“It is the difficult times… that test us – whether we are true to our principles, or we throw principles out the window because it’s expedient to do it.”
–Ujjal Dosanjh
A former BC NDP premier and BC Liberal attorney general rejected David Eby’s argument his government needs unprecedented and sweeping decision-making powers to deal with the American trade dispute, calling Bill 7 “fundamentally wrong” and a “brutal assault” on democratic governance.
“Cabinet is essentially given the power to override the legislation of British Columbia,” said Geoff Plant, a Vancouver litigation lawyer and former BC Liberal attorney general.
“That’s fundamentally wrong.”
Bill 7 Economic Stabilization (Tariff Response) Act will give the premier and cabinet the power to override any law or regulation to support “the economy of British Columbia and Canada” and address “challenges” or “anticipated challenges” to reduce inter-provincial trade barriers.
Premier David Eby has said his government needs this wide-open decision-making capacity, unfettered by legislative oversight, to act swiftly in response to ongoing threats from U.S. President Donald Trump.
“The guardrails that are put in place make it specific that the power could be used if there is something from a foreign jurisdiction that impacts our economy,” said Attorney General Niki Sharma, who introduced the bill. “So, it’s not broad in the sense of anything. It has to be something that shows it’s an emergency action based on the tariff and the trade war we’re in right now.”
But critics call it an unwarranted power grab, saying the bill confers unnecessarily excessive decision-making authority to the premier and cabinet, essentially allowing B.C.’s Premier David Eby to do exactly what President Trump is doing – swiftly sign executive orders by subverting the democratic process.
The bill contains a requirement to report to the legislature twice a year on what cabinet and the premier have done after-the-fact, with no obligation to debate or approve the changes by legislators, which Plant called “the most offensive part.”
Former BC NDP premier and attorney general, Ujjal Dosanjh, was similarly taken aback by the scope of the bill.
“This is a fundamental brutal assault on our Constitution, on our way of governing ourselves and it is not warranted by anything I can imagine,” he said.
“It just boggles the mind.
“I understand when you are governing, you are at the centre of things, and things are coming at you, left, right and centre and you have to confront them. You have to deal with them. What you mustn’t do, is cast away the way we govern ourselves. And that’s what they’ve done in this instance,” said Dosanjh, who was attorney general from 1995 to 2000 and premier from early 2000 until mid-2001.
“I can’t imagine any circumstances under which any government in a democracy should be given these powers in a blank cheque.”
Also sharing the view that Bill 7 represents a staggering overreach of power was the man who followed Dosanjh in office, former BC Liberal premier Gordon Campbell. “Taking away democratic rights weakens us and destabilizes our future,” Campbell wrote in a Mar. 24 OpEd for Vancouver is Awesome, calling Eby’s bill “the move of an aspiring autocrat.”
Bill 7 will allow premier and cabinet to override any law
Besides allowing the premier and cabinet the authority to change laws and regulations, Bill 7 would grant Eby the ability to override regulatory authorities, as well as any “bylaw, rule, resolution, practice, policy, standard, procedure, measure or other record.” This could include changes to the building code, municipal zoning authorities, and legislated independent regulators across the sectors.
“Government is essentially wanting to drive a truck through whatever subject matter, competence or independence would exist in those agencies,” said Plant, who served as Dosanjh’s attorney general critic for four years, before the BC Liberals were elected to government in 2001 and he became the province’s attorney general.
Under the law, the premier would also have the power to apply tolls, fees or charges “for the use of a provincial undertaking,” a hugely broad category of infrastructure and services that could go far beyond the premier’s public musing about charging ferry passengers and traffic headed to the United States.
“Let’s be clear, that’s not the use by the truck drivers of Alaska. That’s the use by anyone, anywhere, of any undertaking in British Columbia,” Plant said, adding if this section of the bill is intended to pertain only to ferries and truck drivers headed to Alaska, the bill should be more precise.
If, however, these provisions are intended to make way for the government to levy a system of charges across all manner of infrastructure – to dig itself out of a $10 billion deficit, say – this section might do the trick.
The only exceptions to the bill are that it can’t be used to sidestep either the environmental assessment process or Indigenous consultation requirements for resource development.
Change laws with the stroke of a pen
Another glaring flaw in Bill 7 is how it circumvents an integral process of accountability and analysis of government procurement and fiscal policies, basically “eviscerating” Treasury Board, Plant said.
“It allows the cabinet to spend significant amounts of money purchasing goods and services, or refusing to purchase goods and services, without any oversight of Treasury Board.
“I just don’t understand why you would do that.”
Taken together, it means with barely more than the stroke of a pen, the premier would be able to create or change almost any law at any time, purchase goods and services (or not), and even commit to capital projects without legislative approval as long as the actions support the economy or meet “anticipated” challenges.
“Constitutionally, it’s not the business of the government of British Columbia to be expressly looking to support the economy of Canada, but that’s not the real problem here,” said Plant.
“Across the whole spectrum of the laws of British Columbia, there is any number of things that someone could say, ‘Well, I want to do this in order to improve the economy.’
“Just to be kind of neoliberal for a moment, Karl Marx and Vladimir Lenin thought what they were doing would improve the economy of Europe and Russia. So did Frederick Hayek and John Stuart Mill.”
A power grab to combat a power grab?
Plant pushed back against the framing of the bill. “That the only way you can respond to the egregious assertion of executive authority by the president of the United States is to give a whole lot of executive authority to the premier of British Columbia.”
He also disagrees with the fundamental principle of the bill which asserts government must respond with great speed “to the menace from down south.”
“I don’t think that because the President of the United States has dumped something at noon, then that means that the premier of British Columbia has to be able to respond by 4pm. I just flatly disagree with that proposition.
“I actually think that responding with speed maximizes the chances that we’ll respond incorrectly. What we really ought to be doing is to try to be as thoughtful and deliberate and determined as possible,” said Plant, adding the legislature of British Columbia is perfectly capable of acting with speed.
The legislature has been recalled quickly to deal with many urgent matters, such as back-to-work legislation, and most recently, COVID legislation.
“The idea that you have to concentrate this power in the cabinet and in the premier because you need to be able to respond quickly, I think is wrong in principle. But it’s also an incorrect assessment of how government in British Columbia can work,” said Plant.
More transparency needed, not less
The legislature normally gives cabinet and the premier control to decide all sorts of things. Whether the house is going to sit, what legislation will get brought before legislators for consideration and the duty of making regulations. But it does all this within certain broad parameters and fixed rules.
“It’s still fundamentally the case that we expect that the legislature makes the law and then cabinet executes it,” said Plant.
“And my own political philosophy perspective is that in order for us to have a democratically accountable government operating in the way that I think it should, we want more work to be done in public… and the minimum possible amount of work being done in the secrecy of a cabinet room.”
During his four years as B.C.’s attorney general from 2001 to 2005, Plant was chair of the Legislative Review Committee. “I would say, why do you need this power? Why do you need as much of it? Why don’t you be more clear about what you’re going to do with this authority?
“And this bill fails all of that.”
The fact this bill even saw the light of day reveals a completely different process of developing laws under Eby’s government. Part of that may be seen in the composition of the current legislative review committee, where the house leader, rather than the attorney general, is chair. Despite the primary role of legislative counsel in drafting bills, the priority of the committee appears to have shifted from challenging the strength and necessity of the bills to just getting them passed.
Eby’s misdirection ‘a big deal’
When asked by political correspondent Rob Shaw if the legislation allowed the premier to bypass the democratic system on a whim similar to what the U.S. president enjoys, the premier said “not at all” and asserted the bill had adequate balance because changes would have to be ratified by MLAs – which, according to the bill, they do not.
“The bill actually requires these orders in council, these regulations, to come to the legislature to be ratified by the legislature,” the premier told reporters on Mar. 13.
“He’s completely wrong about that,” said Plant.
According to the Act, any actions by cabinet or the premier need only be reported after-the-fact to the legislature twice a year. There is no requirement for debate, approval or ratification.
Yet, as the Vancouver Sun’s Vaughn Palmer first reported, Eby repeated this inaccuracy three times during the press conference he led, while Attorney General Niki Sharma, who introduced the bill, stood silently by his side.
Sharma did not correct Eby’s misrepresentation, but said at one point, “any action used under the emergency powers would come to the legislature, and there’s a reporting requirement for that.”
There are two possibilities why Eby might’ve repeated this mistruth without correction by Sharma. The premier either misunderstood the core intention of his government’s own bill or he purposely misled the public.
To imagine a ratification provision that isn’t there means Eby did not read the bill himself and did not get a proper briefing from anyone on the details of the bill – a blatant lapse by the premier, the attorney general and both their staffs.
“The premier I know best [Gordon Campbell] would have had me [as attorney general] in his office by myself for an hour, and we would have read every clause,” said Plant. “Not because of his massive intellectual curiosity, but because the last thing he would want would be to be in front of the public defending this bill and getting it wrong.”
In the case of Bill 7, whether the premier knew the error of his words or not, the Attorney General must’ve have known the contents of her own bill and should understand the difference between going to the legislature to ratify something as opposed to reporting about it.
Given the purpose of the bill is to cut the legislature out of its primary function of making laws, this misdirect by the premier and silence by his attorney general is not a minor misstep.
The core criticism of Bill 7 is the concentration of arguably unaccountable and over-extensive power in the cabinet, and this is the premier then “trying to calm us all down” by saying there is a ratification provision, said Plant.
“It’s a big deal.”
Because it’s not true.
“It’s the obligation of the attorney general in that situation to ensure that the public is not misinformed and to state correctly the mechanism of the bill, even if that means she is seen to be correcting her boss,” Plant said.
He called it “quite a breathtaking moment of demonstrating that she [either] doesn’t pay attention to her job” by not knowing the contents of the bill, or that “she has no understanding of what her duty as attorney general is” to ensure the affairs of the province are in accordance with the law and the government is told what the law is.
“By not doing that, she did not do honour to the office that she holds.”
If the omission of a ratification provision was a genuine mistake – sloppy and unprofessional as that would be – they could have committed to correcting the oversight.
But they haven’t.
“They’re not going to do that,” said Plant. “The whole point of the bill is to give cabinet the power to do stuff on a moment’s notice without having to go to the legislature.”
Ergo, the premier and the attorney general both knew there was no ratification clause yet deliberately misled the public otherwise.
Repeal date more a speed bump than a backstop
When pressed by reporters on the apparent overreach of the bill, Eby got defensive. If legislators don’t like it, they can vote his government out, he said.
An unlikely prospect for a majority government, even one that squeaked by with a 22-vote win.
“If it’s a majority government [Eby’s challenge] is meaningless, because there is never any meaningful free vote from the government benches,” said Dosanjh.
Eby justified the bill’s pre-emptive nature of responding to “anticipated harm,” saying it would have to stand up in court.
“That’s a standard that would have to be defended in front of a judge on judicial review, that there was a reasonable expectation that there was going to be harm caused by a foreign government to the B.C. economy,” said Eby.
Which is Eby essentially saying if people don’t like it, sue us.
Judging by the number of ongoing lawsuits against Eby’s legislation, being the defendant seems to suit the premier just fine.
Both Plant and Dosanjh were doubtful a successful constitutional challenge could be mounted against the bill, but the flippancy of the premier’s comment didn’t go over well.
“That is no excuse. There are a lot of things the law allows governments to do in emergencies, or should allow, but this is not that kind of an emergency. We don’t have a physical war being declared upon us. This is trade, this is economy… this is not an emergency where you need these kinds of massive blanket unquestioned powers,” Dosanjh said.
“For a premier to simply say, sue me, you know, I’m speechless.”
And the May 28, 2027 repeal date is cold comfort.
“I don’t think you cure the excesses and the problems with this legislation by saying it’s temporary,” said Plant. “It’s more flawed than that and I guess I have to say that a government that could do this is not a government that I would trust enough to be sure that they won’t just come into the legislature two years from now and extend that date.”
Indeed.
Trump’s term as president ends in January 2029 and Eby is already speculating about extending the legislation past the repeal date.
“The bill will have to be reintroduced again … we’ll have to be accountable to the legislature to ask for those authorities again,” he said.
‘What’s democracy?’
Watching the American administration exercising its executive authority in an unprecedented expansive way should make our governments more, not less, sensitive to over-reaching their authority, Plant observed.
“We might ask ourselves whether we want to respond in a way that’s Canadian, rather than imitating the way that the guy down south is governing.”
Instead of giving cabinet power in these relatively unchecked terms, Plant said government should figure out which regulatory bodies and which exact rules they want to override, then do it specifically. In this way, government could deal with situations as emergencies arise.
Dosanjh agreed.
“Then you’re facing a real situation, and you give the powers,” he said.
“I understand the fear that we have of what tariffs will do to our economy or might do to our economy and our way of life. But what is a way of life if you have no basic rules that have evolved over centuries to govern us?” Dosanjh asked.
“What’s democracy? In the end, it’s not just when it’s convenient that we must have democracy. We must always have democracy.”