Empowering Canadians by providing education and information, resources and tools to enhance advocacy skills to exercise civil and human rights in our daily lives
Disclaimer: I am not a lawyer. I am a public interest advocate, writer, and publisher. If you have additional questions about these legal matters, I suggest that you seek legal advice from a lawyer practicing in your province, or territory. You may be able to find free legal advise by contacting a Pro Bono organization in your province/territory. See a list here.
Introduction
In this article, I will provide a brief introduction to Sec. 2 of the Canadian Charter of Rights and Freedoms as it pertains to the constitutional right to freedom of conscience and religion, peaceful assembly and association. I also provide information on Sec.
What is the Canadian Charter of Rights and Freedoms?
The Canadian Charter of Rights and Freedoms sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society.
The Charter is one part of the Canadian Constitution. The Constitution is a set of laws containing the basic rules about how our country operates. For example, it states the powers of the federal, and provincial and territorial governments in Canada.
Guarantee of rights and freedoms – section 1
1. Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Fundamental freedoms – section 2
2. Everyone has the following fundamental freedoms:
freedom of conscience and religion;
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
freedom of peaceful assembly; and
freedom of association.
Under section 2 of the Charter, Canadians are free to follow the religion of their choice. In addition, they are guaranteed freedom of thought, belief and expression. Since the media are an important means for communicating thoughts and ideas, the Charter protects the right of the press and other media to speak out. Our right to gather and act in peaceful groups is also protected, as is our right to belong to an association like a trade union.
These freedoms are set out in the Charter to ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely to other people. These activities are basic forms of individual liberty. They are also important to the success of a democratic society like Canada. In a democracy, people must be free to discuss matters of public policy, criticize governments and offer their own solutions to social problems.
"Indeed, for religious groups, freedom of peaceful assembly is not the only Charter freedom that has felt the impact of COVID-19 restrictions. Freedom of religion is also at stake as a result.
While religious freedom consists of far more than the act of communal worship, there is little doubt that worship itself – facilitated by peaceful assembly – is central to this constitutionally-guaranteed freedom. Necessary compromises during this pandemic have come at great personal cost to many people of faith as they live through significant limitations on two fundamental Charter freedoms.
The fact remains that, on the whole, policymakers have been slow to acknowledge the very real impact of the lockdown on religious communities. While Charter claims are not simple matters of keeping score, many Canadians are still facing significant and simultaneous limits on their religious freedom and their freedom to peacefully assemble. This is a reality that we can't afford to ignore."
Criminal Code of Canada: Obstructing or violence to or arrest of officiating clergyman
Obstructing or violence to or arrest of officiating clergyman
176(1)Every
person is guilty of an indictable offence and liable to imprisonment
for a term of not more than two years or is guilty of an offence
punishable on summary conviction who
(a) by
threats or force, unlawfully obstructs or prevents or endeavours to
obstruct or prevent an officiant from celebrating a religious or
spiritual service or performing any other function in connection with
their calling, or
(b) knowing
that an officiant is about to perform, is on their way to perform or is
returning from the performance of any of the duties or functions
mentioned in paragraph (a)
(ii) arrests them on a civil process, or under the pretence of executing a civil process.
Marginal note: Disturbing religious worship or certain meetings
(2)Every
one who wilfully disturbs or interrupts an assemblage of persons met
for religious worship or for a moral, social or benevolent purpose is
guilty of an offence punishable on summary conviction.
[Edited on December 5th, 2020 to include information about COVID-19 swabbing, testing and vaccines].
Disclaimer: I am not a lawyer. I am a public interest advocate, writer, and publisher. In this article, I will provide an introduction to informed consent regarding health interventions in Canada. If you have additional questions about these legal matters, I suggest that you seek legal advice from a lawyer practicing in your province, or territory. You may be able to find free legal advise by contacting a Pro Bono organization in your province/territory. See a list here.
Introduction
2020 has been a turning point in many ways. This is nowhere more obvious than the issue of coercive use of health interventions, including masks, temperature screening, and the use of hand sanitizer as screening measures to enter different environments, including businesses, and health care settings. All of these, or a combination of these health interventions, are being forced on members of the public by businesses, and organizations under the guise of stopping the spread of COVID-19.
New: Different phases of health interventions related to COVID-19 have been planned for Canadians by our provincial and federal governments health authorities. The next phase appears to be a plan to engage in the health intervention of the use of mass swabbing and testing of citizens for COVID-19.
The phase after that will include the administration and use of COVID-19 vaccines.
If you do not consent to you, your minor children, or individuals you are the guardian for to be swabbed, tested or administered a COVID-19 vaccine then ensure that you clearly state to any and all authorities who are involved in these actions:
I DO NOT CONSENT under my provincial Health Consent Legislation, or the Canadian Charter of Rights and Freedoms.
In this article, I will review core components of informed consent for health interventions and how people can learn about informed consent in their province, or territory. I will also provide some practical suggestions for how people can approach informed consent in different settings. I will conclude with some ideas for advocacy on the issue of informed consent regarding health interventions.
Informed Consent
Informed consent is a foundation in the use of health interventions. It is also a civil right. Every province and territory in Canada has laws that require peoples' civil rights to autonomy, capability, and self-determination in decision-making regarding providing informed consent, or refusal to use, or participate in health interventions.
Mandates, orders, by-laws and rules being made by businesses, organizations, and different levels of government all violate informed consent laws, because they have removed consent and are coercing and forcing people, often under duress, to use these health interventions in order to access businesses, or services.
I will use B.C., my home province, as an example to outline how informed consent is articulated by the B.C. government in legislation. The B.C. government articulates civil rights to Informed Consent through at least two specific pieces of legislation:
1. The Health Care (Consent) and Care Facility (Admission) Act (1996).
2. The Adult Guardianship Act (1996).
The Health Care (Consent) and Care Facility (Admission) Act (1996) explicitly defines and and outlines key concepts related to health care consent in B.C.
1 "health care" means anything that is done for a
therapeutic, preventive, palliative, diagnostic, cosmetic or other purpose
related to health
Presumption of capability
3(1) Until the contrary is demonstrated, every
adult is presumed to be capable of
(a)giving, refusing or
revoking consent to health care, and
(b)giving or refusing
consent to admission to, or continued residence in, a care facility.
Consent rights
4Every adult
who is capable of giving or refusing consent to health care has
(a)the
right to give consent or to refuse consent on any grounds, including moral or
religious grounds, even if the refusal will result in death,
(b)the
right to select a particular form of available health care on any grounds,
including moral or religious grounds,
(c)the
right to revoke consent,
(d)the
right to expect that a decision to give, refuse or revoke consent will be
respected, and
(e)the
right to be involved to the greatest degree possible in all case planning and
decision making.
Key Concepts & Principles of Informed Consent
➤ Assumption of capability and capacity to make decisions and consent to health interventions, or to refuse to consent and participate in the health intervention
➤ Autonomy and self-determination in decision-making about health interventions
➤ Being told what the health intervention is and what it is for
➤ Being told what the benefits of the health intervention are
➤ Being told what the risks and/or potential side effects, or adverse outcomes could be associated with the health intervention
➤ Being able to understand the information providedabout the health intervention (having capacity and capability)
➤ Voluntary nature of consent
➤ Coercion, duress, or pressureto participate in health interventions is unethical, violates individuals' civil rights, and is unlawful under provincial and federal laws and international agreements that Canada is a signatory to.
Visit Nidus.ca to find out more about the following in BC:
Health Care rights
Personal and Financial Planning
Advanced Care Planning
Representation Agreements
Power of Attorney documents
Adult Guardianship Act (AGA) in B.C.
The AGA also outlines legal rules regarding personal autonomy, self-determination and the right to make personal and health-related decisions and have those decisions respected by others.
Guiding
principles
2This Act is
to be administered and interpreted in accordance with the following principles:
(a)all
adults are entitled to live in the manner they wish and to accept or refuse
support, assistance or protection as long as they do not harm others and they
are capable of making decisions about those matters;
Presumption of
capability
3(1) Until
the contrary is demonstrated, every adult is presumed to be capable of making
decisions about the adult's personal care, health careand financial affairs.
Video: Your Rights to Decline Mandatory Covid Measures with Rocco Galati. (Oct. 20, 2020). Constitutional Rights Centre. Youtube. Retrieved from: https://www.youtube.com/watch?v=Q3wWxJ5L9Pk.
Description: In this media presentation, we cover your common-law, statutory, international, and constitutional rights against mandatory medical procedure and/or treatment without expressed, informed, consent in the context of Covid: Vaccines, Testing, Masking and Contact Tracing.
Businesses and Organizations are Not Health Authorities or Health Care Settings
Masking rules, mandates, and orders have been made across Canada that are forcing people to wear masks, submit to temperature screening, and/or use hand sanitizer or citizens may/can be refused access and entry to shop, receive health care services, or use the premises.
Wide spread coercion of health interventions for wearing masks, submitting to temperature screening, and/or use hand sanitizer is occurring in Canada. If people refuse, they are sometimes being denied access to health care, businesses, and other services. This constitutes violations of peoples' right to informed consent AND in many cases, this discrimination and denial of services are violations of human rights laws in the provinces/territories.
There are no laws enacted by the Canadian government for masks, temperature screening or hand sanitizer.However, there are rules, and policies they have made for federal buildings, and places like points of entry to Canada, such as airports, or customs offices.
The majority of the rules, by-laws, mandates and orders are being made in the provinces and territories by:
City councils in the form of by-laws
Provincial and territorial public health and public safety orders and mandates
Health authority licensing organizations
Workers Compensation Boards
Private businesses and organizations
Challenging and Not Consenting to Health Intervention Rules
Although I am not a lawyer, it is my perspective as a public interest and human rights advocate that these rules, mandates and orders can be challenged, and that consent can be refused for the following reasons:
1. Informed consent for the use of health interventions is a civil and constitutional right that is protected by law in every province and territory in Canada. As Canadians, we cannot be coerced, pressured, or forced under duress to use, participate in, or endure health interventions we do not freely, and voluntarily consent to. If we are, then provincial, federal, and international laws have been broken by whomever violated our rights.
2. Private businesses, and other types of non-health bodies, and organizations are not legally entitled, under any provincial/territorial, or federal laws to enact, coerce, or force people to submit to individual or public health interventions. Doing so violates our civil and human rights to legally provide informed consent, or refuse consent, under provincial human rights laws, and for governmental organizations, the Canadian Charter of Rights and Freedoms.
3. There is no substantive peer-reviewed evidence-based science and research that demonstrates that these health interventions (masking, temperature screening, or hand sanitizer) stop the transmission of infectious diseases, including coronavirus' such as COVID-19.
4. There have been several legal cases (labour relations arbitrations) in Canada that have struck down coercive masking and vaccination policies made by health employers because they were unable to produce substantive evidence-based research that demonstrated masks, or vaccines, prevented the transmission of infectious diseases, including infections. See more here.
What Do I Do If I'm Being Denied Access and Entry to a Business, Health Care Setting, or Organization if I Can't, or Won't Consent to Health Interventions
If you are trying to enter a business and they advise you cannot enter unless you mask yourself (or your children), or be temperature screened, or use hand sanitizer, in a calm, clear and polite manner state: "I do not consent to wear a mask/be temperature screened/use hand sanitizer."
➤ The individual who is making this request will most likely tell you that these are required measures and that you may not be able to enter the business/organization unless you comply with these health interventions.
➤ Turn the video on your phone on and record the interaction if you can, or have someone with you who can record the situation.
➤ Remain calm, polite, and stand your ground with confidence, determination and strength. Do not let "flying monkeys" (bad actors) trigger you, or try to get you to escalate.
➤ Explain that all of these requirements are legally considered health interventions and that under your provincial/territorial laws that the business/organization does not have the legal authority to force you to consent to health interventions. At this point, its a good idea to suggest they get their manager, or the business owner to discuss the situation further.
➤ Explain that you are exempt from wearing a mask for health and/or medical reasons, and/or disabilities and conditions and that these are (most likely) outlined in the orders, or by-laws they are being told to enforce. Ask if they are aware of the requirements around health exemptions.
➤ You cannot legally be asked what your health exemptions, or to produce an "exemption" letter, or "proof." This violates your human rights AND your privacy rights and you can explain that to the person. You can explain this if you are asked for details, or a letter about yourself (or a loved one).
➤ Ask the screening person for their full legal name and cell phone number. Tell them that if you decide to file a human rights complaint for discrimination that you will have to name them in that complaint, and call them as a witness because they are discriminating against you. Reassure them that is your only reason for asking for this and you will keep this information safe and secure.
➤ Ask to speak to the manager/supervisor, and/or owner of the business, or organization so that you can explain that you do not consent to these health interventions, to discuss health exemptions, and advise why the business cannot discriminate against you for mental, or physical health disabilities and conditions and that they are required to follow the human rights laws in your province/territory.
➤ Ask if this business/organization is considered a Health Authority under provincial/territorial legislation.
➤ Ask if they can tell you the potential benefits and/or side effects, and/or risks associated with wearing masks/temperature screening, and/or hand sanitizers.
➤ Ask if they are aware that Health Canada has a list of approved hand sanitizers and has re-called several different brands in 2020. Ask if they have reviewed the list to ensure they are not violating the recall by forcing customers to use unsafe and toxic products and substances.
➤ Ask where the specific screening measures and rules they are using came from to determine who is responsible for them.
➤ Ask if the Workers Compensation Board has required them to have customers/patients wear masks, be temperature screened, or use hand sanitizer.
➤ Ask if the business/organization can show you, or provide you with a copy of their approved "COVID-19 Safety Plan", or if it is available on their website.
➤ Explain to the manager/supervisor that under human rights laws businesses/organizations cannot discriminate against anyone, and that they have a legal duty to accommodate you.Explain that failure to comply with your legal right to consent, or refuse consent to these health interventions can/may lead to legal action in the form of a human rights complaint against them and the business/organization.
➤ You may want to explain human rights complaints are expensive, time consuming, and in case like these will damage the reputation of business/organization, employees, and may end up leading to damages for "Injury to Dignity" due to the discrimination the business/organization has carried out toward you.
➤ Request that the manager/supervisor provide you with a copy of the business/organization's COVID-19 safety policies regarding entry to their business, (such as the requirements for masks, or other screening measure). Ask if their policies have exemptions listed in their policies, and advise that their policies are required to comply with the human rights laws and whether they are aware of that.
➤ Request that they provide you with the name, phone number, and email address for an executive-level manager, or owner of the business/organization so you can contact them to file a formal complaint about how you were treated, that you were discriminated against, and to request the policy about entry to the business/organization.
➤ Ask staff, managers/supervisors if the business owner/employer has provided them with any training about human rights laws and duty to accommodate, and health consent laws in your province/territory.
➤ Consider asking other witnesses to the interactions for their names and contact information if you decide to file a complaint.
➤ Document the date, time, names of participants (store staff and manager) and witnesses, and the discussions and events as they unfolded in a factual, objective, concise, but detailed way as soon as you can so the details are fresh. Record answers to your questions, such as whether the employer has provided training to staff on the human rights laws, duty to accommodate, health exemptions, health consent laws, and Workers Compensation Board involvement.
➤ If anyone starts to escalate toward you, and threatens to call the police leave the premises immediately for your own safety.
➤ If the police attend the scene, try to remain calm, and explain that you do not consent to the coercive health interventions you have been told you must use. Explain that you have health exemptions, and that you simply want your civil and human rights to be respected and to be able to [shop for food/get your medications and necessities like any other person].
➤ Politely request the name and badge number of the police officer and advise that you are requesting this information because you may call them as a witness if you decide to file a human rights complaint against the business/ organization for discriminating against you and violating human rights legislation.
What Kind of Complaints Can I File About Denial to Access Businesses, or Organizations Because I Will Not Consent to Health Interventions
There are several types of complaints you can make:
Write an email, or written letter of complaint to the local store manager, business owner, and/or corporate head office in your province/territory, or in Canada about your experience and advise them they have no legal authority to force health interventions on you (using the name and language of your specific legislation), and/or that they must respect your health exemptions (ensure you clearly noted you were exempt) under your provincial/territorial laws. In a respectful, clear, and concise way explain how this experience and situation impacted you, and/or your family.
Write an email, or written letter of complaint to your MLA and MP in your jurisdiction, and ensure you copy them on any complaints you make about local businesses, or corporate chains that discriminated against you and denied you access, or service. In a respectful, clear, and concise way explain how this experience and situation impacted you, and/or your family.
Your MLA & MP, and the staff in their offices are responsible to constituents. Ask for their help, advocacy and support to ensure all provincial and federal laws are being respected by businesses and organizations in your province/territory and people are not being discriminated against.
Consider filing a formal complaint about a registered health care professionalwho denies you access to health care services for not complying with their coercive demands to use health interventions (masks, that you do not consent to.
Search ➤ Health Care College/Association - Province/territory
For example: Physicians and Surgeons College BC
Carefully reviewthe reasons and process for filing complaints because they are often quite complex. Fair warning, complaints made about health care professionals often take a very long time to go through, so be prepared for this.
Consider filing a formal complaint with your local public health authority about their role in all of these rules. Ask them why their rules for businesses are not compliant with provincial/territorial human rights and health consent laws. Briefly share your experience and how you, and/or your family have been discriminated against, and the impacts of this on you.
Search ➤ Region Health Authority public health officer
Conclusion
At this time there are numerous law suits that have been filed against different provinces, against the Canadian government, and city governments over the unconstitutional nature of the by-laws, orders, and actions taken by different levels of government under the guise of "managing" COVID-19. These will all take some time to strike these things down as the courts move very slowly, and these are complex legal cases.
There are likely hundreds of human rights cases that have been filed across Canada due to the discrimination people with disabilities have been facing because they are unable to wear masks, their health exemptions not being respected and accommodated, and being denied the right to buy food, medications, and other necessities. Denying people the right to equal and fair treatment, inclusion and to fully participate in Canadian society is not consistent with Canadian values, principles, or laws.
I am part of vast networks of people all across Canada who are working to support others who are experiencing individual and systematic violations of their human rights, and their civil and constitutional rights under the provincial and territoral human rights laws, and the Canadian Charter of Rights and Freedoms.
I invite you to email me @ canadianadvocacycentre@gmail.com if there is a particular topic you would like me to write an article about in the area of civil and human rights that would be helpful to others, and to the public interest.
Disclaimer: I am not a lawyer. I am a public interest advocate, writer, and publisher. I will provide an introduction to human rights legislation and organizations. I also provide advocacy information about how to document situations where people may encounter discrimination. Please seek legal consultation via human rights clinics, private lawyers, and/or search to see whether there are pro-bono (free) lawyers who you can consult with if you require legal advice.
Introduction
In this article I provide links to all of the Human Rights laws, commissions and tribunals in Canada in this time of widespread violations of civil and human rights violations to educate, inform and help individuals, businesses and organizations understand the human rights laws in their provinces and territories in Canada.
What Organizations Do Human Rights Laws Apply To?
It is important to understand what laws apply to different organizations in Canada.
Provincial and territorial human rights laws apply to private for-profit businesses, and organizations. This includes governmental and public sector bodies, not-for-profit, community-based, and non-governmental organizations (NGO's).
The Canadian Charter of Rights and Freedomsapply ONLY to public sector and governmental organizations. For example, provincial/territorial and federal governments; health authorities providing community-based care, hospitals, and residential care homes; provincial car insurance organizations; and workers compensation boards.
Human Rights Clinics
Pro tip: In addition to these laws and commissions, you can also do an internet search, or look on their websites to see if they have any human rights clinics that can help you understand whether you have a case. They might also provide you with legal advice and representation depending on their mandates, roles, and availability.
They might also be able to assist you in completing application forms if you have a complaint that is worth pursuing. Its worth looking into. Human rights is a complex area of the law, and getting legal support is always a good idea.
Search 🠞 human rights clinic province/territory
No Discrimination
All private businesses, and organizations (B/O) in Canada are required to be compliant with the human rights legislation in their province, or territory.These B/O's must not discriminate, or refuse service, or access on the protected grounds covered under the law.
Duty to Accommodate
All B/O's are required under human rights laws to accommodate individuals with mental or physical health conditions, or disabilities. Refusal to do so is legally actionable by the person who was discriminated against. This means they may be able to file a human rights complaint against that business.
Human rights complaints are costly, time intensive, and can cause various harms to businesses and organizations. Businesses and organizations will most likely have to pay lawyers to represent them, incurring legal expenses and costs. They can cause reputational damage to B/O's. If the B/O loses the human rights case they will most likely be ordered to pay damages to the person who they/their employees violated their human rights. These are often called, "Injury to Dignity" awards. B/O's can avoid all of these things by familiarizing themselves, and training their staff in human rights legislation and duty to accommodate requirements.
Rocco Galati (2020). Mr. Galati is a constitutional lawyer who is involved in a legal case against Canada, Ontario and many other parties. You can read more about that here.
You can read more about his work at the Constitutional Rights Centre here.
Tips If You Experience Discrimination
If you are trying to enter a business and they are discriminating against you, for instance, if you cannot wear a mask for health reasons:
➤ Turn the video on your phone on and record the interaction if you can, or have someone with you who can record the situation.
➤ Remain calm, polite, and stand your ground with determination and strength. Do not let "flying monkeys" (bad actors) trigger you, or try to get you to escalate.
➤ Explain that you are exempt from wearing a mask for health and/or medical reasons, and/or mental and/or physical health disabilities and conditions.
➤ You cannot legally be asked what those are, or to produce an "exemption" letter, or "proof." This violates your human rights AND your privacy rights and you can explain that to the person. You can explain that if asked for details, or a letter.
➤ Ask the person for their full legal name and cell phone number. Tell them that if you decide to file a human rights complaint for discrimination that you will have to name them in that complaint, and call them as a witness because they are discriminating against you. Reassure them that is your only reason for asking for this and you will keep this information safe and secure.
➤ Ask to speak to the manager/supervisor, and/or owner of the business, or organization so that you can discuss your health exemption and why the business cannot discriminate against you for mental, or physical health disabilities and conditions and that they are required to follow the human rights laws in your province/territory.
➤ Explain to the manager/supervisor that under human rights laws businesses/organizations cannot discriminate against anyone, and that they have a legal duty to accommodate you.Explain that failure to comply with these legal requirements can/may lead to legal action in the form of a human rights complaint against them and the business/organization.
➤ You may want to explain human rights complaints are expensive, time consuming, and in case like these will damage the reputation of business/organization, employees, and may end up leading to damages for "Injury to Dignity" due to the discrimination the business/organization has carried out toward you.
➤ Request that the manager/supervisor provide you with a copy of the business/organization's policies regarding entry to their business, (such as the requirements for masks, or other screening measure). Ask if their policies have exemptions listed in their policies, and that their policies are required to comply with the human rights laws.
➤ If they cannot, or will not provide you with their policies, request that they provide you with the name, phone number, and email address for an executive-level manager, or owner of the business/organization so you can contact them to file a formal complaint about how you were treated, that you were discriminated against, and denied the policy about entry to the business/organization.
➤ Ask staff, managers/supervisors if the business owner/employer has provided them with any training about the human rights laws and duty to accommodate.
➤ Consider asking other witnesses to the interactions for their names and contact information if you decide to file a complaint.
➤ Document the date, time, names of participants (store staff and manager) and witnesses, and the events as they unfolded as soon as you can so the details are fresh. Record whether the employer has provided training to staff on the human rights laws, duty to accommodate, and health exemptions.
Part 1: Human Rights in Canada: An Overview for Newcomers
Author: Tracey Young, Nov. 17, 2020. Canadian Advocacy Centre for Health, Safety & Justice.
Introduction
Much confusion is swirling around in B.C. regarding our current political situation, and who is in charge of running the B.C. government. I will attempt to clarify some of this, although many details remain murky.
Disclaimer: I am not a lawyer. I am a public interest advocate, writer, and publisher. I will provide a brief introduction to legislation regarding elections and how parliamentary democracy works in B.C to assist people in understanding how Members of the Legislature (MLA's) are elected, and become Parliamentarians.
I will also provide an analysis of what I understand about who is currently in charge of the B.C. government. This is only an analysis. There may be additional details that I am not currently aware of at the present time when I'm writing this article. I will update and/or edit this article should I receive additional information from credible sources.
The 41st Parliament and BC Legislature Was Dissolved
When the Lieutenant Governor of B.C. accepted the election call request, pursuant to the Constitution Act and Election Act of B.C., this led to the dissolution of the B.C. Legislature. The impact of that includes the following:
1. It ended the 41st Parliament of B.C. All business of the House came to a close. This call ended all government Steering committees and legislative work that had been ongoing, including any Bills that were still in progress.
2. All Members of the Legislature (MLA's) who had been elected in 2017 to form the 41st Parliament ceased to become MLA's because the Legislature was dissolved.
3. The impact of this election call is that B.C. no longer had any more Ministers of the Crown by law. There was also no longer a BCNDP Executive Cabinet. However, as of today's date, November 17, 2020, the B.C. government continues to provide a link to a website that lists the previous BCNDP cabinet and their respective Ministerial assignments. Some of those individuals did not run in the 42nd election.
The Ministerial and Premier's email addresses listed for these individuals are not currently operational.
4. The constituencies of each MLA were dissolved and their offices were supposed to be closed, because the MLA no longer represented the people in their ridings due to the dissolution of the B.C. Legislature.
Seven members of the BCNDP Cabinet Executive announced they would not be running for office again. Its become a lot more clear why people may have made that proactive decision in light of what's currently happening, and events that will unfold in the future.
These individuals are all still listed as Cabinet Ministers on the B.C. government website even though they are no longer MLA's. Their former Ministries no longer have Ministers appointed as members of Cabinet.
There appears to be some sort of exception -- Carole James, former Minister of Finance, who did not run in this election, who was reportedly asked to play some sort of caretaker and oversight role until the next government was sworn in.
How Government Work Continues During a Provincial Election in B.C.
Having been a direct B.C. government employee during previous elections, what generally happens after an election call, and prior to Elections BC confirming the final votes, is that the "wheels of government," and the day-to-day business of running the existing Ministries under the previous Parliament, continues to be managed by the bureaucracy. This is primarily Deputy Ministers, and other executive level bureaucrats in each ministry.
In the 2020 Election, there appears to have been a change to the way things usually function during an election, and prior to the swearing in of the new MLA's and party which will form a minority, or majority government in the next Parliament. In this case, this will be the 42nd Parliament. The changes that have occurred in this election will be outlined below.
Elections Act and the Constitution Act of B.C.
There are two key pieces of legislation in B.C. which govern the rule of law with respect to elections, Parliament and the Legislature -- the Elections Act of B.C. and the Constitution Act of B.C. I will outline core elements of both which are important to understanding, and contextualizing the current actions of the B.C. government, and particularly John Horgan and Adrian Dix.
Constitution Act of B.C.
This Act articulates, defines, and gives definition to Parliament and the Legislature in B.C. It defines who is legally considered to be Members of the Legislature, what is an Executive Council, and how these individuals become members through election.
Executive
Council
9 (1)The Executive Council is
composed of the persons the Lieutenant Governor appoints, including the Premier
of British Columbia, who is president of the Executive Council.
(2)The Lieutenant Governor in
Council must from among those persons appointed under subsection (1) designate
(a)those officials with
portfolio and must designate the portfolio for each official, and
(b)those officials without
portfolio.
17There must be in British
Columbia a Legislative Assembly constituted as provided by this Act, and the Lieutenant
Governor has the power, by and with the advice and consent of the Legislative
Assembly, to make laws in and for British Columbia in all cases, subject to
the Constitution Act,
1867, and to the order of Her late Majesty in Council.
Members represent electoral
districts
18 (1)For returning members of the
Legislative Assembly, there are to be the number of electoral districts
established by the Electoral Districts Act, with the names, boundaries
and areas determined in the manner provided for by the Electoral Boundaries Commission Act.
(2)The Legislative Assembly
consists of the members elected in the manner provided for by the Election Act.
(3)A member represents the
electoral district for which the member was elected.
General
elections
23(1)The Lieutenant Governor may,
by proclamation in Her Majesty's name, prorogue or dissolve the Legislative
Assembly when the Lieutenant Governor sees fit.
(2)Subject to subsection (1), a
general voting day must occur on the third Saturday in October in the fourth
calendar year following the general voting day for the most recently held
general election.
Oath of
allegiance
24 (1) A member of the Legislative Assembly must not
vote or sit until he or she has taken and subscribed the following oath before
the Lieutenant Governor, or some other person authorized by the Lieutenant Governor to
administer the oath:
"I,
A.B., swear that I will be faithful and bear true allegiance to Her Majesty
Queen Elizabeth II [or her successor], her heirs and successors, according to
law. So help me God."
Conditions that must be met to be appointed as a Member of Executive Council and a Minister of the Crown in B.C.
This Act clearly establishes that in order to be considered a member of the Legislature, Executive Council and appointed as a Minister in a current Parliament several conditions must be met:
1. A general election took place in B.C. during a particular time frame -- from dissolution of Parliament to a specific date for voting and the polls being closed.
2. Writs of election must be returned by Elections BC. This ends the election period.
3. Final vote count results are announced by Elections BC. The successful candidates, by vote, are also confirmed to have been elected in a specific electoral district.
4. An individual must swear an Oath of allegiance to the Crown (represented by the Lieutenant Governor) prior to sitting as a Member of the Legislature (MLA).
5. The Lieutenant Governor must appoint and designate the Premier, who becomes President of the Executive Council and Cabinet.
6. The Lieutenant Governor must appoint, designate, and assign MLA's to Executive Council portfolios (Ministries). They become Ministers of the Crown upon this official appointment.
Elections BC and the October 24th Election for the 42nd Parliament in B.C.
Elections BC is the statutory agency in BC that is responsible for:
conducting provincial elections;
counting ballots;
declaring final counts; and
confirming the candidates who were elected by winning the most votes in their electoral districts in our "First Past the Post" (FPTP) electoral system.
As noted above, these confirmed candidates will become Members of the Legislature (MLA's) and will form the next Parliament once they are sworn in by the Lieutenant Governor. They are required to swear an Oath of allegiance, pursuant to the Constitution Act prior to becoming Parliamentarians.
The MLA's elected and sworn in after winning their electoral ridings in the 2020 provincial election will form the 42nd Parliament in B.C. They will be members of the B.C. Legislature for the next four years.
The 2020 provincial election broke records for having one of the lowest voter turnouts in B.C. history. Approximately only 52.4% of registered voters showed up to cast ballots. This was the lowest electoral participation rate since 1928.
The people of B.C. and democracy were the losers in this "pandemic election." This will become quite clear as the BCNDP comes together to form the next government -- as a majority this time.
This Act articulates how elections take place in B.C. Key aspects of this legislation include the following:
Order for a
general election
24 (1)For a general election to be held, the Lieutenant Governor in
Council must issue an order under this section that
(a)directs the chief electoral
officer to issue writs of election for all electoral districts,
(b)sets the date of issue for
the writs of election, which must be the same for all writs,
(c)specifies the general voting
day for the election in accordance with section 27 of this Act and section
23 of the Constitution Act, and
(d)directs that the writs of
election be returned in accordance with this Act.
Election
called when writ of election issued
26 (1)On receiving an order of the Lieutenant Governor in Council under
section 24 or 25, the chief electoral officer must
(a)issue the writ or writs of
election in accordance with the order,
(b)transmit each writ to the
district electoral officer to whom it is addressed, and
(c)arrange for the writ or
writs to be published in the Gazette.
(2)A writ of election must be substantially in
the form of Form 1 as set out in the Schedule to this Act and must include the
following:
(a)the
dates for the start and end of the nomination period for nominations under
section 56;
(b)the
date of general voting day for the election;
(c)the day
for the return of the writ, being the date on or before which the district
electoral officer is to certify to the chief electoral officer the name of the
individual elected as member of the Legislative Assembly.
(3)For the
purposes of this Act, an election is called when the writ for the election is
issued in accordance with the applicable order of the Lieutenant Governor in
Council under section 24 or 25.
The Elections BC website states the following on its page, Preliminary Voting Results:
"Final voting results will not be available until after the conclusion of final count. The timing of final count will be announced as soon as possible following the completion of initial count."
They also state the following:
During all voting opportunities, there were also an estimated 85,000 certification envelopes containing absentee ballots cast across the province.
As of 8:00pm October 24, 2020 an estimated 525,000 vote-by-mail voting packages have been received. This does not include any vote-by-mail packages that have been dropped off at district electoral offices or voting places.
Absentee and vote-by-mail ballots are counted at final count.
During preparation for final count, district electoral officers will confirm voting results and certification envelope counts from absentee and vote-by-mail voting that was reported during initial count.
Adjustments may be made to accurately reflect election night results, and the screening of certification envelopes.
Results will not be finalized until final count is completed.
Update from Elections BC About Final Ballot Counting
On November 8th, 2020, Elections BC announced the final ballot count in the October 24th election.The final voting results are found at the link below for each riding in B.C. You can view the number of votes each candidate received in each of the constituencies in the province.
This is where things get murky. My analysis is that -- according to the Constitution Act, there is currently no government that is legally in charge in B.C. It remains the bureaucracy that are running day-to-day operations in B.C. As noted above, Carole James is also playing some unclear role over this last couple of months since the writ of election was dropped, and the B.C. Legislature was dissolved.
Elections BC provides a helpful page, "Key Election Dates," which outlines a timeline for the 42nd election.
They identified Monday, November 16 to Tuesday, November 17th, 2020 as "Return Day" stating the following explanation for this:
"Writs of election are returned to the Chief Electoral Officer, ending the election period. For most electoral districts, the writs of election will be returned on November 16 or 17, depending on when they finished final count. The writ in West Vancouver-Sea to Sky will be returned following the conclusion of a judicial recount in that electoral district."
John Horgan and Adrian Dix Representing Themselves As MLA's, Members of the Executive Council, and Premier and Cabinet Minister
Prior to the final ballot votes being completed, the writs of election being returned, and successful candidates in each riding being announced and confirmed by Elections BC, John Horgan, and Adrian Dix, have both been publicly identifying themselves, respectively as "Premier," and "Minister of Health."
These claims were also advanced by several members of the B.C. media, who repeatedly referred to them in these official roles on social media, and in various media outlets in B.C.
Mr. Dix has been involved in numerous public updates and interviews about COVID-19, representing himself to the people of B.C. as the Minister of Health during the time period when ballots were still being counted, and before the election results were finalized, and confirmed by Elections BC.
Mr. Dix has refused to respond to my public questions about why he was presenting himself in this way during the period of time when Parliament is currently dissolved, the election was still in progress, and prior to him being sworn in as a MLA in the 42nd Parliament. I attempted to email him as well, and did not receive a reply from him, or any constituency assistants, because this office no longer exists.
Mr. Horgan has also refused to answer my public questions to him about why he has been calling himself Premier prior to the final ballot count and announcement confirming the final ballot count and election results from Election BC. Mr. Horgan has been heavily involved in public relations (PR) activities on social media, through various media outlets, and representing himself as "Premier Horgan" to the public in these forums.
Mr. Horgan also sent out social media posts announcing his re-election, and received many public congratulatory messages before the election was officially concluded.
The B.C. government has not provided any announcements about Mr. Horgan, or Mr. Dix being re-elected, being sworn in by the Lieutenant Governor, or being assigned their respective official roles as Premier, and Minister of Health.
However, on October 26th, 2020, two days after voting was finished the Premier's Office, provided a written statement from "Premier John Horgan," acknowledging Andrew Wilkinson's resignation as Opposition leader." Numerous other media releases have been released under the name of "Premier John Horgan" from the Premier's Office.
Writs of Election Have Not Been Returned Yet in B.C.
In a CBC article dated, November 9th, 2020, Mr. Horgan is referred to as Premier. The following statements were attributed to him in this story:
"Horgan focused on issues related to the pandemic during the conference, but also confirmed he spoke with Lt.-Gov Janet Austin on Sunday at which point she asked him to form government — an exchange officially kick-starting the NDP's second term.
The premier said he hopes to announce his new cabinet picks in the weeks ahead with the goal of bringing the legislature back before Christmas, though the rising number of COVID-19 cases is hampering the ability to bring politicians together to swear them in as MLAs and, for some, as new cabinet members."
In a media article, dated November 13th, 2020, Richard Zussman of Global Media, speculated on who would be appointed to the new BCNDP Cabinet. Key details outlined in this article included the following:
"B.C. Premier John Horgan has secured his majority government and now he is building his cabinet.
The expectation is a cabinet will be announced before the end of November.
The positions that have been left open are finance, jobs, transportation, social development, mental health and addictions, Indigenous relations and forests, lands and natural resources. [These were the portfolios vacated from the seven Cabinet ministers who did not seek election again].
Horgan also needs to decide whether he wants to add positions to his cabinet. The current cabinet has 23 people, but with a larger caucus and an intense focus on COVID-19, there could be a few more positions added.
The government is folding child care into the minister of Education...
One of the things the premier could be looking at is putting a minister in charge of COVID-19 recovery. The position could merge together responsibilities from numerous ministries in order to provide a unified voice communicating decisions made about the pandemic response."
Legal Action Against John Horgan for Calling an Election
In their complaint, they alleged that, by calling the election prior to the date outlined by law, Premier Horgan violated the Constitution Act. They were not seeking to stop the 42nd election, but they are seeking a declaration and an order that Premier John Horgan's actions violated the fixed election dates articulated in the Act.
A CBC article quotes the
complainants in this legal action:
Duff Conacher, Democracy
Watch, stated: "By calling a snap election during a pandemic
instead of waiting for the fixed election date a year from now, Premier Horgan
acted like an old-school power-crazed politician, not a new democrat committed
to fair and democratic elections.”
Integrity B.C. founder
Wayne Crookes says "Horgan's snap election call was self-interested,
hypocritical and unfair.
It violates the fixed election date measures in B.C.'s constitution that the NDP has publicly supported, and the written agreement that the NDP had with the Green Party, and the good democratic tradition of fixed elections every four years that has developed through the past four B.C. elections," he said.
In speaking to this legal action, the following details were quoted in the Times Colonist:
“A spokesman for John Horgan said a statement would be coming Monday
afternoon but it had not been received by deadline. He said in an email the
Constitution Act “is pretty clear on the issue,” including the section 23(1)
which says the Lieutenant-governor may dissolve the Legislature when she “sees
fit.”
Various candidates in the 42nd B.C.
election have publicly confirmed the following information via social media posts:
1. The BC Legislature remains
dissolved.
2. There are currently no Members of
the Legislature (MLA's).
3. Successful candidates (by voting
results from Elections BC) have not yet been sworn in as MLA's by the
Lieutenant Governor.
4. That the final writs of election
are expected shortly, perhaps today, November 17th.
5. That they have not yet been
informed when they will be sworn in as MLA's to form the 42nd Parliament and
represent voters in the B.C. Legislature.
This article may not have cleared up the murky nature of what has happened during this 42nd B.C. election. It also has not confirmed who is really in charge of the B.C. government from a political standpoint. However, this article has
provided an overview and details regarding election and constitutional
laws in B.C governing elections and parliamentary matters to educate and inform interested voters and members of the public.
I have also presented information regarding Mr. Horgan and Mr. Dix
as they continue to present themselves as representatives of the Executive
Council and Cabinet in B.C. via public relations and communications activities on social media and through various media outlets in the province. I suspect there will be more to write about all of this, and many other topics related to governance and leadership in B.C., in the days to come.
