Legislating Totalitarianism in BC

In what follows we will look at three Acts: The Emergency and Disaster Management Act, the Health Professions and Occupations Act, and the Legal Professions Act. I’m speaking as a layperson or non-expert about legislation that’s been pushed through in the past two years by British Columbia’s provincial government. The material presented here is information that I’ve done my best to synthesize, from discussions, and presentations, and work conducted together with retired lawyer and international human rights law expert, Gail Davidson, and practicing lawyer Paul Jaffe, among others.

Now, straightaway, one might think that associating this legislation with totalitarianism is hyperbole. But, unfortunately, it’s not… there’s no gratuitous exaggeration. And at the end of this material, there will be a short section outlining the parallels between the legislation discussed here and the governmental system we term totalitarianism.

These laws, in these three bills that have now passed into act, have the effect of reducing accountability and transparency in the lawmaking process, in the decision-making process, and in the enforcement of whatever state actions are being called for. They enable government and administrative authorities to ignore existing laws. They enable government and administrative authorities to exercise unlimited authority. And they enable them to ensure that no individual or group can challenge that authority.

In other words, these laws effectively eliminate oversight, and they bypass constitutional law. And it is inside constitutional law that that our Charter protections are enshrined. So, the legislation bypasses Charter protections of rights and freedoms and essentially replaces democratic governance and established, democratic lawmaking procedure with authoritarian rule.

What these new laws are doing, and this is just the view from the ground… They’re restricting or extinguishing rights. They’re imposing severe penalties for noncompliance and dissent. And anyone who’s looked at the Health Professions and Occupations Act already knows this.

The fines are extraordinary for physicians or health care workers, or lawyers who step out of line. The legislation is granting unelected administrators or political appointees the power to make laws free from oversight by the public, free from oversight by members of the Legislative Assembly, and free from oversight by the judiciary. All of this is really fantastical, but it is happening.

And these acts are granting these powers to appointees who lack independence. They’re not independent from the state. They lack, in many cases, competence. Competence is simply not part of the job description. And they’re unaccountable—the way the legislation is written up, these appointees cannot be held to account if and when they engage in serious overreach that infringes rights. Also, within the statutes themselves, these Acts eliminate the established requirements of legitimate democratic lawmaking. So, incomprehensible and disastrous as all this sounds, that’s the view from ground-level of what’s been happening in the last two years with law-making in British Columbia, Canada.

The bigger picture is these laws are undermining what we call rule of law and rule of law democracy. And for many of you what I’m referring to will be very straightforward and you’ll be familiar with this vocabulary. But for many of us this is unfamiliar vocabulary. So, I think it’s important to clarify terms. According to the UN, “rule of law” is a principle of governance, in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.

I draw attention to that last requirement, that laws must be “independently adjudicated” because the Legal Professions Act removes the independence of our lawyers. And when lawyers lose their independence from the state, there’s no possibility to achieve rule of law. And there’s many other problems that have come up, in the past few years—particularly in relation to policy and mandates during the declared pandemic—with the undermining of the independence of our judiciary, and we’ll come to those in due time. But first, we need to finish defining Rule of Law. So, consistent with international human rights norms and standards, rule of law requires, as well as the above, measures to ensure adherence to the principles of supremacy of law, equality before the law. Accountability to the law. And fairness in the application of the law. It also requires separation of state powers and that, in itself, can be confusing. In Canada’s parliamentary democracy we have the legislative and the executive and the judiciary, three branches of government, and they they can’t blend together. The judiciary really needs to be independent because it needs to be able to review the decisions, review the lawmaking, review the execution of the laws, in order to offer remedy when there’s overreach. There needs to be fairness in the maintenance of justice and that fairness depends upon the independence of our judges.

So for rule of law, there needs to be fairness in the application of the law, separation of powers, participation in decision making, legal certainty and avoidance of arbitrariness, and then needs to be procedural and legal transparency. In short, the rule of law is the opposite of rule by law. It’s not just there’s a law and I have to obey it. That’s rule by law. That’s despotism. Rule of law is the principle fundamental to democracy, according to which the law applies equally to all individuals and government alike. And in Canada, that’s what ensures the uniform, predictable enforcement of our Charter protected rights and freedoms. And the guarantor of the safeguard of our rule of law system is the judiciary—it’s our judges.

In order to safeguard the rule of law, the judiciary must remain independent from the other two branches of government, which are the legislative and executive branches. And we’ll we’ll get to that presently.

One of the interesting features of these acts is that they strip away what’s called the necessity of legitimate purpose. This is a fundamental principle in international human rights law. Basically, interference with human rights is justified only when it’s essential to achieve a legitimate aim, a legitimate purpose, and only when less intrusive measures have been properly considered and determined to be inadequate.

Immediately, one thing that might come to mind is, the stated purpose of protecting the global public from Covid 19, which then led to the mandating of experimental genetic vaccines, after ruling out such alternatives as hydroxychloroquine and ivermectin, and vitamin D. Naturally, we might want to argue against the validity of the purpose, and against the validity of the interference measures, and we might want to argue that alternative measures were not properly considered.

In the parliamentary democracy of Canada, people have the right—it’s guaranteed by our Charter of Rights and Freedoms—we have the right to challenge the legality of laws, and to challenge governmental policies and decisions. So, the requirement of legitimate statutory purpose, this is really important. It’s really important because if you want to review actions taken by the state, if you want remedy for rights violations, then—in a court of law—you have to look at what the law was designed to do. And if that law is doing something that it wasn’t designed to do, then you can say, look, it’s being used in an arbitrary manner, and this constitutes government overreach. And then, if the law is functioning as it should, if it is functioning democratically, then the overreach, the infringement will be corrected, and there will be legal remedy. But if a law is passed with no clear purpose built into the statute—if there is no clear purpose written into the law—then there’s no way to say that the law isn’t doing what it was intended for.

If there is no clear purpose written into the law and no way to say that the law isn’t doing what it was intended for, then this means there’s no way to challenge rights infringements related to the enactment of that law. And this is one of the very significant and frightening and unjust features of these three acts: that they strip away the necessity of legitimate purpose. And it’s a domino effect when you do this, if you don’t have a legitimate purpose written into a statute, there’s no way to review that law and no way to stop it from being used arbitrarily and in ways that violate people’s rights and freedoms. This simply eliminates the possibility of oversight.

So, now we come to our first Act, the Emergency and Disaster Management Act. In what follows, I’m going to talk about ballooning powers of the administrative state. But I don’t want to give the impression that I’m not actually talking about the creation of an authoritarian regime. I don’t want to give the impression that I’m just talking about the necessity of developing our administrative state to respond to the times. That’s not what we’re talking about.

In discussing the Emergency and Disaster Management Act, I am going to try and do my best to bring together some of Vancouver lawyer Paul Jaffe’s insights and experience working in the courts, in challenges against people like Doctor Bonnie Henry. So the Emergency and Disaster Management Act… According to Paul Jaffe, this Act is new-creating the administrative state as a third order of government. And it’s creating this third order of government with paramount legislative powers and lawmaking authority. And we’ll get to what paramount legislative powers, what that entails. And this is having the effect of displacing constitutional law and effectively eliminating Charter protections of rights and freedoms that are entrenched within our Constitution Act.

So, what does it mean to create a third order of government? Well, we have two constitutional orders of government. They’re federal and provincial. We all know them. And we have, three branches of government. We’ve got the legislative, the executive and the judiciary. But we also have the administrative state. And the administrative state generally extends the executive branch of government.

Without an administrative state, we wouldn’t be able to get anything done—it’s a necessity. The problem here is that the actions of appointed administrators within the administrative state are being given precedence over the constitutionally protected rights of the people—and that’s not the way things are supposed to work in a democracy. What Paul Jaffe has noticed in trying to bring challenges against people like Bonnie Henry, who is working within the administrative state as a public health officer—what he’s noticed is that administrative law principles are canceling out Charter protections, it’s being accorded the power to cancel out constitutional law. In other words, the administrative state is being given paramount legislative power.

To explain how this is happening, we have to start by explaining the doctrine of paramount legislative power. Let’s say we’ve got a conflict between federal and provincial laws. When that happens, federal law is paramount. And so, the federal law prevails. The provincial law in that case is rendered inoperative. It ceases to operate. This doesn’t mean that it disappears. It’s still valid, but it’s overridden by the greater the paramount power of the federal law.

What Paul Jaffe has noted is that, In court cases brought against administrators who appear to have engaged in overreach and infringed rights and freedoms that are protected by our charter… What he’s noticed is that administrative law is being used to render the constitutional law inoperative. In such instances, the doctrine of paramountcy, or the doctrine of paramount legislative power has shifted from the context of federal law trumping provincial law, to the context of administrative law trumping constitutional Charter protections and that’s a very concerning development.

So administrative law principles are being used to bypass the Charter and this is why litigation has failed. This is why court cases have failed even when there’s been clear breaches of constitutional law. So, what does that mean again? What do we mean when we say breaches of constitutional law? We’re kind of at sea as laypeople when we’re dealing with legal language. As a quick refresher, we can look back at the declared pandemic. What rights were restricted or suspended by the vaccine mandates? Well, there were rights to education. There were rights to freedom of expression. There were rights to freedom of thought, conscience and religion. There was the right to movement that was suspended, and the right to work and earn a living by work freely chosen. Also restricted was our right to take part in the conduct of public affairs and our right to liberty and security of the person, our right to health, our right to informed consent to medical treatment, our right to freedom from coercion to accept medical treatment not voluntarily chosen, and our right to freedom from nonconsensual medical or scientific experimentation.

These are very important and protected rights. So, it’s quite impressive that the government has found ways to suspend these rights and then not to allow effective challenge  in the courts.

So one effect of the use of administrative law principles in the declared pandemic, is that it has insulated administrators like Bonnie Henry from liability—no matter how harmful her policies. Now, it’s true you could have had an administrator who imposed policies that were entirely salutary…. Policies that just had a good effect… Well that does not appear to have been the case during the declared pandemic and the administrators of the harmful policies we say imposed have been insulated and have not had to face any repercussions.

As an example, Bonnie Henry was the public health officer in BC throughout the declared pandemic, and she had pretty much unfettered discretion as a delegated authority under the Public Health Act. What kinds of things did she do that involved clear, obvious breaches of constitutional law? Well, she decided to close down the churches, and these churches remained closed even when Walmart, and pubs, and gyms were open for business.

From the perspective of a lawyer making a constitutional challenge, to close churches in this way appears to be a clear example of the use of powers under the Public Health Act for an ideological purpose. Prior to the declared pandemic, lawyers in B.C. would have been able to challenge this type of overreach, and they would have been able to challenge it successfully, as it clearly involves stripping British Columbians of their rights of freedom of religion and peaceful assembly.

Now these are specifically guaranteed constitutional rights. How then, how does this happen? How does it happen that Bonnie Henry can close the churches? And this being such a clear violation of British Columbians’ rights, how can it then be allowed to go unaddressed, uncorrected? Well, this failure of justice has something to do with judicial review.

In judicial review, you’ve got judges who review decisions, who review actions taken by the state, and these judges determine whether or not these actions were lawful, whether or not these actions were required, whether or not it’s reasonable that they occurred.

Administrative law principles have been applied to protect the decisions of delegated authorities, within the judicial review process. And the result is that lawyers have not been permitted to bring evidence to court to question the expertise of these authorities because the scope of evidence admissible for a judicial review or challenge to an administrative authority is much narrower than the scope of evidence admissible for judicial review of actions taken by elected government representatives. The scope of evidence admissible for a judicial review or challenge to an administrative authority is confined to something called the record of the proceeding. But amazingly, and this is where the administrative law principles come in, the record of proceeding is controlled by the administrative authority whose decision is at issue. So, what does this mean? This means that, in a case brought against Bonnie Henry, Bonnie Henry decides what evidence can be presented in court by those who’ve brought forward the case against her.

As Paul Jaffe has related, the Justice Center for Constitutional Freedom has brought expert witnesses of the highest caliber whose opinions have then been excluded because of this particular administrative law principle. In the simplest terms, if Bonnie Henry didn’t consider these opinions—these expert opinions in making her decision—then they’re not admissible for the purpose of challenging her. It doesn’t make sense to any of us, but this is determining how things are going in our courts. So, throughout the declared pandemic, access to remedies through the court, access to remedies to determine rights and prevent violations was effectively denied or inadequate and this continues to be the case now.

To make matters worse, this effective denial of protections against and remedies for rights violations is now being written into new laws through the strategic use of administrative law principles. It’s an interesting game and it’s being successfully played.

Part of what is binding or impeding justice in Canada’s courts, in terms of seeking remedies for rights violations committed by the state throughout the declared pandemic, is that the courts are being obliged to defer to the expertise of administrative decision-makers. This goes back to the three branches of government. In Canada, you’ve got the legislative, and the executive branches of government and then you have the judiciary. An appointed (meaning unelected) administrator like Bonnie Henry occupies an administrative position that extends the reach or power of the executive branch of our government. The court’s role, as guardian of rule of law, within our parliamentary democracy, involves overseeing the executive branch.

Perhaps the single most important role of the judiciary is to make sure that both the executive and the legislative branches of government don’t engage in overreach that violates people’s rights and/or freedoms. In order to fulfill that role and protect rule of law in our parliamentary democracy, the judiciary has to remain independent. What has happened during the declared pandemic, however, is that our judges have been counseled to defer to the authority of administrative institutions like the Public Health Agency of Canada.

The Canadian judiciary has been counseled not to question the determinations or decisions of the public health institutions. But that is exactly their responsibility. It is precisely our judges who have the responsibility to question, to review the determinations, decisions, and actions of institutions that wield powers on behalf of the legislative and executive branches of government.

But how is it that our courts have been so successfully undermined? How is it that the Canadian judiciary has been so successfully persuaded to give up its independence? Well,, there was a kind of judicial action committee formed at both the federal and provincial level, and it has done a very effective job of undermining the independence of our courts. Its official name was the Action Committee on Court Proceedings During COVID-19. The current premier of BC, David Eby, was involved in this judicial action committee. In fact, he was a member of both the Federal committee and the provincial committee in BC.

Now the Action Committee on Court Proceedings During COVID-19 has wielded considerable influence in the courts across Canada. And one of the main things it has done is to make sure that judges would defer to the expertise of the administrative decision-makers, and this means deferring to the authority the Public Health Agency of Canada and other similar Public Health institutions. So, if that’s where the courts begin from, it becomes very, very difficult indeed for a lawyer to challenge what a public health officer has done. If the starting point for the court is to defer to the expertise of the person who is being challenged… well, that doesn’t make any sense. What we’re talking about here is a judicial action committee which appears to have been created in order to preemptively defend government overreach.

Our government has found that it can expand its powers and defend overreach by putting powers into the hands of delegated authorities and then making use of administrative law principles in the courts, and further counselling the courts to defer to authority and expertise within the administrative state, all to prevent effective challenges seeking remedy for really unconscionable rights violations enacted by the state.

So what does this mean? This means that Canada’s judiciary is failing to safeguard rule of law, democracy. As a result, not only is the process of judicial review being undermined, but we have the courts taking what’s called “judicial notice” of disputed facts. The misuse of judicial notice by Canadian courts is a very significant problem.

Once again, we’ve got to clarify the meaning of this important legal term, “judicial notice.” There may be certain facts that are at issue in a court case. But it is possible for a judge to choose not to hear evidence regarding these facts if they are so clearly and obviously established that argument and the presenting of evidence is unnecessary. In relation to restrictive policies and mandates throughout the declared pandemic there are a great many disputed facts that have come before Canadian judges. But in a great many instances, Canadian judges have refused to hear evidence from expert witnesses when this evidence has been brought forward to contest information provided by the public health agency of Canada or opinions expressed by public health officers. A glaring example of this deference is the Canadian court’s taking judicial notice of facts relating to both the actual threat posed by COVID-19 and the safety and efficacy of the mRNA COVID-19 genetic vaccines.

What then, exactly, is judicial notice? Well, it’s an exception to the hearsay rule. Courts give priority to evidence provided by witnesses who have direct knowledge of the issues in question. This privileged evidence is evidence that can be heard and then cross-examined. Hearsay evidence comprises reported statements that have been made out of court and that can’t be subjected to cross-examination. So, hearsay evidence is generally excluded on the grounds that it’s unproven evidence, and its admission would threaten to undermine the integrity of the court’s legal fact-finding process.

Judicial notice is then an exception to the hearsay rule. An example of hearsay evidence admitted by Canadian judges via judicial notice is evidence provided by anonymously authored, advisories with no cited substantiating references, upon the website of the Public Health Agency of Canada. Traditionally, Canadian courts have taken judicial notice of facts only when they are so uncontroversial or so beyond reasonable dispute that no proof is required. When judicial notice of facts is taken, this means that the facts in question are no longer arguable.

When facts are contested, however, it’s essential that they be determined through established courtroom procedure based upon evidence that is tested through cross-examination. In keeping with rule of law principles proper to liberal democracy. We don’t allow one party to simply assert its version of facts over another party. That’s not the way justice is achieved. And yet that is exactly what has been happening and continues to happen in Canadian courts.

So that’s all pretty tricky. But now, is there a rabbit in this hat? What is the big trick? Ultimately, I think the big trick at play here is the investiture of the administrative state with paramount power.  What we’re seeing with the improper creation and passage of legislation in BC and what we are seeing in the undermining of rule of law democracy and the integrity and independence of the Canadian judiciary is a sort of soft transition to totalitarianism.

In conquering a country, you could level the cities. You could bombard it and level the cities. But very often conquerors want to take possession of their conquered cities. They want the cities to have an existing and functioning infrastructure. There’s no profit, or less profit, if the conqueror has to rebuild the entire country. So, there’s something similar at work here. If antidemocratic forces want to transition a country from a democratic to a totalitarian state, those parties may not want to bring in an army. They may want the infrastructure to stay the same. They may want people to continue to go to work, to continue buying things on Amazon, watching Netflix. They may want business to continue as usual. So, the shift from democracy to totalitarianism has to be covert. First, you balloon the powers of the administrative state alongside those of the federal and provincial orders of government, and then, all of a sudden, because the administrative state laws are already paramount, they already override the federal and provincial laws… Then, all of a sudden, you can completely ignore the constitutional law. Then you can ignore the constitutional law because you’ve accumulated enough of this other legislation that now the system can continue to function without it. And now, instead of having a constitutional monarchy and parliamentary democracy, you now have a totalitarian government. And the wonderful trick of it is that people haven’t seen it happen. They don’t know how it has happened. They may not even know it has happened. All they may know is that when they go to do something, they no longer have the right to do that thing. And when they go to access something, they no longer have that access. They may not see that the entire system has changed because the change has been effected through improperly passed legislation fashioned in secretive backroom meetings and procedures that have been largely sheltered from any public scrutiny.

BC’s Emergency and Disaster Management Act

assented to on November 8th, 2023,

209 sections, up from 28.

This is a large bit of legislation and, right away, if we look at the Act—and it’s available online—we can see that it’s doing many of the things that I’ve been discussing. Under this act, anything that the minister and his delegated authority wish to consider an emergency—that can trigger the exercise of frighteningly unlimited and unfettered emergency powers.

When you open the act online, there’s a vocabulary list at the beginning. We can start by looking at the definition it offers for “Emergency”. I won’t cite the entire definition, I’ll just cite selections to convey a sense of the sheer bizarrerie of this Act and the manner in which it has been prepared. Emergency, in this Act, refers to a state that “is the result of an event that has occurred or is ongoing, or appears imminent”, meaning that it appears like it might occur, and it is a state that  is caused by any number of incidents, including “a prescribed type of incident.” Well, that’s an interesting word, “prescribed.” It’s interesting because to prescribe means to lay down as a rule or guide, or to specify with authority. So, a prescribed event or “a prescribed type of incident,” as it says in the Act, is something that is set or ordered by a specific authority, a rule, something the minister or his authority decides. This incomprehensible vagary, is the type of incident that will trigger an emergency.

To begin with, such a definition is far too broad. It can basically include anything. Emergency, in this Act, also means “a state that is the result of the presence, suspected presence, or imminent spread of a transmissible disease.” You can see how subjective this criteria is! Additionally, an emergency can be the result of “a prescribed type of event,” or of “the presence, or suspected presence of prescribed circumstances”!!!

One might be tempted to laugh here, but none of this is actually funny—it’s very, very frightening language. When we read, throughout the Act, words and phrases like, “appears” or “suspected of”, these are all in the judgment of the minister or whatever delegated authorities to whom the minister delegates powers, and these judgments are unchallengeable. There’s no legal way to challenge the decision-maker exercising these emergency powers, and there’s no legal way to challenge the basis upon which the decision to exercise them has been made. This is a frightening situation. These are determinations that cannot be challenged. And they can be made within the pretty much entirely unfettered discretion of the minister or his delegates.

Now we’ve looked at what an emergency is according to this Act. And the definition of the term emergency is absurdly overbroad. But it gets worse. Powers in this act can be triggered by non-emergency emergencies. And these non-emergency emergencies are termed “critical incidents.” A “critical incident”, according to this Act, means an incident to which all of the following apply: It can be for “a prescribed purpose.” And the incident can be such “as does not include an emergency, in relation to which a declaration of a state of provincial emergency or a declaration of a state of local emergency has been made.” So emergency powers can be used to respond to a critical incident that is not an emergency. It is baffling, but it’s much more frightening than it is baffling.

Another interesting term in this Act is “specialized measure.” A specialized measure is defined as “a prescribed type of action.” Which means that it can be anything. And this anything-at-all “prescribed type of action” may be taken in relation to either “a critical incident or an emergency.” So, considering the definitions we’ve already looked at for the terms “emergency,” “critical incident,” and “specialized measures”, we can see that with this Act, a minister or delegate has the power to do very close to anything, for very close to any reason.

Now we’re going to look at several small portions of the act and the peculiarity of the language we find there. I’m sure that there is a much better and more thorough way to introduce the Act, but I believe we’ve made a good start by beginning to look at the language, because if I were just to tell someone what it’s doing, without quoting it, most of us just couldn’t believe it.

We can start by turning to the section titled, “Standards, Protocols and Procedures.” Here we read that the “provincial administrator” may do one or both of the following: “may establish standards, protocols and procedures” with respect to the taking of “specialized measures”—that we’ve already seen can involve almost anything. And so, the administrator doesn’t have to follow guidelines here. The administrator is being vested with the power to establish standards, and protocols, and procedures on the fly. And not only that, but the provincial administrator can require, can compel “by order, a person or a class of persons,” such as lawyers, we might hazard… the administrator can order such person or class of persons to comply “with one or more of the standards, protocols and procedures” that that the provincial administrator has the discretion to dream up and implement on the fly.

Turning to the section entitled, “Provincial Emergency Management Organization”, we read that the Minister must designate “as the provincial administrator a person appointed under the Public Service Act.” What is noteworthy here is that this administrator has powers every bit as unfettered as the minister. The provincial administrator may do a number of things listed in this section, but then additionally, the administrator can also exercise “additional prescribed powers,” whatever those are. The latitude for invention on the part of the minister and delegated administrator that we see in this Act, this type of latitude simply has no place in democratic legislation. Essentially, what is happening with all of this legislation—not just with the Emergency and Disaster Management Act, but with the Health Professions and Occupations Act, and the Legal Professions Act—is that the normal state of affairs, the status quo, is being turned into a constant state of emergency. And in this constant state of emergency, the democratic laws that we have depended upon in the past—the constitutional law in which our Charter rights protections are entrenched—can be suspended for almost any reason at almost any time.

Now, we’ll take a final glimpse at the section entitled “Directed Mitigation and Preparation Measures.” In this section we read that the Minister may make an order for a wide variety of purposes, and among these “to mitigate a specific hazard that presents a significant risk of giving rise to an emergency”, or that presents a “significant risk of becoming an emergency.” It’s important to note that emergency powers to make orders are being accorded here for situations that do not constitute emergencies. Orders potentially suspending civil liberties are being made here to pre-emptively mitigate the risk of situations developing that would be dire enough to require suspending civil liberties.

In this same section we read that the minister may, by order, require a regulated entity to provide any prescribed information, any information requested by the provincial administrator or lead minister. There is, in other words, no protection of privacy and confidentiality. It is almost as though this Act were designed to completely override any and all Charter rights protections. In the above, we’ve looked very briefly at only a few sections out of the 308 included in this monstrous Act. Yet even this brief examination conveys a clear sense of just how incredibly unfettered and potentially limitless are the powers that are being conferred by this Act upon the minister and the minister’s appointees.

The Health Professions and Occupations Act, and the Legal Professions Act

The Emergency and Disaster Management Act is not alone. There are two more dangerous laws that follow much the same pattern, and which have been introduced as bills and then passed (improperly) via the legislative assembly in the last few years here in BC. First, we have Bill 36, passed into Act as the Health Professions and Occupations Act, and second, we have Bill 21, passed as the Legal Professions Act. These frightening works of legislation were developed and passed in violation of the rule of law and established requirements of democratic lawmaking. And they both violate protected rights. So, what do they do? The H.P.O.A, or Health Professions and Occupations Act, destroys the ability of doctors and other healthcare professionals, to ensure patient rights—among which, the right to accept or refuse medical treatment or experimentation.

The Health Professions and Occupations Act also impairs doctors’ and other healthcare professionals in their duty to provide advice and treatment based on the needs and choices of individual patients, free from the threat of punishment and loss of license. What gets canceled by this Act, for all British Columbians, is our right and ability to access personalized and consent-based medicine.

The LPA, or Legal Professions Act, in its turn, destroys the independence of lawyers and the ability of lawyers to act on behalf of clients and causes free from interference by state or state appointed authorities. The LPA prevents the legal profession from fulfilling its essential democratic function, which is to provide legal representation to individuals free from state interference, and to act as an effective safeguard against unconstitutional laws, and against violation of rights, and against the abuse of power by state authorities. There is a very clear and concerning pattern to this legislation.

The Health Professions and Occupations Act and the Legal Professions Act are laws that are attacking democratic rights in key professions—medicine and law. These are two areas in which international human rights law and the laws observed in democracies are quite clear. People have the right to decide about their own bodies and medical treatment. People have the right to access independent, competent and impartial courts to decide issues of rights and criminality and to decide issues of overreach by the state.

Even if our rights in relation to legal representation are less familiar to most of us than our medical rights, we know that where necessary, in order to achieve justice, people must have access to legal representation, and that legal representation must be independent of the state. So, the HPOA, the Health Professions and Occupations Act and the Legal Professions Act, these Acts are getting rid of these rights, all of these rights, in one fell and foul swoop.

I mentioned above that both of these bills were passed into Act improperly. What does that mean? Well, we have established processes for democratic lawmaking. And within these established processes there are a number of requirements. The first is transparency. For instance, you need to be able to see what is being drafted. And medical societies and law societies asked to see these like this legislation as it was being prepared. And they were not allowed to. They saw it when it was tabled. It was kept secret until being tabled. The second is timely notice of the proposed changes. And that’s timely notice to the public and to Members of the Legislative Assembly. Third, access to the information is needed—public access to the information needed to assess and debate the necessity and the legitimacy of these proposed changes. Fourth, there has to be meaningful consultation, particularly with the parties likely to be most effected. In the case of the Health Professions and Occupations Act and the Legal Profession Act, obviously, health professionals and legal professionals needed to be consulted. Fifth, there needs to be full review and informed debate in the legislative assembly, and amendments made by elected representatives. Sixth, there needs to be consensus generally of the public and formally by vote of elected representatives.

Now this requirement for consent is both important and trickier than it seems. In a representative democracy, if those people that we voted for vote to pass a particular bill into Act, then this vote by representatives establishes public consensus approving the Act. But what if the vote happens before the legislation has been properly reviewed in the Legislative Assembly? What if the legislation hasn’t been read, if it hasn’t been officially read and debated in the Legislative Assembly? If a vote is taken and legislation is passed without being properly read and debated in the assembly, then this undermines the possibility of public consensus through the consensus of representatives. The public does not vote in representatives so that these individuals can pass laws without proper consideration—it is absolutely unacceptable and contrary to the principles of democratic law-making. And it gets still worse. The members of the governing NDP party seem to have voted in block. That is, they seem to have voted all together through instruction. This is speculation, but it is made credibly because the legislation simply wasn’t read. Only a third of Bill 36 was read and debated in the Legislative Assembly, and only 9% of Bill 21 was read and debated. Now, if most party members—all members in attendance—are voting in one direction without having first read the legislation, this does not give the appearance of a free vote.

At this point, readers and most particularly British Columbian readers may be wondering, “Well, why was there no proper consultation? Why no legitimate public purpose? Why was secrecy used to make debate by the public and those most affected impossible? Why did our NDP government prevent the necessary parliamentary review and debate? And why were NDP MLAs not allowed a free vote by their party? Why all of this impropriety?” And the obvious answer is, neither of the bills could have passed. Neither of these bills could have passed a complete, careful review by the public. Neither of them could have passed a complete and careful review by the doctors and lawyers impacted. And neither of these bills could have passed a complete and careful review by responsible elected members of our Legislative Assembly if they were allowed to vote freely.

So instead of a free vote following the responsible reading and debate of these bills according to established democratic law-making process, instead of this, the governing NDP party forced a vote on the HPOA after only a third of it was read. Only a third of its 645 sections were examined in assembly. This was possibly the largest package of legislation to come through the Legislative Assembly in BC and it wasn’t properly read, and it wasn’t properly debated. And then, perhaps wishing to demonstrate that the flaunting of proper democratic law-making process in the case of the HPOA had not been the result of accidental oversight or incompetence, the NDP forced a vote on the Legal Professions Act, when only 9% of its 317 sections had been reviewed.

Essential to democratic law-making is full, informed, transparent consultation during all stages of development with the public, with the people most affected, and with elected representatives. It didn’t happen. Instead, both bills were shrouded in secrecy until they were being tabled in the Legislative Assembly. And even then, the elected members of our Legislative Assembly were not given the opportunity to properly and carefully review them.

So, what we have in these instances of law-making is the clear flaunting of established democratic procedure. Both laws were developed and then passed without notice, without consultation, without disclosure, without the debate and consent required; they were passed without any of the things required of lawmaking in a democracy. Openly anti-democratic law-making is not a little thing. This is an enormous thing. It’s amazing that British Columbians are not out in the streets. But perhaps our civic apathy is something that has been long cultivated in B.C.

And if this wasn’t bad enough, and it’s hard to imagine law-making being worse… but both the Health Professions and Occupations Act and the Legal Professions Act authorize behind the scenes appointment of dozens of unelected, unaccountable, likely incompetent people to make—in secret—further appointments and further regulations even prior to the acts coming into force. Just like that, our rights and our established standards, they disappear.

So, what are some of the things that we can say are happening, or how do we describe the wrongs that are being perpetrated through this improper law-making? Well, these Acts abolish democratic governance for health care workers and lawyers. They impose authoritarian governance by dozens of unknown political appointees who lack independence, who lack competence, who lack accountability. They empower appointees to make or adopt laws without notice, without consultation, without consensus, without a public purpose and without compliance with existing laws. They allow the mandating of nonconsensual medical or experimental treatment for health care and legal workers as a condition of licensing. (So, If you thought that vaccine mandates had gone away with the end of the declared pandemic, think again. The mandating of medical treatment is written into the law now.) These Acts allow appointees access to confidential patient and client records without notice, without court order. They criminalize lawful advice or opinions. (So, the advice of your lawyer, the advice of your doctor, you go to them for help. It criminalizes that advice if it doesn’t line up with the advice and opinions sanctioned by the state or its appointees.) These acts impose severe penalties for noncompliance, even in the case of noncompliance with unlawful provisions. These Acts lack legitimate statutory purpose. They restrict or prohibit access to remedies to prevent rights violations and the enforcement of unlawful provisions. They increase costs, and they decrease public access to health care and to legal services of choice.

With the Health Professions and Occupations Act and the Legal Professions Act British Columbians have lost their right to both personalized consent-based medicine and to independent legal representation. The governing party in BC is legislating away our rights and democratic, legislative practice. Our democratic rules for lawmaking are being legislated right out of existence. The governing party in BC, together with assenting MLAs from other parties are authorizing not only unaccountable, unelected civil servants, but as part of these Acts they’re authorizing private contractors to make laws that are then going to be enforceable in BC. They’re authorizing a whole list of unaccountable people to adopt laws from other countries… to adopt standards, codes, rules, enacted in other jurisdictions or set by any body that may make codes, standards, and rules. The HPOA allows these to be adopted as law in B.C. without having to go through the Legislative Assembly, without having to go through proper and accepted democratic law-making process. And there’s very little to guide or limit this new caste of appointed lawmakers and law-adopters… very little to keep them from restricting or eliminating rights and freedoms. Indeed, if there is one real limit on these appointees, it is likely to be that those who are appointed will be restricted to people who have demonstrated their willingness to say yes… Powerful interests and their lobbyists have worked hard to get this type of legislation passed. Those who will be appointed to administer it will have to be willing to do whatever they’re being asked to do by the high-level players no longer willing to abide by democratic processes.

The Health Professions and Occupations Act was passed earlier than the Legal Professions Act. Perhaps at the drafting stage there was the idea that doctors would make an easier target than legal professionals. Maybe the idea was that fewer doctors were going to stand up and say, hey, you can’t strip our patients of their right to informed consent. Perhaps this seemed more likely than getting legal professionals to agree to foregoing their independence.

But the Health Professions and Occupations Act also appears to be coordinated with the International Health Regulations. That is, this is provincial legislation that appears designed to mirror and function in tandem with global initiatives from which it is designed to import and adopt standards, codes, rules. In this connection it ‘s worth noting that, to the extent that the HPOA mirrors the International Health Regulations which seem to have been designed to impose a global system of control over all aspects of health… Well, many of you may know of Professor Francis Boyle who recently passed. Professor Francis Boyle, was a US law professor, and he has called the amendments to the International Health Regulations and also to the pandemic treaty fatally dangerous. According to Professor Boyle, either one or both, if allowed to go unchecked, “would set up a worldwide medical police state under the control of the W.H.O. and the W.H.O. director, and then they will be able to issue orders that will go all the way down the pipe to your primary care physicians.” And that’s the nature of the concern here—that the Health Professions and Occupations Act seems to be designed to function in tandem with these terrifyingly anti-democratic global regulations.

If discussion of parallels between provincial legislation and global regulation seems abstract, the immediate, on-the-ground effects of the Health Professions and Occupations Act are very concrete. As already mentioned, the HPOA abolishes democratic governance of the health care colleges and imposes governance by unelected and unaccountable political appointees. It also creates offenses. That is, it gives appointees the power to create acts of misconduct and even criminal offenses. Through the HPOA, appointees can create these offenses in violation of principles of legality and predictability. And the prohibited acts referred to in the HPOA are not defined with sufficient specificity to be objectively determined in advance. This means that persons can’t know in advance when they are breaking the law and therefore, they can’t avoid breaking the law. Examples of such illegitimate offenses and acts of misconduct written into the HPOA are “providing false or misleading information to patients or the public.”  Many Canadians who watched Dr. Patrick Phillips’ disciplinary trial will remember that he was held to have brought discredit to his profession by providing information contrary to the information being disseminated by the public health authorities and this in spite of the fact that, as the disciplinary panel acknowledged, what he was maintaining was entirely true. Dr. Patrick Philips was still disciplined for having misled the public… but he did so not by reporting false information but, on the contrary, by failing to align his messaging with the advice provided by state administrators. And that disciplinary panel hammered away at Dr. Philips, with this idea that he’s guilty of conduct that has brought the medical practice into disrepute, regardless of the truth of his statements and regardless of their helpfulness.

The HPOA also authorizes appointees to make rules regarding informed consent, to make new rules overriding what we thought was essential from the Helsinki Declaration and the Nuremberg Code and from long-established, universally accepted medical ethics. The HPOA authorizes appointees to make rules regarding ethical standards. They can make rules regarding what health care services can be provided by who, to whom, and in what locations. They can mandate vaccination for transmissible disease as a condition of licensing and employment. So, if you are an individual whose profession is regulated by the Health Professions and Occupations Act, now you can be mandated to receive vaccines and you won’t be able to refuse. If you do refuse, there won’t be a conflict… You’ll simply go to renew your license online as you do every year, and the renewal process will require verification that you are vaccinated and when you can’t provide that verification, then just like that you will not be relicensed. And just like that, you will have lost your ability to work… you’ll have lost your livelihood.

Of course, this isn’t the only process through which health professionals can be delicensed. The HPOA authorizes appointees to suspend a license to practice without notice to the practitioner and before a complaint has been investigated or determined. Anyone can see that the power to arbitrarily suspend their licenses absolutely cripples physicians’ ability to do anything at all to follow their conscience when it’s at variance with what is being prescribed by the state. But enforcement doesn’t end there. HPOA appointees are accorded power to impose severe penalties for acts of misconduct that include temporary or permanent loss of license to practice and employment. And for the criminal offenses that these appointees have the power to create, fines can be levied—fines up to $500,000 a day for incorporated practitioners.

The HPOA authorizes “the minister, a board or a health occupation director” to establish all medical and ethical standards, along with standards governing eligibility to practice and accreditation. (s. 7 (1)).  And interestingly, it imposes a mandatory duty to report on fellow licensees. With the Health Professions and Occupations Act, as with the Legal Professions Act, a physician is no longer being regarded as a physician and the lawyer is no longer regarded as a lawyer. Instead, they are being defined as licensees. So, as licensees, they now have a mandatory duty to report other licensees who are believed to be not fit for practice or to present a significant risk of harm to the public. (s. 85).

Given the egregious overreach demonstrated at every step of this Act there is no question that serious judicial review is required. But the HPOA limits review by any court of decisions and orders made by appointees. We’ve already discussed the manner in which administrative law principles have been used to avoid proper judicial review of actions taken by our public health authorities. In this case, however, there will no longer be a need to use administrative law principles to avoid judicial oversight. The bypassing of the judiciary has been written into the statute itself. In short, the HPOA grants immunity from legal proceedings to the appointees it empowers. It prohibits legal proceedings for damages.

None of this is happening by accident. It’s not an anomaly. What we’re seeing is that laws are being weaponized. They’re no longer tools of democracy that ensure rights and restrict and remedy abuse of power by government. Instead, they have been reduced to instruments for imposing control. The HPOA has eliminated elected governance of the health professions by health professionals, it has eliminated both democratic lawmaking and obligations to comply with existing laws. It has replaced legitimate, democratically created laws with rules and laws made behind closed doors by unelected, unaccountable and, in many cases, unknown people or groups within and outside Canada.

The negative impact of the HPOA upon health professionals and the people who depend on them is plain to see. If we’re talking about a cost and benefit analysis, then for health professionals and the public it appears to be all cost. But there is benefit to this Act. The Health Professions and Occupations Act paves the way for BC to partner with Big Pharma and other entities unhampered by the regulatory irritants and roadblocks of democracy. The HPOA gives pharma and other non-state corporate actors access to the population of BC as a captive market with the aid of state powers and resources.

So where does this come from? Well, the HPOA appears to be part of the Agile Nations initiative developed over the past decade by the World Economic Forum to prepare for what Klaus Schwab and the World Economic Forum call the fourth Industrial revolution. Indeed, in his book entitled The fourth Industrial Revolution, Klaus Schwab expresses his conviction that “industry and government must collaborate closely to shape the global transformation.” And the transformation to which he is referring is the transformation necessary to allow global marketing of innovative products free from the costly delays caused by having to comply with domestic regulation and human rights laws. From the point of view of Dr. Abdulla Assiri, the Co-Chair of the Working Group on the International Health Regulations, civil liberties got in the way of total compliance during the pandemic. Well legislation like BC’s Health Professions and Occupations Act will make sure that that doesn’t happen again.

The Legal Professions Act

When state overreach infringes rights and freedoms in a democracy, people have the right to challenge the legality of laws, and governmental policies and decisions. To do this people require independent legal representation. The Legal Professions Act eliminates lawyers’ independence from the state, thereby destroying the ability of lawyers to act for clients and causes free from interference by state or state appointed authorities. This Act prevents the legal profession from fulfilling its essential democratic function as an effective safeguard against unconstitutional laws, against the abuse of power by state authorities, and against tyranny.

In a democratic society, you can’t be legally represented unless your lawyer is independent of the state, particularly as all criminal charges are a matter of the accused person against the state. If the lawyer is not independent, then you don’t have an advocate, you just have a state official who’s guiding you through the prosecution process. For lawyers to remain independent, they must have a governance system that is independent of the state. Otherwise, they don’t have their right and duty to act independently and confidentially to serve the legal instructions of individual clients, because they simply cannot properly serve clients while also having to submit to the state.

Prior to the passing of the Legal Professions Act, lawyers in BC have had a law society. It’s a democratic governance system made up of lawyers. Now, as a result of the Legal Professions Act, the elected governing body of the Law Society of BC will be replaced by a 17-member board that includes only five elected lawyers. Twelve out of the 17 members of the board will not be lawyers and will not be elected.

As this is the first time many people will have heard about the Legal Professions Act, they might wonder why, if this Act is so destructive, there wasn’t any opposition? In fact, however, even though we heard very little in our media, including from our public broadcaster, there were plenty of opposition groups calling for withdrawal of this legislation when it was tabled as Bill 21, prior to being passed as the Legal Professions Act. This bill was opposed by the Law Society of BC, the Canadian Federation of Law Societies, the Canadian Bar Association, the BC branch, the Trial Lawyers Association of B.C., the Federation of Asian Canadian Lawyers, South Asian Bar Association, the Alberta Civil Trial Lawyers Association, the Saskatchewan Tribal Trial Lawyers Association, and the local bar associations of Abbotsford and District, Cowichan Valley, Kamloops, South Cariboo, Surrey and Vancouver.

That’s a lot of opposition. Did any of us hear about it in the media? We certainly didn’t hear that the NDP government was taking any measures to pause its imposition of the Legal Professions Act. As part of this widespread and vociferous opposition, the Law Society of BC filed a lawsuit challenging the constitutionality of the Legal Professions Act. They applied for an order preventing the law from coming into force until the constitutional challenge had been determined. But this challenge was dismissed. The Law Society of BC was given leave to reapply once the transition process was completed. In dismissing the application to have implementation and enforcement of the law stayed until the constitutional challenge was heard and determined, the judge ruled that she was guided by the legal presumption that laws properly passed by elected representatives serve a public purpose, and that an injunction would stall the realization of that purpose. That’s all well and good, of course, if these laws were properly passed. But these laws were not properly passed—not by a long shot. BC’s lawyers were not allowed to see the legislation during the drafting process and there was no proper consultation. Then our elected representatives were denied the chance to review the provisions in this legislation when the government called a vote with only 9% of the sections reviewed.

The NDP government of BC has ignored all of these pleas first for consultation and now for withdrawal of this improperly passed and antidemocratic legislation. BC’s governing party has responded with chilling and unsubstantiated statements, citing the need to modernize and streamline existing laws and claims of the need to protect people from harm caused by health and legal professionals. And that’s another frightening aspect of both the Legal Professions Act and the Health Professions and Occupations Act: Both lawyers and physicians (as well as other healthcare professionals), the legal and medical professionals who are there to help the public, are being represented in these Acts as possible threats that need to be controlled.

And a final worrying and unacceptable factor in the development of these two laws, the HPOA and the LPA, is that they are both ostensibly based on reports, written by a UK national named Harry Cayton. He appears to have been paid 500,000, per report. They’re not extensive reports. And he’s not an expert. He’s not a legal expert. He’s not a medical expert. BC’s former Minister of Health, Adrian Dix, wrongly described Cayton as a world leading expert. It seems that Adrian Dix has also said that, in developing the HPOA, the consultation process was unprecedented. Well, this can only be true if he is interpreted as meaning that it was unprecedented in there not being any consultation process.

If Harry Cayton doesn’t have medical experience and he doesn’t have legal experience, what kind of experience does he have? Perhaps not surprisingly, Harry Cayton has worked for many organizations, including the W.H.O. and the World Economic Forum. So that’s where we are in BC—inundated with improperly developed and improperly passed anti-democratic legislation sponsored in one way or other by global organizations that wish to see a global transformation prioritizing deregulated corporate profits over the rights and freedoms of the people.

At the beginning of this discussion, I stated that these three Acts should be understood as totalitarian legislation. Why do I say that? Am I justified in saying that? In what follows I’ve drawn together some commonly accepted characteristics of totalitarianism. To ensure that I’m not making use of a controversial or contested definition, I’ve drawn the material from Britannica online, which calls itself an electronic reference service provided by the Encyclopaedia Britannica. Anybody can access it, there’s no paywall, this is a fully mainstream source. So, as it is commonly understood, under a totalitarian regime, “citizens are subject to the absolute authority of the state.” Totalitarianism is distinguished by its “supplanting political institutions with new ones and its sweeping away of legal, social and political traditions.” This sweeping away of existing traditions is invariably justified by the pursuit of “some special goal”—it could be industrialization, or conquest, or it could be combatting Covid or climate change, or Trump’s tariffs as with the new legislation in Bill 7 which has been tabled by David Eby. And, in one of these moments of crisis that totalitarianism constantly generates… in a moment like the declared pandemic, all resources are directed towards the attainment of that goal, regardless of the cost. And the particular obsession seized upon and marketed by the state in such moments of crisis “spawns an ideology.” And here we might think of the nudge program, we might thing of the panicked communal need to flatten the curve and to protect granny from the unvaccinated. And then, that ideology explains everything—even rights violations—in terms of the virtuous goal. And the resulting popular support permits the state the widest latitude of action of any form of government.

Clearly, when we consider these aspects of totalitarianism, we have come very, very close to this with the systematic infringement of rights and freedoms during the declared pandemic and now we appear to be legislating this exceptional emergency state of totalitarianism into permanence. As in the totalitarian state, any dissent is branded evil and internal political differences are not permitted. You’re not even allowed to review the legislation. Under totalitarian rule, traditional social institutions and organizations are discouraged and suppressed. All religious and social ties are supplanted by artificial ties to the state and its ideology. Of course, it’s very likely that our government is not as ideologically motivated as it often pretends… it’s very likely that ideology is simply being used to mask the fact that our government representatives are no longer serving the people who have elected them. They’re serving a very different set of taskmasters—taskmasters whose interests are represented by global entities like the W.H.O. and the WEF.

Often, as we read in the Brittanica, “totalitarian states and other autocracies attempt to borrow legitimacy by adopting the language of the constitutions of non autocratic regimes,” or by establishing similar institutions… parliaments or assemblies, elections and parties, courts and legal codes… [that resemble] the institutional structures of constitutional democracies.” And this goes back to what I was saying about how can an entire society by transitioned from democracy to totalitarianism? How can the transition be made most easily with the least damage to infrastructure so business can continue as normal?

And the answer appears to be by ballooning the powers attached to the administrative state while according to them paramount legislative power and then, at a certain point, the democratic government can simply hand over the controls of the administrative state to its new masters. And perhaps these will be the self-described stakeholders in the new stakeholder capitalist, global regime being dreamt up by Klaus Schwab and others at the WEF.

Continuing with the Brittanica’s totalitarianism entry, “the language of totalitarian constitutions is often couched in terms of the doctrines of popular rule or democracy.” Notably, throughout the Emergency and Disaster Management Act there is a lot of language relating to the UN Declaration on the Rights of Indigenous Peoples. There is a lot of lip service paid to UNDRIP, but without the Emergency Act appearing to help aboriginal peoples in any way. So, “the language of totalitarian constitutions is often couched in terms of the doctrines of popular rule or democracy… the language is similar but the difference is that in totalitarian regimes, neither the institutions nor the constitutional provisions act as a set of checks on the power of the single center.” And that’s because these institutions and constitutional provisions are “essentially facades for the exercise of power.” And that’s exactly what we’ve been talking about today—our legal system has been turned on its head and weaponized. Now, instead of protecting rights and freedoms, our laws are being used to eliminate them.