COVID-19 and the rule of law, part 1

Earlier this year, BC ombudsperson Jay Chalke and his office found that two orders the BC government made in response to the pandemic were unlawful.  In this episode, Jay explains the role of the ombudsperson in upholding the rule of law, how it helps people who have a concern with a government body, and why the public should care about how laws are made, enacted and implemented, even during a state of emergency.

To read the ombudsperson's investigative report and to find out more, visit the BC Ombudsperson's website.

Transcript

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Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode six, COVID 19 and the Rule of Law Part 1. This podcast is brought to you by the Law Society of BC. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host.          

Jon Festinger

I'm your host Jon Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee. I'm also a lawyer and I teach at UBC's Allard School of Law and the Thompson Rivers University Faculty of Law. I am pleased to welcome our guest, Jay Chalke, Ombudsperson for British Columbia. Prior to being appointed Ombudsperson by the Legislature of BC, Jay was the Public Guardian and Trustee for BC and later assistant deputy minister responsible for the Justice Services Branch of the Ministry of Attorney General. As Ombudsperson, Jay and his team listen to inquiries and complaints from the public about government programs and services and then work to find solutions. The Ombudsperson also conducts impartial and independent investigations. One of Jay's investigations this year, and his office's obviously, was to examine ministerial orders made in response to our current pandemic. His investigation considered where the balance lies between ministerial powers and legislation before finding that two of the two ministerial orders made were not authorized by law. Welcome Jay and thank you for joining us.

Jay Chalke

Pleasure to be here.

Jon Festinger

Jay, can you give our listeners a little bit of background about what you do and what your office does?

Jay Chalke

Sure, the ombudsperson's been a fixture in British Columbia for over 40 years since the Ombudsman Act came into force in 1979 but your listeners should know that there are actually ombudsman roles in countries around the world and there have been roles like this globally for many decades. So we're certainly not new kids on the block in terms of being a free and impartial office that responds to complaints about public, from the public about the government. So we call ourselves BC's independent voice for fairness. We're here to make sure that people are being treated fairly in their interactions with British Columbia's provincial and local governments and related public sector entities, and that makes, that means that we're investigating to make sure that public administration, which is made up of all the rules and policies and procedures are reasonable and just and they're being followed the way they should be. And when they're not, it's our job to make them right. So just a few years after we came into being, we actually found ourselves in the Supreme Court of Canada against the British Columbia government who were seeking to prevent one of our investigations and the Supreme Court gave a ringing endorsement of our role saying that because of the unique characteristics of an ombuds, we, and I'm quoting the Court to say, they say that we can bring the lamp of scrutiny to otherwise dark places even over the resistance of those who draw the blinds. 

Jon Festinger

So that said, what kind of investigations do you engage in? 

Jay Chalke

So we can investigate complaints about a thousand or more public sector organizations, ministries of government, school districts, colleges and universities, Crown corporations, health authorities, provincial agency boards and commissions, local governments and professional regulators including the Law Society. So some investigations might take a day, others can take a year or more. We have significant statutory powers to obtain records and other information. We can, if necessary, subpoena people and examine them under oath. We do get these complaints every day and really what we're doing is we're trying to determine whether it's what's called a matter of administration, that's what in the Ombuds Act. We're determining whether maladministration has occurred and the Ombudsperson Act sets out the kinds of governmental maladministration that we're looking to determine whether it's occurred, things like undue delay, arbitrary or oppressive decision making, inadequate reasons, unfair procedure, a mistake, irrelevancy, and or whether government's acting contrary to law. 

Jon Festinger

So practically, as a British Columbian, what does that mean to me and how or where is the average British Columbian of what we, how we could use the Ombudsperson's office?

Jay Chalke

So about seven to eight thousand people every year turn to us for help and in terms of what a sample week might look like, there could be newcomers to Canada who are trying to obtain a driver's license, it could be prison inmates who are in segregation in a manner they don’t think was fair. It could be youth in care, income assistance recipients who need a crisis grant for groceries, people living with physical or mental disabilities who've been denied benefits and they don’t know how they're gonna get through the day. So there's lots of people who really need government but they're, we're here for everybody. So there could be homeowners in conflict over development plans, students who are trying to get fair access to an education program, so anything that is someone coming into contact with government and needing something from government, that's, if they're not treated fairly we're here for them.

Jon Festinger

So when you look at that sort of very wide range and you've articulated principles of fairness that obviously intersect with the rule of law, but how do you see your office in fact upholding the rule of law for British Columbia and within the democratic society of Canada?

Jay Chalke

So just before we get to the rule of law question, one thing that's really important for people listening to understand is we're not a court, I don’t determine people's legal rights; we use the tool of the Ombudsperson Act, the gathering of information through an investigation to determine whether somebody's been treated fairly and then at the end of that investigation, we propose rather than impose a solution if they've been treated unfairly. And so we propose settlements, we make recommendations about how maladministration can be remedied. And some people may think that's kind of powerless, you're not like a court, you can't order somebody to do something, but that's not at all our experience. 

So the former Ombudsman of British Columbia Steve Owen once said, and this is really something I think in our world we all live by, Steve said the inability to force change may be the central strength of the office. It requires that its recommendations be based on a thorough investigation of all facts, scrupulous consideration of all perspectives and vigorous analysis of all issues. This application of reason produces results that are more powerful than could be achieved through coercion. A coercive process may produce reluctant change in a particular instance but it creates a loser who will be unlikely to embrace change in the future. By contrast, change that results from a reasoning process changes our way of thinking and the result endures to future users. So I, you know that for us is very much how we think of our ability to persuade so there's value whether we find unfairness or not. There's value obviously when we find unfairness and we propose a solution but also when we conduct a thorough investigation and find that government has acted fairly. The public can be confident that an independent, neutral investigator has to determine that they were treated fairly and our institutions are functioning properly.  

Jon Festinger

You know that leads to the obvious question; does government listen to you?

Jay Chalke

So our government does listen to us the vast, vast majority of time. We have a I think a great track record both at the stage where our investigators, on a preliminary basis, they approach government and say this is where we're at in terms of our investigation, here's what we would like you to do and we resolve a great many cases at that stage. But sometimes government pushes back and at that stage then we move to using our voice. We're BC's independent voice for fairness. The voice means that we speak up and as the Supreme Court of Canada has recognized that it's an important part of what an ombuds does is to speak up and so you know that can be part of our toolkit as well and very often through extra, using that voice, then that's, that can be that extra push that government needs sometimes to change its ways. But really what we hope is that our investigations are thorough and our analysis is spot on and that you know public administrators who want to do the right thing see the wisdom in what we're saying and make the changes that we've recommended.

Jon Festinger

So you know independence and your independence is obviously crucial to this. We've talked a fair bit about the independent press, we've talked a fair bit about the independence of the courts, and we've obviously talked a fair bit about the independence of lawyers and why that's needed and adding the independence of ombudspeople you know it does seem like the more independent bodies we have talking to each other, collaborating with each other, and occasionally being in conflict with each other, the more likely we are to have a healthy rule of law society. So I say that editorially as an introduction in a sense to talking about the pandemic and where we are right now. A pandemic is an extraordinary event and it does sometimes feel like we're re-organizing the rule book to put public health and safety first. So let's go back to spring 2020 when the Minister of Public Safety and Solicitor General declared a province-wide state of emergency in BC on March 18th. What does this mean? What powers does this give government?

Jay Chalke

So when, if I can do the time travel with you back to the, earlier this year, I mean I think it is clear that issues were emerging almost hourly, medical shortages, demands for financial relief, disease outbreaks in long term care and in prisons. Then the challenges never stopped and much of the burden for addressing these issues did and still falls on governments. It's governments that have to address many of these challenges. And so you know we very much need our government to deliver on that third part of the Canadian constitutional trifecta of you know peace, order and good government, it's critically important. But we also want governments to work within shared Canadian values. We want them to respect the rule of law, we want them to respect freedom of expression, equitable treatment, protection of the vulnerable, governance that's transparent and accountable. So yes, we want them to be effective but we also want them to do these things in a manner that respects our shared values. 

So it's very common that, and throughout Canada, that there is emergency powers legislation that when it's brought into, when an emergency is declared, governments get extra power. Things that sometimes in previous times would have been the subject of long debate can sometimes happen by the stroke of a cabinet minister's pen. So back in March, the Minister of Public Safety and Solicitor General declared a province-wide emergency under the Emergency Program Act and cabinet's been renewing that declaration every 14 days since which is required by the Act, and that's the state of emergency stays in effect. 

Jon Festinger

So you know when, did you get really busy all of a sudden because of that? Were there tons of complaints from citizens and that's my first question, and related to that, you did find two orders not to be lawful; how did they come into your office, what was that about and tell us something around the origins of those two orders and what you did to them.

Jay Chalke

So to your first point, I mean what's the effect on an office like ours when, with the outbreak of the pandemic, was that virtually every public authority that is under our jurisdiction changed its administration in some way and it was obviously most acute in public bodies that were at the core, the center of pandemic response, things like health authorities, but everything, you know all of a sudden you couldn't do various things in person that you used to do at your local government or renewing your driver's license changed, all of these things changed. So for us whose job it is to ensure that public administration is fair, all of a sudden we had to determine whether whole new schemes of public administration were fair so yes, it's been a very busy time but we're adapting like everybody else. 

But turning to your question, the aspect of your question about the ministerial orders, yes we started reviewing each ministerial order as it was made because under the Emergency Program Act, as I said before, the Solicitor General has the authority to issue orders and so we started reviewing them. The Act empowers the Minister to quote, and I'll quote, to do all acts and implement all procedures that the Minister considers necessary to prevent, respond to or alleviate the effects of an emergency. So that's pretty wide. It's not, maybe not quite as wide as it sounds but it is broad and so by the end of June, the Minister had made about 30 of those orders on a wide range of issues and a subset of those orders purported to suspend or amend statutes, something that normally happens in the legislative assembly but in this case the Minister was proposing or purporting to do so by ministerial fiat. And so that meant that actions that would normally have had public discussion in the legislative assembly were now signed off by the signature of the Minister.

So this is a really important point, Jon, about the rule of law. We have to remember that statutes are, as I said, normally made only in the legislature and there's a good reason for that. They are, those laws have profound impacts on people and so it's a part of the rule of law that if the legislature is to delegate power to a minister or to cabinet that delegation has to be explicit and unequivocal. So there's no doubt that the Minister wields enormous power during a pandemic and that the Minister sought to address lots of real world problems and making his orders but ministerial powers are not unlimited. The Minister, just like every other person who exercises public power, is subject to the rule of law. So the question we asked was what's the extent of the Minister's powers under the Emergency Program Act? Can the Minister change legislation by these orders and ultimately we determined that he did not have that authority.

Jon Festinger

What specific recommendations of your office were implemented by the government?

Jay Chalke

So the day our report came out, the government introduced legislation that implemented a number of things that we had said. Number one we had said that if you want these orders to continue, they need to be validated by the legislature and that was the fundamental of the first premise and the government's legislation did validate those ministerial orders. Secondly, that until that happens that the Minister not do this anymore and that was followed. We also were concerned about this notion of delegation and proportionality and I was pleased to see that in the legislation there was a requirement for that. In addition, we wanted to make sure, there was no requirement in the Emergency Program Act that orders be made public; that is now a requirement. And that the Minister report to the legislature through the Speaker on each order that's made with an explanation and a rational. So all of those were done and I thought that was, it happened immediately after our report was released and there was a good discussion in the legislature of our report and the relationship of emergency powers and the legislative assembly. So I thought all of that was a timely implementation of the things we had recommended. 

The one recommendation we had made that was not, has not yet been adopted, although the government is continuing to review the Emergency Program Act, is that we said that where an order would suspend or amend a statute in future, that it expire after a set number of legislative sitting days so that really it was a temporary order until the Minister could get into the legislature and introduce a bill where it could be debated. The government's legislation basically allowed, validates those orders for a year so they've created a hard deadline as opposed to ours which was very much more connected to getting into the legislature as soon as possible. But by and large, most of our recommendations have been implemented and as I said, as for the last one, the EPA is still under review. It had been under review before the pandemic and now obviously the pandemic has informed or greater informed that consideration by government.  

Jon Festinger

So what's really interesting to me, I mean there's so much that is interesting and important about that order and your process, but something that strikes me, as someone who teaches administrative law, is the courts could come to exactly the same conclusion but it would take much longer and that in fact your office is in fact providing a service not only to British Columbians but to the government by giving them a bit of an early warning system of where they might be getting into trouble because a Supreme Court of Canada decision you know coming to the same conclusion that you have but with teeth really knocking out parts of a government's order or regulations is not a good look for any government. And we've seen that, we don't have to get into it but we've seen that. So the Ombudsperson's Office sort of being in the middle and being real time I'm sure sometimes is frustrating because there's limits to what you can do but actually you're mediating to a better place that may solve problems not only for citizens but also for government. Is that a fair characterization?

Jay Chalke

I think that's a fair characterization and you know we try to look for solutions and try to propose those solutions so that where government has taken a step that we don’t think is right that we, you know we don’t just say you got it wrong but we also say here's how to make it right.

Jon Festinger

When it comes to the COVID related emergency power issue, are we really just talking about lawyers dancing around the head of a pin on this issue or is this something that the public should really care about?

Jay Chalke

Well I think the point of your podcast series and I think the point of what I think we all think about is that the rule of law isn't an issue for lawyers, it's an issue for everybody. The legislative assembly is the supreme law making body in British Columbia. No member of the executive branch, a minister or otherwise, can make laws unless the legislative assembly has expressly delegated that power. And that idea was expressed by the Supreme Court of Canada when it said all expressions of public power must find their source in law. So the Emergency Program Act passed by the legislative assembly set out the kinds of things a minister can do and as we did our investigation that Act did not say that the Minister can make or suspend laws, it didn't expressly say that, and making law is such an important function that if this was something the Minister could do, we would expect that it would be clear and unambiguous in the legislation and it wasn't and it's not something that should be implied. 

And so this matters to the public because rule of law is fundamentally about the limits of government power, what can the government do, what can't it do and this has real impacts on the lives of individuals in our society. If the Minister has implied powers to change a law well then where does that stop? Can they expand police powers? Can they change appeal rights? Can they move dates for elections? So it doesn't matter if the purpose is benevolent, the rule of law is a foundational principle in our parliamentary democracy. 

You know to turn to the Emergency Program Act, it does set out a list of things that the Minister can do in response to an emergency. There's a list in the Act and it includes things like protecting supply chains and we saw early in the pandemic that was an important thing. Evacuating individuals, entering private property, control prices, there we, we all remember some of the examples early on of people who were trying to price gouge and so the Minister has authority to limit that. So the list is not exhaustive and that's where the challenge comes in. What else is included that's not specifically listed that achieves the purpose of what the Minister is able to do and but still respects the Supreme Court of Canada's limitation which says that if you're going to exercise public power, you find that source in law. 

So in the particular cases that we were investigating, those were situations where the Minister had purported to suspend or amend statutes and as I said before, it's normally exercised by the legislature so we found they weren't authorized and we also found that in addition, the orders told other decision makers such as statutory decision makers that they could use their discretion to change or ignore statutory provisions that applied to them without putting any conditions on the exercise of that discretion. For example, a decision maker in government who was normally bound by a timeline could unilaterally waive that timeline or a local government could exclude the public from meetings that would otherwise have to be publically accessible and they were not required, as it was originally cast in the order, to make provisions for alternative public access. 

So we were concerned that the orders had been made in a way that was not consistent with the principles of good public administration and could lead to inconsistent or arbitrary decision making. I think that when you think about the orders that we were looking at, they are so connected with the notion of respect for the rule of law that I think it raises those questions. And you know you raised the issue around the world and I think you know obviously one of the things that we highly value in Canada is respect for the rule of law and how that gets articulated you know in ways that you know yes, obviously the primary way people think of our courts but there are other ways and my colleagues and I across the country, but also the other independent officers in British Columbia are a part of that fabric of the rule of law.

Jon Festinger

You know it sort of comes up again and again, there is a formula for creating law in rule of law societies and that formula has some stretch in it but not a ton and if there ends up being stretched too far by common sense or otherwise, there's danger of a tear and that's what we don’t want and I guess it's fair to say that the Ombudsperson's Office makes huge contribution. I think lawyers make a huge contribution to that. Government has to, through its own self-discipline, make the biggest contribution. And the courts of course make a giant contribution and all these things kind of work together so we're, I'm grateful and we're all grateful for what your office does. 

I'm gonna end by talking about something that we cannot put you on the spot to talk about because you may well be asked to take part in the debate in the unique way that the Ombudsperson's Office would, and that is that you know not just in Canada and in fact less so in Canada than in the rest of the world, there is a debate around the connection between liberty and wearing masks in a pandemic and you know it is interesting to me how you know the non-discriminatory wearing of masks, if everybody has to wear a mask, why is that a problem? But it does seem to be a problem that is oft debated in the media and certainly on the internet and I don’t know if there's anything at all you can say about the issue except in very general terms.

Jay Chalke

Well thanks Jon, yeah, I think I won't comment specifically on the question of mask wearing 'cause you're right, obviously how any order is administered by the various public bodies in British Columbia might be the subject of a future complaint to us. 

But what I will say is that one thing that we have started doing quite actively in the last couple of years is we have a team, a small team in our office, four of us, who are responsible for consulting proactively with governments who are making a change and so if they're adopting a new program or changing an existing program, governments come to us and seek our advice about how to make sure that they get it right the first time 'cause a stitch in time saves nine and certainly governments want to make sure that in their implementing of any program that they avoid the pitfalls that are described in all those examples of a maladministration that I talked about before. And so we help government quite regularly whenever there's a new program to try and get it right the first time. It's obviously up to government whether they're interested in seeking our advice and following it but I think that we have so far over the last few years certainly provided a useful proactive service. So it isn't only that we'll on a reactive basis receive a complaint and conduct an investigation; we also try to help government be fair from the very beginning.

Jon Festinger

Awesome. How do we find you?

Jay Chalke

Great, so you can call, anybody who has a complaint about public administration at the provincial or local level can call us. Our 1-800 number is 1-800-567-3247. Our website is bcombudsperson.ca. On that website we've got something called complaint checker so you can determine whether or not your complaint is about a public body that we have jurisdiction over. We have some 40 years' worth of public reports all posted there so you can look at our, all the various public reports of cases that we've done over the years to see whether there's one of interest to you and we're really here for anybody in the province who has a concern.

Jon Festinger

Thank you very much Jay, thank you for your time and thank you for the wise work that you and your office does.

Jay Chalke

Thanks Jon, it's been really fun talking about it.

Jon Festinger

Let's summarize our discussions with Jay. Jay started off by telling us what his office does. Anyone who has a concern with a government body can contact the Ombudsperson and they will work towards a solution. He gave us some background on the unique position the Ombudsperson's Office has in BC in helping to uphold the rule of law. We discussed the investigation he conducted on the orders the BC government made in response to COVID 19 and why two of those orders were found to be unlawful. We also talked about why the public should care about how laws are made, enacted, and implemented even during a state of emergency. Thank you for listening today. If you want to find out more about the rule of law, visit the Law Society's website at lawsociety.bc.ca. Vinnie Yuen was our terrific producer today. This is your host, Jon Festinger, signing off.