Les Leyne: NDP responds with petulance to charge that it had overreached

Ho hum, another extension this week of the state-of-emergency declaration to give politicians more powers to cope with the pandemic.

Or to be inflammatory about it: Another two-week unilateral curb on some of the legal constraints that protect citizens against the abuse of power.

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There have only been a few murmurs of objection to how some due process regarding transparency and accountability has been bypassed during the emergency. The urgency is obvious and the cause is clear.

(That’s what governments always say when they declare emergencies.)

But the seventh two-week extension of the emergency this week was different from the others.

It came as ombudsperson Jay Chalke issued a warning about how the emergency orders — 30 of them so far — are being devised. He said at least two are contrary to law, meaning they’re out of bounds no matter how big an emergency it is.

That partly prompted a bill this week that adjusts the authorizations to reflect his concerns. The backstory suggests the report did not go over well. Public Safety Minister Mike Farnworth wrote Chalke a curt, snippy letter saying it’s the ombudsperson who is out of bounds, not the government.

And even though it was Chalke who prompted the parts of the bill to rectify the overreaching, Farnworth disinvited him from commenting on the fix before it was introduced.

Not that he had to bother. He’d already won the argument.

Farnworth’s June 12 letter is buried in an appendix to Chalke’s report and it’s a model of imperious condescension.

Farnworth said he and Attorney General David Eby were of the view that Chalke didn’t have the authority to do his report.

“Please be advised 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.”

Nonetheless, he said the government had already decided to clarify the authority for the ministerial orders before Chalke urged them to do so.

In a particularly passive-aggressive passage, he said the fact they’re doing what Chalke said they should do doesn’t mean they agree with him.

“The consistency between the action we are already taking on some matters and your recent recommendations should not be construed as acceptance of or agreement with all of your recommendations.”

This “nyah-nyah” attitude has the same feel as Eby’s fight last year with another independent watchdog, the representative for children and youth.

She asked to see some data while compiling a report. He refused and told her she had no right to ask. She went to court, where the government fought her at every step, and had her obvious right to ask abundantly confirmed. Eby gave up and blamed the whole thing on a “disconnect” between the two offices.

He’d be better off concentrating on getting the court system back to full operation rather that taking part in arguments with watchdogs.

Chalke singled out two emergency orders. One suspended limitation periods in court proceedings and across government, allowing various deadlines to be waived or extended.

It sounds helpful to most citizens, but it could also work against others — reconsidering someone’s eligibility for disability assistance, for example.

Chalke said the government didn’t have the authority to do that, and even if it did, the order goes too far in its coverage.

The other, which was written and rewritten over the spring, rewrote basic laws for local governments about open meetings, public hearings and the time periods for consideration of bylaws. It generally allowed a major move across B.C. to electronic meetings. Some adjustments were made recently to modify the new rules.

Chalke’s report said the orders were issued contrary to law and can’t be justified by good faith or that they’re in everyone’s best interests.

Even if they’re used benevolently, the exercise of unauthorized order-making powers “undermines the rule of law.”

The fix for his concerns arrived in the legislature this week, the COVID-19 Related Measures Act. Eby’s introduction concentrated on other aspects, bypassed the issues raised and didn’t mention the ombudsperson.

The emergency extensions will likely run for a year or more. As Chalke noted: “A health emergency does not suspend the fundamental principle that every exercise of public authority … must find its source in law.”


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