposed amendment, the first question…. I appreciate that we’re not speaking to the amendment yet. But for the benefit of clarity at this point, can I ask the question…? To restate it. Under the proposed amendment, there is some understanding that there would be a report filed and that the Speaker would lay the report before the Legislative Assembly as soon as possible. What is the expectation from the Attorney General as to what would happen next?

[4:20 p.m.]

Hon. D. Eby: I can advise the member that what would happen next is, potentially, debate in the Legislature or question period. In addition, there is superintending jurisdiction oversight by the courts, so the orders could potentially be challenged in court.

I can also tell the member that it’s my understanding that this has its origins in relation to a commission. I have to admit that I don’t have a great deal of background on this, but I’ll provide the member with, hopefully, enough clues that if he’s interested, he could dig into it if he wished.

The Ombudsperson’s interest in having a provision like this comes from a commission in Christchurch following the earthquake there and a process which is more detailed than this, whereby the Legislature has oversight of emergency orders in that jurisdiction. The goal of this is to provide transparency and opportunity for accountability to the Legislature as quickly as possible and also to provide members with notice of emergency orders so that they could take actions that they felt necessary, as opposition and third parties will do. The tools are there if necessary, up to and including legal action.

It is a piece of what the Ombudsperson, I think, is looking for. It’s coming from a separate jurisdiction, but there may be more discussion to be had around the modernization of the act, about other lessons, more feedback from the Ombudsperson, from the Third Party or from the opposition about additional pieces. I think, though, that the best approach might be to engage in this discussion about the amendment once the amendment has been tabled. But again, I don’t want to foreclose the possibility that the member may have questions related to section 3 that are informed, then, by the new 3.1.

The Chair: Members, given that other members haven’t seen the proposed amendment 3.1, including the Chair, maybe we should wait all of the questions around the proposed amendment 3.1 after we’ve passed section 3.

M. Lee: I certainly acknowledge your guidance. If I could just express my concern, that is in consideration of the amendment that will be tabled forthcoming after we get through section 3 here. I certainly would, in the debate on that amendment, be raising questions — including with my colleague the member from Saanich North and the Islands — about the consideration around timing.

To lay the report in front of the assembly, through the Speaker, as we have seen many reports laid in front of the assembly, like today — the judicial compensation report, the BCUC report…. Those reports are certainly tabled and laid before the House. As the Attorney General says, there certainly is the opportunity in question period to raise issues relating to the report or other reports that are tabled with this House.

As it is now, we have the opportunity, of course, in question period to raise concerns around the individual 30 emergency orders. Those opportunities are there when the House is sitting. We have that opportunity now, for the next five weeks to come.

I would suggest, as we go back to the comments that the Attorney General has made a few times now, in terms of judicial oversight…. There is judicial oversight and judicial review. But when I asked the Attorney General the question at the outset of who, other than the Ombudsperson, provides that oversight, I expected, actually, for the Attorney General to say: “This Legislative Assembly.” He did not.

[4:25 p.m.]

I think that’s telling. Really, even as we look at the amendment to come, and this one-year time horizon under section 3(7)…. When we consider the report that comes from government about emergency orders and gives this Legislative Assembly the opportunity to review, with government, whether the orders in the first place were necessary and were proportional…. These are the two tests that this government is putting forward in this bill to date. This Legislative Assembly needs to have the opportunity to review that, and if it’s not satisfied, those regulations or orders should not continue.

That should be the answer here, Mr. Chair, and as a result, the reason why I raised that concern around 3(7) is that regardless of that report, regardless of whether this Legislative Assembly is satisfied with that report, regardless of the answers that government might give in response to concerns about that report in question period, as the Attorney General suggested, those orders and regulations will still continue for a year after this bill.

There is no connection between this time provision in 3(7) and this report around accountability. It may be the first step around transparency that this government is following now in view of the recommendation from the Ombudsperson. When the Attorney General mentioned the review, it was an inquiry by the New Zealand government in the aftermath of those horrific earthquakes in 2010 and 2011. It was an inquiry.

We don’t have the opportunity of time here to be having an inquiry, to be calling witnesses and having experts come in and review legislation. That is going to be part of the next step on modernization, I expect. But that accountability that came out of the recommendations there that the Ombudsperson cited is what this government now is proposing. I think that in order to have any effect, we need to be looking at that provision, to provide it with some opportunity for these orders and regulations not to continue regardless of whether this Legislative Assembly has any issue with that report.

That’s where I believe…. And I would suggest again that the government ought to consider whether it’s prepared to make any further amendment to 3(7) such that it would be tied, in terms of timing, to a number of sitting days after the report is filed. This is actually a recommendation that comes from the Ombudsperson in his fifth recommendation, which says: “…that the orders expire after a fixed number of sitting days of the Legislative Assembly following the making of the order.” This is after the report has also been tabled. So for the government to come forward with half of the recommendation, I believe, in my view, is not effective. It doesn’t give the same level of accountability to this House.

Again to the Attorney General, would this government consider an amendment to 3(7) to adjust the timing such that the length of these orders and regulations be tied to a fixed number of sitting days after the report has been tabled?

Hon. D. Eby: The obvious reason for not tying it to a fixed number of sitting days…. As I’m sure the member will remember, when we went down for the session break before mid-March, I don’t think any of us expected that we would not be back in the Legislature for a period of more than three months.

[S. Gibson in the chair.]

If we tied the timelines to the number of sitting dates, the unpredictable nature of this emergency, in particular if we see a significant second wave — when we see a significant second wave, as Dr. Henry advises us — and the wisdom of reassembling the Legislative Assembly during that period…. I think what he is proposing could potentially….

[4:30 p.m.]

It’s unpredictable about how long this act would be in place, how long these orders would be in place. It was our feeling that it was much better to provide a time-speci­fic….

One thing that I can say to the member’s amendment that would recommend it is, you know, if we’re in the middle of a significant second wave of the pandemic, to have this expire in the middle of that one year, may be worth considering. But I do understand his suggestion to be limiting, proposing a shorter period than a year.

Anyway, it’s not totally clear to me that the proposed amendment would achieve his goals of shortening the period of time to make it less than a year. But I might misunderstand.

I do want to…. Before I spend a lot more time on this amendment, I do want to recognize that I have not yet tabled the amendment. Maybe we should pass section 3 and get on to the amendment.

M. Lee: I will just try this one more time. Just to clarify what my intention and my question was around sub 3(7), in view of an amendment that’s coming. The amendment that is coming proposes that there would be a report tabled to this Legislative Assembly.

I’m just looking as to…. Presumably, the question is…. It’s actually not clear from the amendment. I know that in other legislation that we’ve looked at — including UNDRIP, for example — that there is language that talks about when a report is tabled, when the House is sitting or when the House is not sitting.

So let me just ask. I’m assuming that this proposed amendment to 3.1 would be on the basis that the report would be provided to the House when it is sitting. If that is the case, then what I am suggesting to the government to consider under subsection 3(7) is that rather than having a one-year time period that is not tied to this report, we actually tie the time period to a fixed number of days of this House sitting after the report has been received when the House is sitting.

Hon. D. Eby: So the goal is really to provide some certainty to British Columbians who are affected by emergency orders, or who could potentially be affected. It is really difficult to plan your corporate AGM or your society AGM if all of the information that you have is that the order is going to expire, you know, three legislature sitting days into the next legislative session, whenever that might be.

So the goal of the one-year period is that people have certainty that this is going to expire. At the longest, it will be expired within a year. To provide as much certainty as we can around our intentions, which is that some will go 45 days, some will go 90 days, and there may be some that need to be extended beyond that. But no matter what the extensions, that they won’t be going beyond a one-year period. It is a tool to provide some level of certainty for British Columbians.

Section 3 approved.

[4:35 p.m.]

Hon. D. Eby: I rise to propose an amendment to Bill 19.

The Chair: Hon. Members, we’ll recess the House momentarily and return shortly.

The committee recessed from 4:36 p.m. to 4:44 p.m.

[S. Gibson in the chair.]

The Chair: The Attorney General has an amendment, and I’ll call on him now to speak to it.

Hon. D. Eby: I move the amendment to add section 3.1 that is in the possession of the Clerk.

[SECTION 3.1, by adding section 3.1 to Part 2:

Reports

3.1 (1) The minister responsible for the administration of the Emergency Program Act must report to the Speaker of the Legislative Assembly on the following made under that Act respecting the COVID-19 pandemic:

(a) an order made under section 10;

(b) a regulation made under section 10.1.

(2) The minister responsible for the administration of this Act must report to the Speaker of the Legislative Assembly on a regulation made under this Act.

(3) A report under this section must

(a) include a copy of the relevant order or regulation, and

(b) be made within 5 days from the date the order or regulation was made.

(4) On receipt of a report under this section, the Speaker must lay the report before the Legislative Assembly as soon as possible.]

On the amendment.

Hon. D. Eby: This amendment will, as I said, add a new section 3.1 to Bill 19.

The new section adds a requirement for the minister responsible for the Emergency Program Act, which I’ll refer to as the EPA, to report to this House with respect to any order made under section 10 of the EPA or regulation made under the new proposed section 10.1 of the EPA, if those orders or regulations are with respect to the COVID-19 pandemic.

[4:45 p.m.]

It also adds a requirement for the minister responsible for the proposed COVID-19 Related Measures Act to report to this House on any regulations made under that act, such as to provide protections from civil liability or to extend the effects of an order or regulation made under the EPA.

Such reports would include copies of the relevant orders and regulations. These reports must be provided to the Speaker of the Legislative Assembly within five days of the relevant orders or regulations being made. The Speaker must lay the report before the Legislative Assembly as soon as possible after receipt.

Now, it’s important to note that these reporting provisions will be automatically repealed along with sections 1 to 4 of the CRMA — the bill in front of the House right now — one year after the CRMA is brought into force. The automatic repeal of those sections of the CRMA, including this proposed section 3.1, recognizes that these portions of the act are transitional in nature and are designed to provide mechanisms for responding to the specific challenges of the COVID-19 pandemic but not all future emergencies.

There is a separate process. The issue of permanent reporting provisions in relation to emergency management in B.C. is an important discussion that will be considered as part of the broader modernization of the EPA that is being led by my colleague, the Solicitor General. Considering permanent changes of that nature as part of a more comprehensive modernization process is more likely to lead to consistency and coherence in the new emergency management legislation and also allows more time for policy and legal analysis as well as consultation with stakeholders.

Now, I do want to note that certainly it’s been the practice of government to provide extensive public information about emergency orders, but there is not a legal requirement for that. All ministerial orders and regulations in relation to the COVID-19 pandemic are immediately made public and posted online, and there is no intention to change that. This does, however, provide an important safeguard and is certainly a welcome amendment that was initially proposed by the Third Party and adopted, on their recommendation, by government.

I’m confident that this amendment is a critical piece of legislation that will support transparency and advance the principle of parliamentary oversight of executive decision-making during and after an emergency, which is an important principle that reports on emergency management best practices often recommend — namely, that parliament should have a role in scrutinizing how government manages emergencies.

I’ve heard from other members of this House who have expressed the importance of having these critical principles front and centre in this bill. I welcome the intervention of the Third Party to advance this. I am pleased to propose this amendment on behalf of government.

A. Weaver: My question with respect to the amendment is concerning the last component of it, if I might bring it up again here. With respect to 3.1(4), I’m wondering to what extent that is necessary. It says: “On receipt of a report under this section, the Speaker must lay the report before the Legislative Assembly as soon as possible.”

Maybe the minister could explain why that is added, because my understanding of the rationale for this is, of course, if the Speaker gets it, he should distribute it in a timely fashion. But it’s not clear to me that if the Legislature is sitting, we’d want to wait around for the Legislature to sit. If he could clarify what “as soon as possible” means or whether or not he just means it comes to the Speaker, and he just sends it off to all MLAs. If it is the latter, why do we actually have to have that in the amendment? It seems a bit heavy-handed.

[4:50 p.m.]

Hon. D. Eby: The understanding is that it’s quite possible that the House will not be sitting when a COVID order might be made. If the House isn’t sitting, how do you ensure that there’s a record? How do you ensure that the order is tabled?

To do that, you would be sent to the Speaker immediately. Then, as soon as possible, once the House is sitting, it would be then tabled by the Speaker before the Legislative Assembly. That provision provides the benefit of a public record in Hansard of the order as well as the Speaker’s receipt of it. And it’s certainly within the discretion of the Speaker to distribute the emergency order, which is certainly our expectation of what would happen.

So the member is correct in terms of our understanding that the Speaker, on receiving it, would distribute it. However, as a safeguard, it is fairly standard language on the receipt of reports that the Speaker lay it in front of the Legislative Assembly as soon as possible, once the assembly is sitting again. Now, if the assembly is sitting at a time when an order is made, that would obviously be once the Speaker receives it.

The Chair: Thank you. Now recognizing the member for Vancouver-Langara.

A. Weaver: Could I just follow up before, hon. Chair?

The Chair: Yes, please proceed. One person is ahead of you, but please proceed, Hon. Member for Oak Bay–Gordon Head.

A. Weaver: It was just on the same theme. There may be other questions. With apologies, hon. Chair, it’s difficult, when we’re on Zoom, to get your attention.

With respect to that, that is the reason why I asked the question — to get further clarification as to what the minister was actually expecting. It’s good to have him on record saying that his expectation is that the Speaker would distribute that electronically upon receipt and that the tabling of the report would be when the House next sat. But it’s nothing prohibiting us from actually getting it in a timely fashion, which is what I was hoping to get.

M. Lee: Well, I thank the member for Oak Bay–Gordon Head for raising this point and for clarifying with the Attorney General. I’ll invite the Attorney General to confirm that, because I did hear in his response to the member for Oak Bay–Gordon Head some element of discretion by the Speaker.

First of all, to clarify — that the Speaker, under the proposed wording of this amendment, doesn’t have discretion and that it is the expectation of the Attorney General that the Speaker, as it is currently written, will distribute that report, if the House is not sitting, to the Members of the Legislative Assembly.

Hon. D. Eby: The member is correct, if I understand his question properly, that it is my expectation. But I do note that the provision does preserve a discretion within the Speaker which could include the Speaker not distributing it until the Legislative Assembly is sitting. But the expectation would be that the reason why it is being sent to the Speaker is so that it could be distributed to members.

M. Lee: Given that this is the government’s amendment, I think it’s important to get clarity on the amendment itself. I mentioned that when I was looking at the amendment and speaking to it and wondering out loud whether there is a distinction as to when the Legislative Assembly is sitting or not sitting and recollecting Bill 41 as a point of reference. When I look at the language as an example of reports and how they’re dealt with under other bills that government has introduced to this House, I see an important distinction which actually goes to this consideration around discretion of the Speaker.

[4:55 p.m.]

In that Bill 41, it has two distinctions. One is that the report…. In that case, it’s a report on the action plan of government to adopt UNDRIP in this province. Lay the report for the period before the Legislative Assembly, if the Legislative Assembly is then sitting. That’s a direct report to the Legislative Assembly, which does not suggest that it comes through the Speaker.

Secondly, in the alternative, if the Legislative Assembly is not sitting, then that report is filed with the Clerk of the Legislative Assembly. Presumably, it is the Clerk’s responsibility, then, to ensure that every member of this House, the Legislative Assembly, receives, directly, a copy of that report. Again, no exercise of discretion by the Speaker.

I wonder and ask the Attorney General whether the government would consider the language in this amendment to have clarity along the same lines, in terms of the delivery of reports as, for example, was done under Bill 41.

Hon. D. Eby: The model that was followed was the model for independent officers of the Legislature and how their reports are tabled, the idea of accountability and of government being one that informs the establishment of independent officers and their reports. For example, the Ombudsperson, under subsection 31(1), provides reports through the Speaker. The Chief Electoral Officer for Elections B.C. is also through the Speaker.

I think the member raises, certainly, an interesting point. There are a number of statutory entities that do table their reports through the Clerk. Certainly, my expectation would be the same in terms of the distribution of it, whether through the Speaker’s office or the Clerk’s office. It was a choice made by the drafters to model it on the independent officers, which I think is a sound decision.

Not to say that the member doesn’t have a point. It could have gone in another direction, but I don’t follow his point so far as to suggest that there is necessarily one approach here that recommends itself over the other. It was just a decision to follow the independent officer route as opposed to the statutory entity route.

M. Lee: Turning back to the substance of the amendment, the report itself…. First of all, let me just ask the Attorney General: what will be the contents of this report?

[5:00 p.m.]

Hon. D. Eby: The amendment sets out the contents of the reports, specifically subsection (3), which says, “A report under this section must (a) include a copy of the relevant order or regulation,” and sub 3.1(3)(a) sets out the content of the report. Then for more specificity, relevant order or regulation is defined in sub 3.1(1)(a) and (b), which is an order made under section 10 or a regulation made under section 10.1.

M. Lee: If that is the only content of the report, does that provide any more information than what’s already provided on B.C. Laws, the site, in terms of orders and regulations that are published by this government?

Hon. D. Eby: There is no current obligation on government to report the orders, emergency orders, so this addresses that gap, although it has been the practice of government to report all orders through B.C. Laws and through the media and otherwise, to post them and make them publicly available. There’s not actually a legal requirement for government to do that, so this addresses that best practice issue identified by the Ombudsperson and various committees that have looked at emergency powers to ensure that accountability around an order that government might not want to publish for one reason or another — that they would have to do that.

M. Lee: Was there any consideration of including the rationale for the orders or regulations in the report as the Ombudsperson has recommended?

Hon. D. Eby: It’s important to note that it’s been the practice of our government that ministerial orders under the EPA already include recitals, and these recitals set out the context and rationale for making the order. This bill in front of the House and the EPA both also contain legal tests that have to be met before orders or regulations can be made, and they also include critical elements of the rationale for making the orders.

An example is…. The central rationale for making a regulation under section 10.1 is to prevent, respond to or alleviate the effects of an emergency or disaster and that the benefit of making the regulation is proportionate to the benefit of the continued application of the enactment as it is before the making of the regulation.

Now, why wouldn’t government set out the legal tests, explain how the regulation meets the legal tests for making these regulations? It’s important to note that when we prepare these, government acts on legal advice to ensure that the orders that are made are authorized by statute, and certainly it’s been the position of government, although there’s a notable concern around that stated by the Ombudsperson, that public consideration of whether or not executive actions are authorized by law falls within the jurisdiction of the courts in the context of judicial review.

It’s important to note, of course, that members of this House have the ability to ask questions of government with respect to these orders and regulations during question period as another mechanism of accountability.

So there is a desire not to waive, obviously, the privilege over legal advice but also to provide that vital context that the Ombudsperson has expressed an interest in seeing, which we provide through the recitals in these orders and have now amplified through the legal tests in the bill in front of the House here today.

[5:05 p.m.]

A. Olsen: I want to thank the minister for moving this amendment and for the discussions that we’ve had. It is important that this Legislature be aware, and this is certainly a move that we support in this added reporting to ensure the accountability and transparency of the orders being made.

HÍSW̱ḴE. Thank you.

The Chair: Okay. The amendment has been duly moved.

Hon. D. Eby: I move the amendment as in the possession of the Clerk introducing section 3.1 to part 2.

Amendment approved.

Section 3.1 approved.

On section 4.

M. Lee: In looking at this provision, sub 4(3), could I ask what is the expectation around when it is stated that regulations would be made restricting the protection provided under 4(1) or imposing conditions on the protection? What would those conditions be, and what would those restrictions be?

Hon. D. Eby: In existing Ministerial Orders M094, M120 and M183, there are already restrictions on the protection from civil liability or conditions on the protection. And those restrictions or conditions relate to: you’ve got to follow the emergency orders or you have to follow the public health orders or guidance of health authorities or other regulatory bodies in order to benefit from the protection. If you are not following those orders or guidelines, then you will not benefit from the protection.

It’s certainly our belief that these existing limits on the protection from civil liability are very likely to be the only potential restrictions. However, there may be situations in the future where we want to provide a protection from civil liability, but there is some additional restriction we want to put on that, some other hurdle that the person should have to cross before being able to benefit from the protection.

It’s difficult to speculate, but it is, I think, instructive to look at the orders that have been passed in terms of the existing conditions or the existing restrictions on the ability to benefit from this protection as, kind of, indicative of government’s intentions here.

[5:10 p.m.]

M. Lee: I note that under section 18 of the EPA, the Emergency Program Act, there is an exemption from civil liability. One of the main thresholds in those provisions is that the person who is protected from liability is someone who is acting in good faith. When I look at the language around section 4 in this bill, I don’t see the same good-faith test. Why is that the case?

Hon. D. Eby: The good-faith test is one that is contained in the act. It is a test that is not quite as certain for, say, an operator of a daycare. It may not provide them with the level of certainty that they and/or their insurer need in order to sign off on their operations in a state of pandemic.

We wanted to be really clear about what steps — again, this example — the daycare needs to follow in order to benefit from the provision. They’ve got to follow the public health orders. They’ve got to follow the guidelines. They have to follow the requirements of various regulatory bodies. That avoids them having to grapple with whether or not their decision to operate was made in good faith. We want them to operate. We want them to provide child care for kids in the province.

The reason I chose the child care operator is because…. That was one of the sectors where we heard from them that they were unable to provide services because they were concerned about liability related to potential COVID exposure in the earlier stages of the pandemic in British Columbia. Their insurers were telling them they wouldn’t cover them if they did open because of concerns about liability related to COVID exposure. We needed to be certain enough for them to be able to govern themselves accordingly.

The good-faith test, although it’s there in terms of protections for the minister or other officials or first responders, is not as useful to a business operator who is being asked to operate during a pandemic and needs to know, as certainly as possible, what their exposure and risk are, in terms of civil liability, if they do operate an essential service during a pandemic.

Sections 4 to 6 inclusive approved.

On section 7.

[5:15 p.m.]

M. Lee: Thank you, Mr. Chair, for navigating us through the voting procedures here, through the various sections of this bill.

I would like to ask the Attorney General, in terms of the broadening of the language in the lead-in to section 10 of the Emergency Program Act…. Through the course of this COVID pandemic, what has been the interpretation of the government in terms of how broadly section 10 of the Emergency Program Act could be utilized?

Hon. D. Eby: The words “without limitation” are proposed to be added to section 10 to provide some certainty. There was a concern, coming out of the public service, that this section wasn’t sufficiently clear whether the list of items that followed was a complete list of all of the powers of the minister under section 10 or whether, instead, it was a list of examples of the ability of the minister to “do all acts and implement all procedures.”

Certainly, from the government perspective, there was no concern, which we had, that this was a closed list of powers. Instead, it was a list of examples of what is stated in subsection (1) of “do all acts and implement all procedures.”

The adding of the words “without limitation” does not mean that there are no limitations on the minister’s ability to issue orders. Section 10 does limit the power of the minister — to the member’s question — specifically to doing acts and implementing procedures “that the minister considers necessary to prevent, respond to or alleviate the effects of an emergency or a disaster.”

Unless it’s “necessary to prevent, respond to or alleviate the effects of an emergency or a disaster,” the minister can’t do it. That is a requirement of the minister exercising the power. It’s a very significant limit on the kinds of orders. The words “without limitation” were meant to make it clear that what follows is a list of examples, rather than a closed list of authorities.

M. Lee: Those who have had the opportunity to study law and go to law school — like the Attorney General and myself and the Leader of the Official Opposition and the member for Abbotsford West, to name a few — can certainly understand the importance of statutory interpretation and the words “without limitation.” So I appreciate the response from the Attorney General.

[5:20 p.m.]

In reviewing this provision and the way that both the Attorney General and the Minister for Public Safety referred to it in their comments on second reading, they gave great importance to the addition of the words “without limitation.”

What we are left with, with this proposed amendment to section 10.1…. I’m trying to get the Attorney General to clarify. With this amendment in place, in the government’s view, is there any other limitation to the use of this provision other than the consideration by the minister that it is necessary “to prevent, respond to or alleviate the effects of an emergency or a disaster,” as the Attorney General just cited — the other lead-in language to this provision?

Is there any other limitation on the power, the extraordinary power, of the minister in an emergency situation to utilize that power under this provision, section 10.1?

Hon. D. Eby: I mean, in the big picture, the constitution and the Charter are limits. But the real limit, in terms of function, is right there in subsection 10.1(1), which is that the measure has to be necessary “to prevent, respond to or alleviate the effects of an emergency or a disaster.” That was the original wording — all acts and all procedures necessary to prevent, respond to or alleviate the effects of an emergency or a disaster.

That is a significant power but also a significant limit. The minister would be expected to, and government would be expected to, account to a court if the measure was not apparently necessary to prevent, respond to or alleviate the effects of an emergency or disaster, and the order could be declared outside the authority of the minister, because that is a significant restriction.

However, it is a significant power. When this act was passed, it was a recognition of this place that when you’re in an emergency, you want government to be able to act quickly to prevent, respond to or alleviate the emergency. It is a balance between the need for expedited process, quick response during an emergency and accountability. There is a tie — and a strong tie, that it’s necessary — between the action by government and the disaster or the emergency itself.

M. Lee: I wanted to come back to a comment that the Attorney General made earlier on a section. Certainly, we all understand the grave nature of a state of emergency for our province and what we’re facing — what we have been facing, what we are currently facing and what we’re still facing in the future — and the necessity to quickly act.

Now, is it the understanding of the government that where the minister would utilize these emergency orders, it would be done in situations where this Legislative Assembly is not able to consider legislative changes?

[5:25 p.m.]

Earlier the Attorney General, in referring to the orders that are continuing under the schedules to this act, talked about — I think it’s Bill 22 — the Wills, Estates and Succession Amendment Act. That is certainly an example of legislative change, where this House is able to deal with that. There are many other aspects, as the Attorney General indicated, that take time in order to do that, but when does this Legislative Assembly act in emergency situations versus when the minister must act?

Is this Legislative Assembly not fully equipped to ensure that when we talk about government action that this chamber ought to be reviewing and debating that? So to get an understanding…. When the assembly is in session, when would this emergency power be utilized?

Hon. D. Eby: The member asked when would these powers be exercised. Obviously, but importantly to note, they would only be exercised in a declared state of emergency. So there are two hurdles here. The minister first has to justify that there is actually a state of emergency. That decision can be reviewed. The second hurdle is that the act itself, taken by the minister, needs to be necessary to prevent, respond to or alleviate the effects of that specific emergency or disaster.

The member cites the electronic wills bill that is in front of the House right now as an example of how the Legislature could respond quickly. I think it’s really important to note that that work started in 2017, that there was much work done on it since 2017 to bring it forward to the House, and that it was accelerated to bring it because of the relevance of the pandemic.

That wasn’t a bill that was prepared, you know, during COVID in order to remove the need for one of the emergency orders. It was a happy coincidence that the bill was close enough to be ready that we were able to accelerate it and provide a better response than just an emergency order for that particular issue.

This type of provision is common to emergency acts in modern democracies across the world. The reason for that, with the safeguards that I’ve talked about, is that people understand that in an emergency, government needs to act quickly. The emergency may prevent the Legislature from meeting. If it was a significant earthquake, the Legislature might not be available to us as a physical building.

[5:30 p.m.]

In this particular pandemic, our need to coordinate and our need to see members on TV, here in the chamber…. The safeguards that have had to be put in place so that we can meet and debate took time to establish, and we could not have waited without taking considerable risk in increasing exposure or mitigating the ability of some members to appear, which we did do for an urgent piece of legislation. So there is a widespread recognition of the need for compromise in order to ensure quick response during an emergency. However, there is also wide recognition for the need of safeguards, which I have set out, that exist in the act and in the bill.

[R. Chouhan in the chair.]

M. Lee: It’s that exact balance that the Attorney General is speaking to that we all want to ensure is the case with the amendments brought forward by this government in this bill and the safeguards. That is where the decision-making about this bill comes about and how we consider when those emergency powers would be exercised by the minister responsible.

As we look at this particular section, is there any instance where, on the current orders that have been passed by the minister, the orders have been beyond the scope of this provision? That is certainly something that the Ombudsperson has spoken to. Has the government done a full review of its orders and ensured that it complies with the safeguards set out in this provision?

Hon. D. Eby: All the orders that were made pursuant to the EPA were within the powers that are set out under subsection 10(1).

Section 7 approved.

On section 8.

M. Lee: We talked about section 8 earlier, and in response to questions on section 7 of this bill just now, the Attorney General drew some helpful distinctions there. So in reviewing subsection 10(1) of the Emergency Program Act, as the Attorney General just cited twice, it does contain the test that the minister must consider necessary to prevent, respond to or alleviate the effects of an emergency or a disaster, that that term, that threshold….

[5:35 p.m.]

It isn’t a term of art, as the Attorney General wondered earlier. It is something that I just refer to, so there’s nothing of any particular legal import there, so far as I know. But just for the sake of discussion purposes, this necessity test isn’t present in sub 10.1(1). Again, why is that the case?

Hon. D. Eby: The reason for section 10.1 being different is that it has, built into it in subsection (3), a proportionality test. The logical tie between, first of all, sub 10.1(1) requiring that the order needs to be made for the purpose of alleviating or responding to or…. Pardon me, it’s sub (1) and sub (2): “to prevent, respond to or alleviate the effects of an emergency or a disaster.”

The logical tie between that requirement and that cabinet may only make a regulation if it’s satisfied that the benefit of making the regulation is proportionate to the existing benefit of the continued application of the enactment as it is before the regulation modifies it…. Those two pieces tied together create the same effect, or it obviates the need for the additional test. It has to be done for this reason, and it has to be proportionate.

M. Lee: I am concerned that this is a significant departure from the threshold of necessary under the existing act of sub 10(1) of the Emergency Program Act. As the Attorney General indicated, this is a formulation that’s in place in other jurisdictions in this country and in other parts of our world. That’s an important element. I haven’t done the full survey, but I certainly have looked at other Canadian jurisdictions.

[5:40 p.m.]

The proportionality test in subsection 10.1(3) — if he could explain what this test is meant to accomplish when it says “…the benefit of making the regulation is proportionate to the benefit of the continued application of the enactment.”

When we say proportionate, what does that mean? Does it mean that…? It doesn’t have the word “impact,” as the Ontario legislation has. There’s no consideration of that or any consideration that…. When we say proportionate, does that mean it’s greater than — i.e., the benefit of making the regulation is greater than and proportionate to the benefit of the continued application of the enactment? Is that what it means?

To the Attorney General, what exactly does this provision mean when it says proportionate?

Hon. D. Eby: With respect to proportionality, the test takes as a baseline that there’s a benefit to the continued operation of the enactment as it exists in the law. Otherwise it would have been enacted differently or amended previously. It assumes as a baseline that there is a benefit. Since this is an extraordinary power to modify it, that power to modify has to be balanced with the normal way that laws are enacted and modified.

The test requires that the LGIC needs to be satisfied that there is a benefit for the purpose of…. Remember, it has to be tied to that purpose of preventing, responding to or alleviating the effects of an emergency or a disaster. It can’t just be anything; it has to be tied to that. But that there’s a benefit to achieving that goal to making the regulation, and that the benefit has to be proportionate to the established benefit of continuing the operation of the enactment as it exists.

The test requires that the LGIC needs to be satisfied that there is a benefit — remember, it has to be tied to that purpose of preventing, responding to or alleviating the effects of an emergency or a disaster, it can’t just be anything; it has to be tied to that — for the purpose of achieving that goal to making the regulation. The benefit has to be proportionate to the established benefit of continuing the operation of the enactment as it exists.

Proportionality is in fact a key concept used in other jurisdictions and by those who study extraordinary or emergency powers. Now, in this context, “proportionate to” doesn’t mean “equivalent.” It means a balancing test of the risks and benefits on each side of the equation. It means that if making the regulation to change the enactment has a very small benefit compared to the benefit of leaving the enactment as it is, then the regulation cannot and should not be made.

The word “benefit” in this context also implies a consideration of the harms as well. For example, the harm of an enactment continuing as is could include that it puts a legal obligation on someone that they cannot meet — for instance, a legal requirement to meet in person when there’s a public health order against doing that. The conditions on the use of the regulation-making power reinforce the purpose and scope of the regulation-making power and act as a legal check on that power.

I hope that that provides some insight into what is intended by this proportionality test. It takes as a baseline that the existing law, operating as it is, has a benefit, and then that government must evaluate the benefit of the proposed emergency order. It has to be tied to the emergency or disaster, and then the benefit of that particular order has to be proportionate to allowing the law to continue as it is.

M. Lee: We certainly could pursue that, and maybe we’ll have the opportunity to talk further about sub 10.1(3).

[5:45 p.m.]

I think it does underline the earlier point I was trying to make, relating to the report to the Legislative Assembly that for any reason, if there are regulations being made under this provision, sub 10.1(1), as currently proposed, the Legislative Assembly needs to understand how this government is weighing the benefits and the harms. Clearly, that test is not fully expressed in one word in sub (3).

I need to go back to the broader question about sub 10.1(1). Why does this government need this very expansive power that effectively, in a declaration of a state of emergency, enables the Lieutenant-Governor-in-Council to make an exception to any enactment, to establish “powers, duties, functions or obligations that apply in place of or in addition to an enactment”? The rule of law and the responsibility lie with this Legislative Assembly. For the Lieutenant-Governor-in-Council to assume this extraordinary power by virtue of this section is an overreach by this government.

To the Attorney General: could he please explain the basis for this government’s overreach through this provision?

Hon. D. Eby: I guess I’m surprised by the member’s allegation that this is an overreach. This is a clarification of existing powers under the act and in fact imposes a new limitation of proportionality that wasn’t there before.

The member could rightly ask why there wasn’t a proportionality test in the original emergency act as it was passed that said that you could only pass a regulation if you were satisfied that the benefit of making regulations was proportionate to the benefit of the continued application of the existing law. That would have been a good thing to include, but it wasn’t there. It is in this section now. There is a new limitation on those powers.

I guess what would be helpful for me is to understand where the member understands the overreach or the additional authority to be here, because I do understand the section to be placing additional obligations on government, and new legal tests, before passing an order.

M. Lee: Well, I can respond to the Attorney General’s question of me in response to my question of him. I also wish to table an amendment, but let me just respond by saying this.

Under section 10.1, there is an existing power for emergency orders. That’s it. We just passed a section in this bill to effectively clarify, extend and expand — to ensure that that power is broader. We went through that. This section, section 8, sub 10.1(1), gives the Lieutenant-Governor in Council further powers that are not provided for under subsection 10(1) of the Emergency Program Act.

I fail to see the reason for this government using this as an opportunity…. They talk about modernizing the Emergency Program Act as something that has been ongoing since October 2019. We should be dealing with the specific measures needed to deal with this COVID-19 pandemic. We all agree about that. But this is an overreach.

This government is attempting to attract and acquire additional powers, powers that it does not currently have under the Emergency Program Act. So on that basis, I wish to submit this amendment to strike section 10.1(1).

The Chair: The House will be in recess for five minutes.

The committee recessed from 5:50 p.m. to 6:05 p.m.

[R. Chouhan in the chair.]

Hon. D. Eby: Thank you to the member for the text of the amendment and for raising the concerns that he is. I do feel an obligation to advise the House that the stated intent of the amendment is not what is achieved by the text of the amendment.

The Chair: Attorney General, I don’t think that the member has moved the amendment yet. He just circulated it.

Hon. D. Eby: Oh, I thought he stood up and moved it.

Pardon me, Mr. Chair. I’ll wait until he moves it before I explain why I don’t like it.

M. Lee: I wish to move an amendment to section 8 of Bill 19, as I have circulated to the Clerk here. The amendment strikes subsection 10.1(1) of that particular section 8.

[SECTION 8 by deleting the text shown as struck out and adding the underlined text as shown:

Powers of Lieutenant Governor in Council in declared state of emergency

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:

(a) making an exception to an enactment;

(b) establishing limits on the application of an enactment;

(c) establishing powers, duties, functions or obligations that apply in place of or in addition to an enactment;

(d) establishing conditions in relation to anything done or established under paragraphs (a) to (c).

(12) Without limiting subsection (1) and subjectSubject 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:

(a) 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;

(b) setting out a replacement limitation period or period of time for one suspended under paragraph (a) of this subsection;

(c) 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;

(d) 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.

(23) The Lieutenant Governor in Council may make a regulation under subsection (1) or (2) only if satisfied that the benefit of making the regulation is proportionate to the benefit of the continued application of the enactment as it is before the making of the regulation.

(34) A limitation period or period of time established under subsection (12) (b) or extended by authorization under subsection (12) (d) may extend beyond the date when the relevant declaration of a state of emergency expires or is cancelled.

(45) If a provision establishing 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 is temporarily suspended by regulation under subsection (12) (a) and the regulation does not provide for a replacement limitation period or period of time, the limitation period or period of time resumes running on the date on which the relevant declaration of a state of emergency expires or is cancelled, and the temporary suspension period is not to be counted.

(56) If a provision requiring the payment of a fee is temporarily suspended by a regulation under subsection (1) or (2) and the regulation does not provide for a replacement fee, no fee is payable at any time with respect to things done during the temporary suspension period.

(67) This section does not authorize regulations

(a) shortening 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, or

(b) increasing the amount of a fee.

(78) A regulation under subsection (1) or (2) may be made retroactive to a specified date that is not earlier than the date of the relevant declaration of a state of emergency and, if made retroactive, is deemed to have come into force on the specified date.

Enforcement

10.2  The Lieutenant Governor in Council may, by regulation, specify that a failure to comply with a provision of a regulation made under section 10.1 (1) or (2) is to be treated as though it were a failure to comply with the Act to which that provision relates.]

The Chair: Attorney General, now you can speak on it.

On the amendment.

Hon. D. Eby: Mr. Chair, I put the cart in front of the horse. Okay.

The intent of the amendment, as I understand it, is to prevent what the member describes as an overreach by government. It does it by striking out subsection 10.1(1), which gives cabinet, LGIC, the Lieutenant-Governor-in-Council, the ability to make an exception to an enactment; establish limits on the application of an enactment; establish powers, duties, functions or obligations that apply in place of or in addition to an enactment; and establish conditions in relation to anything done or established under paragraphs (a) to (c).

Now, it is absolutely government’s position that all of these powers are encapsulated under the existing section 10 of the act and that the powers reside with, under the existing act, the Minister of Public Safety, the Solicitor General.

The effect of this, and the intention of this, is to pull that power away from the Solicitor General alone and to give it to cabinet instead, recognizing that if you’re going to make an exception to a law or establish limits on an existing law or establish new powers or duties in relation to a law or put conditions on anything like that, the Solicitor General might not be the best placed to do that. It would be more appropriate for cabinet and the minister so that the minister responsible for that particular law could provide details about why it is or isn’t a good idea.

It’s pulled away from one person and given to cabinet. And then a proportionality test is put in place later on in the section that recognizes the law as it exists has a benefit to it and that if you’re going to modify it, the benefit has to be proportionate to that. In other words, there has to be some benefit experienced in terms of responding to the emergency.

What the member’s amendment does is it gives that power back to the Solicitor General and removes the effect of the proportionality test for these important powers, which are making an exception to an enactment, establishing limits on the application of an enactment and establishing powers, duties and functions that apply in place of those enactments which are laws.

I do understand the member’s concern that there be oversight and transparency and all these things. The challenge is that the amendment maintains the status quo — that the powers reside within the Solicitor General and that there’s no proportionality test. The amendment proposes to move it from the Solicitor General to cabinet — to a group of people away from an individual — and to put the safeguard of the proportionality test in place.

I can’t reconcile the text of the amendment with why the member said that he introduced the amendment. I think the member should articulate the connection between the two. You know, it’s not an immediately intuitive section. Perhaps with the explanation, the member now has that background that, in fact, this is a reduction of authority in a single member and an implementation of a new proportionality test on that power and will withdraw his amendment.

[6:10 p.m.]

M. Lee: I appreciate the response from the Attorney General. I think it speaks to the level of breadth of the current provision under subsection 10(1) of the Emergency Program Act.

We were having the discussion earlier, and I mentioned the principles of statutory interpretation. While it’s not an exhaustive list, what’s listed in subsection 10(1) of the existing Emergency Program Act is certainly….

When we talk about the types of emergency orders that the minister can do, it includes, of course, implementing a provincial emergency plan, authorizing local authorities to implement a local emergency plan, controlling or prohibiting travel to or from an area of British Columbia, causing the evacuation of persons or removal of livestock, constructing works considered by the minister necessary or appropriate to prevent or respond to or alleviate the effects of an emergency or disaster. That is actually the repeat of the specific requirements in the lead-in language to sub 10(1).

I mention a few of the items of the enumerated powers under subsection 10(1) of the act only to indicate that these are the examples of the powers of the minister. So you would still expect that for this Legislative Assembly to understand…. Perhaps this is part of, of course, the modernization of the act.

The modernization of the act — and this is what we are hampered with — hasn’t been completed yet. Nor are we actually debating a full review and amendment to the Emergency Program Act. Yet this government is proposing amendments to that act beyond dealing with the validity and the extension of the timing of those 30-plus emergency orders and dealing with the necessary orderly transition of those orders as we, hopefully, come to a point where the pandemic gets behind us, at least in this province.

So I do not accept the Attorney General’s response that subsection 10.1(1) is embedded in the existing powers of sub 10(1). It may be, the way this bill has been drafted, that it might be the intention of the government, but it is not clear. This looks, on its face, to be an expansion of those powers and giving those powers to the Lieutenant-Governor-in-Council without the Lieutenant-Governor-in-Council having to meet a necessary test, which the minister must meet under subsection 10(1) of the Emergency Program Act.

In response, of course, we’ve heard from the Attorney General about the new provision, subsection 10.1(3), the so-called proportionality test, which we’ve had a brief exchange on and there will be more discussion of once we get through this amendment.

I certainly cannot stand here in this chamber comfortable with the government’s response that sub 10.1(1) is not an expansion of the powers of this government. That is the reason why I have tabled this amendment to strike that provision. I will acknowledge that we are dealing with this legislation on a special basis and that we do not have the full review of the Emergency Program Act.

If we did, I believe members of this House would want to consider adding limitations to the exercise of emergency powers under this act. For example, in Ontario, there’s a reasonableness test, where the Lieutenant-Governor-in-Council must have formed the opinion that this particular regulation, in this case, vis-à-vis all the alternatives, is a reasonable alternative.

[6:15 p.m.]

It must be done in a way that is less intrusive. It must be done in a way that is specific to particular parts of the province, if applicable, and it should be limited by time.

I am citing a few of the principle limitations or criteria that are in place in the Ontario legislation that are not in place in the British Columbia legislation. These are examples of the kinds of limitations and constraints, the checks and balances, that ought to apply. In the absence of those checks and balances, I cannot support this bill, in this formulation, with subsection 10.1(1) in it, despite the best efforts of this government to table a last-minute amendment to deal with reporting to this House, which has no teeth to it, as I spoke to earlier. We get the report. It’s not going to change anything.

Regulations made under this power, under sub 10.1(1), will continue for up to a year from the passage of this bill, regardless of what that report says, regardless of whether the government is able to demonstrate that it has met the proportionality test under sub 10.1(3), as the Attorney General attempted to explain that test.

With that, I would urge members of this House to vote in favour of this amendment.

A. Olsen: Prior to the amendment being drafted, I had a question that I was going to ask. Now I’ll ask it in the context of this amendment. It was raised by the member who moved the amendment with respect to the timing. This was a question that we originally had, and I think that it might provide some insight here.

There is a process underway to amend the EPA. One of the questions that we had was the decision that government made to make a permanent change to an act through an act that is going to, at some point, in a year, be gone.

I’m just wondering. Why couldn’t these sections 10.1 and 10.2, from the government’s position, wait until the EPA as a whole is updated? What we’re doing is, essentially, creating permanent powers in the midst of a state of emergency through a piece of legislation that is a stop-gap measure to respond to the current situation that we’re facing.

Hon. D. Eby: I just want to clarify. This is on the opposition amendment. Certainly, I can absolutely answer the member’s question in terms of the legislation itself. I’m not sure whether the most appropriate time is to do it during debate on the amendment or after the amendment vote.

The Chair: I think it will be appropriate to do it after.

Members, you heard the motion. It’s a proposed amendment to Bill 19, COVID-19 Related Measures Act, proposed by the member for Vancouver-Langara.

Division has been called. Members, according to the sectional order passed on June 22 of this year, this division vote will be deferred to tomorrow evening.

[6:20 p.m.]

Hon. D. Eby: Just quickly for the member, the section is not intended to add any new powers but is rather intended to remove powers from the Solicitor General, give them to cabinet and to impose a new proportionality test. That is the reason why these amendments are being pursued in terms of amending the act — so that those safeguards are in place on a go-forward basis in advance of the modernization.

With that, I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 6:21 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Tabling Documents

Hon. M. Farnworth: On behalf of the Minister of Indigenous Relations and Reconciliation, I’m honoured to present the first annual report under the Declaration on the Rights of Indigenous Peoples Act. The report was filed with the Office of the Clerk on Tuesday, June 30, and I am pleased to table it here in the Legislature today for my colleague, the Minister of Indigenous Relations and Reconciliation.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.

The House adjourned at 6:23 p.m.