B.C. public safety minister made unlawful orders during pandemic, ombudsperson report says

An investigation by B.C.'s ombudsperson has found that two orders made by B.C.'s Minister of Public Safety and Solicitor General Mike Farnworth during the COVID-19 pandemic were not authorized by law. 

Farnworth made one order that waived time limits related to any civil or family lawsuits and other instances involving deadlines including tribunals.

Another allowed local government meetings to be held without the public or local reporters in attendance and gave municipalities the power to adopt bylaws more quickly than usual.

"In a provincial emergency the solicitor general has additional extraordinary powers," Ombudsperson Jay Chalke said in a written statement. 

"The issue we investigated is whether those extra powers include the ability for the minister to suspend or temporarily amend B.C. statutes and we concluded the minister does not have that authority, even in an emergency."

Farnworth said his government took "swift action" to support British Columbians and stop the spread of COVID-19.

"We took a balanced approach — never implementing a strict lockdown or heavy-handed enforcement," he said. "We collaborated with the opposition parties, including them in major decisions and providing briefings."

Though Chalke said he understands the importance of speed when responding to an emergency like the pandemic, they must also be legal. 

"While the intent and even the content of these orders may be worthy, that is not enough. Every exercise of public authority in a democratic system must find its source in law," Chalke said

The Emergency Program Act gave the government the power to address pandemic-specific issues, including municipal government meetings and the court system, Farnworth said. 

Chalke said Farnworth did not have the legal authority to make the orders under the Emergency Program Act (EPA) and  they were repealed last week after he shared his investigation with the province.

"The COVID-19 Related Measures Act, introduced on Monday in the Legislative Assembly by my colleague the attorney general, addresses the key issues raised in the ombudsperson's report," Farnworth said.

Attorney General David Eby said in a written statement the Act also contains two amendments to the EPA to clarify the power of the minister.

"Under the modifications, cabinet will now make these changes, not the minister alone. This modification has the added benefit of responding to the concerns of the ombudsperson that the EPA be more specific about these important statutory powers in a state of emergency."

Meetings held without public oversight

Though many municipalities already streamed council meetings online, and some worked quickly to do so during the pandemic, the northern B.C. community of Vanderhoof's district council chose to hold their meetings without the ability for the public or local reporters to participate. 

Mayor Gerry Thiessen said the decision was largely because ministerial orders allowed them to hold meetings without the public in attendance. 

Thiessen said they didn't have the technology to stream meetings online, but did continue to put their agendas online.

"We worked very diligently to satisfy how we could have good governance and how we could have good communication," he said.

Thiessen said his council has been following the province's direction as new requirements have been released. They are now looking into providing audio from meetings for anyone unable to attend.