Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Special Edition - Bill 7: Eby Power Grab Partially Walked Back
Premier David Eby's partial retreat on the Economic Stabilization Tariff Response Act marks a significant moment in BC's response to US tariff threats. While the government has agreed to remove Part 4 of Bill 7—the section granting powers to amend legislation without parliamentary approval—legal expert Michael Mulligan reveals why serious concerns remain.
The bill still contains provisions allowing the government to unilaterally cancel contracts, change procurement practices, and impose taxes without legislative debate. Particularly troubling is language that prevents affected parties from seeking judicial review of government actions—a fundamental protection in democratic systems. "Protection against legal proceedings" suggests the government wants to shield itself from court challenges, raising serious questions about accountability.
Mulligan's analysis cuts to the heart of democratic governance: should we empower executives with unilateral authority, even during international disputes? He draws a striking parallel between the chaos of Trump's tariff decisions and the risks of BC's proposed response: "Left-wing populism is not a good response to right-wing populism." The comparison to Ontario Premier Doug Ford's hasty electricity tariff—quickly announced, then withdrawn—serves as a cautionary tale about reactive governance without deliberation.
The remaining sections of Bill 7 grant more extensive powers than were used during the COVID-19 pandemic, despite facing only economic threats rather than a public health emergency. As Mulligan notes, "We are not at war with the United States." Want to understand the delicate balance between government authority and democratic safeguards? Listen to this essential breakdown of how emergency powers can fundamentally reshape governance when we're not looking closely enough.
Follow this link for links to the legislation discussed.
This is your track.
Jill Bennett:This is the Jill Bennett show on 730 CKNW. Earlier today we heard from BC Premier David Eby he was walking back a portion of the NDP's response bill. This was a bill dealing with the threat of tariffs from the United States, but this bill did get a lot of backlash, including from former premiers. It's an extreme overreach. It's serious. Don't misunderstand me, but there's no war. So I thought it was an extraordinary grab of power that didn't need to be done. That was former Premier Ujal Dossange and again earlier today David Eby announced that part of that bill would be pulled back.
David Eby:We'll be pulling part four of Bill 7 to ensure that we get the balance right. My commitment to British Columbians is I will continue to ensure that we have the ability to respond quickly. But if there's a chance for us to retool this and ensure that the safeguards are in place to make people feel comfortable that there's democratic and legislative oversight of these incredibly important provisions, then we will do so.
Jill Bennett:Joining me now is Michael Mulligan, a lawyer with Mulligan Defence Lawyers. Michael, thank you for being with us today.
Michael Mulligan:Hey, good afternoon. Thank you very much for having me.
Jill Bennett:Well, good afternoon. And before we get into the specifics of what the removal of part four of the bill, the Economic Stabilization Tariff Response Act, what that does, can you go through some of the concerns? You and I know many others, we've talked about it, we were talking about it here yesterday, but what concerns did you have specifically with this bill?
Michael Mulligan:Well, there are multiple sections to the bill. There are five sections in total, and today the Premier walked back section or part four of it. There are a number of concerns. Broadly speaking, section four allowed virtually unfettered power to amend legislation without passing it through the House, and so you can easily imagine just how broad that is and why that is offensive to democratic norms and the legislative process. There are, however, other sections and parts of this bill that remain that people should be aware of and consider whether they think they're appropriate. So, for example, part 2 of the bill Bill 7, deals with government procurement, and so, if passed as it currently stands, it would allow the government virtually unfettered discretion to change government procurement, cancel contracts, determine who they're purchasing and not purchasing things from.
Michael Mulligan:That particular provision interestingly doesn't have one of the constraints that existed in that really broad section, part four, that the government just backed away from. That part four required changes to legislation to specifically address challenges anticipated from a foreign jurisdiction. That doesn't exist at all in Part 2. And so the government, if passed in this way, could, for example, decide to unilaterally cancel government contracts and for whatever reason they saw fit. Another element of Part 2 that people should be aware of. That's a concern is that it actually prohibits people affected by that from going to court. So if a person tried to seek damages for some unilateral action by the government, it would prevent them from going to court to challenge it, and it's entitled protection against legal proceedings that generally we don't need to protect ourselves from the courts reviewing things. So that's a concern.
Michael Mulligan:There's another section, part 3, which would remain Part 3, would permit the government to unilaterally, without debate in the legislature, do things like impose taxes or fees for, for example, people wanting to travel to Alaska. Now you may think that's a good idea, you may think not, but we've heard, for example, a response from Alaska saying, if you do that, one of the responses may be to remove provisions that currently require cruise ships from the US to stop in Canada, so it might be the end of the cruise industry. Now there could be a legitimate debate about whether that's a good or bad idea, but the concern with this kind of legislation is that it would remove the debate. There's good reason why we have decisions, important decisions debated in the legislature so there can be sober contemplation of the pros and cons, and this would allow that sort of unilateral action that could have really broad effects to occur without debate in the legislature. So that would remain, and remains, a concern.
Michael Mulligan:Another part of the bill Part 5, has a bit of a sleeper provision that I don't think many people might appreciate what effect it would have. In Section 27 under Part 5, and the heading there is General Provisions, so it would apply to all of the other provisions of the Act. And when you read it it simply says Section 5 of the Offense Act does not apply to this Act and the regulations or the directives. And you might think what does that mean? It seems to suggest this is somehow less serious, but it's quite the opposite, and it has to do with how that interfaces with a section of the criminal code.
Michael Mulligan:Section 127 of the criminal code in Canada provides that if a person disobeys an order made by a court or a body of persons authorized by the act to make an order other than for a payment of money, it turns that into an indictable offense punishable by two years in prison, and the bill doesn't contain another provision for penalty, and so that default provision under the criminal code could have application. And so the broad concern is that even without the sort of completely unchecked provisions of Part 4, it could make somebody breaching a directive or order under this bill subject to criminal prosecution, and so we need to think carefully about whether we want to turn over unilateral power to the government to make orders and do things that could lead to criminal consequences for people without debate.
Jill Bennett:Is there anything in the bill you think, given the situation with the United States? Is there any part of this bill that is warranted or necessary to deal with the tariffs and to be part of the tariff response?
Michael Mulligan:Well, I think there is legitimate consideration should be given to appropriate responses, and this bill is not necessary to permit any kind of a legislative response.
Michael Mulligan:What this bill would do is allow the government premier effectively to respond unilaterally without debate, and so it's not a matter of without this bill, there couldn't be an appropriate, measured response to some arbitrary action by President Trump. What this bill would do would be to empower the premier and provincial government to engage in their own unilateral action in response, and so, in my judgment, it's not an appropriate response to chaotic, unilateral actions by the US president should not be to empower our provincial premier to engage in his own unilateral and perhaps poorly thought out responses. Left-wing populism is not a good response to right-wing populism, and there's good reason why we have a legislative process so that proposals can be debated, public can see it, hear the pros and cons, hear those things challenged and then make a decision. And so, in my judgment, prudence would dictate we avail ourselves of that process rather than trying to empower the premier to get out a big felt pen and respond quickly without debate.
Jill Bennett:So, with the rolling back then of part four and the Premier saying he is doing this because he didn't get the balance right and, due to some of the pushback, some of the concerns, many of which you just raised, that that is the reason why he's doing this, I get the sense that you and many others who have raised these concerns would say that doesn't go far enough.
Michael Mulligan:I think that's correct. It's a good move. I'm glad he received the message that completely unchecked power to amend legislation without debate is rather a bit much, but the provisions that remain the other parts of this bill bit much. But the provisions that remain, the other parts of this bill allow the same sort of arbitrary decision-making without debate by the premier and provincial government, and so none of that is to say that there aren't going to be, there may not be or there might not be circumstances where there would be an appropriate response. It's a matter of whether a response has to be so quick that there's no time to have debate over it. That's really what this amounts to. Without this bill, the legislature could well debate and pass legislation very quickly. This bill, if passed, would allow the premier and provincial government to do those things unilaterally, without debate, and so I think people need to think about is that necessary or wise right?
Michael Mulligan:We've seen the chaos that's flowed from President Trump implementing tariffs and then removing tariffs.
Michael Mulligan:And having a good day or having a bad day on the phone and things going on and off it creates chaos. And having a good day or having a bad day on the phone and things going on and off, it creates chaos. And in the press conference today where he was backing off of the Part 4 of this bill, the Premier seemed to speak favorably about the circumstances in Ontario, with Doug Ford unilaterally adding an export tariff to electricity and then he quickly cancelled that a short time later, and I don't think that's an indication of success. I mean, certainly if you're Doug Ford, you want to get attention for the provincial election or for whatever other purpose that might make you look tough or get you on the TV or radio talking about it, but I don't think that was a sign of success. And so this bill would be to empower our premier to engage in some areas now the same sort of on the quick, arbitrary decision making, and that's not likely to be a successful long term response.
Jill Bennett:I know, and I think many would agree with that, that's that breakdown of what happened with Doug Ford and the electricity tariff. One other question, michael, because this has been brought up as well, that these powers, this bill the way it is, and maybe even with the removal of Part 4, they go beyond the response that we were even dealing with when COVID was happening, when we were in the midst of a global pandemic. We are not at war with the United States. Granted, things are serious and they're not good, but we aren't at war. So is this really necessary at all?
Michael Mulligan:In my judgment, no, and it's simply because if there is a good idea in terms of a response that can be debated in the legislature, it can be passed quickly. It's not as if uh the concept of having people debate things or discuss them or uh have decisions made in a public way prevents a good and measured response. We have that, uh. This would be to use this current um state of affairs, with chaotic, harmful decisions being made unilaterally by a US president, to try to use that as an opportunity to take authority to make unilateral decisions in the other direction. I don't think that should be the takeaway. We need to respond. We should respond carefully and appropriately. But there's good reason why we have a legislature, why we have elections, why we have debates, why we do and make those large and important decisions in a public way. There's benefit to that. I rather suspect in the US case. If there wasn't delegated authority to the US president to unilaterally add and subtract tariffs at whim, we wouldn't be engaged in the sort of chaos we're currently engaged in. If there was a proposal in the US, for example, to increase tariffs for some reason and that had to be debated in the House of Representatives or the Senate it had to be passed. You wouldn't see tariffs on one day, tariffs off after a very nice phone call or a very nice letter and then back on the day after that. There's good reason why we don't have a system where we elect one sort of czar and allow them to do whatever they feel like at whim. There's good reason why we have a legislative process and debate and so on, and this bill, on a number of fronts, attempts to undo that, using the chaos with the United States as the justification for it. It's good news that they've backed off one of the parts of this bill, but in my judgment, the other parts, which would remain if passed as they currently sit, would simply do that in some other areas, and we shouldn't have legislation that does things like tries to prevent a person going to court to challenge something. Why? I mean we've seen that in the US with, I guess, pushback from courts about whether things that President Trump has done are lawful or not.
Michael Mulligan:And when you read part two of this bill Trump has done are lawful or not, and when you read part two of this bill, the government attempts to prevent people from going to court challenging, for example, procurement decisions. Right, I mean you would hope the government would act reasonably with things. I'm sure that's the hope always. But for example, under the procurement directives, if the premier decided they were going to I don't know cancel all non-union contracts, well that would be that then and there'd be no legal proceedings and they couldn't be commenced or maintained to seek any compensation for doing that. The part doesn't even require changes to procurement directives, like contracts and so on, to have anything to do with a foreign jurisdiction, donald Trump or trade. I mean at least part four, which allowed sweeping changes to any piece of legislation, at least required it to be somehow in response to a foreign jurisdiction or anticipated challenge to British Columbia. Part two doesn't require any of that. So in my judgment, we ought to be very, very careful before passing something like this.
Jill Bennett:Michael Mulligan, we'll leave it there. Thank you for joining us today.
Michael Mulligan:Thank you so much for having me have a great day.
Jill Bennett:You too. That is Michael Mulligan, a lawyer with Mulligan Defense Lawyers.