Special Edition - Bill 7: Eby Power Grab Partially Walked Back

Premier David Eby's partial retreat on the Economic Stabilization Tariff Response Act marks a significant moment in BC's response to US tariff threats. While the government has agreed to remove Part 4 of Bill 7—the section granting powers to amend legislation without parliamentary approval—legal expert Michael Mulligan reveals why serious concerns remain.

The bill still contains provisions allowing the government to unilaterally cancel contracts, change procurement practices, and impose taxes without legislative debate. Particularly troubling is language that prevents affected parties from seeking judicial review of government actions—a fundamental protection in democratic systems. "Protection against legal proceedings" suggests the government wants to shield itself from court challenges, raising serious questions about accountability.

Mulligan's analysis cuts to the heart of democratic governance: should we empower executives with unilateral authority, even during international disputes? He draws a striking parallel between the chaos of Trump's tariff decisions and the risks of BC's proposed response: "Left-wing populism is not a good response to right-wing populism." The comparison to Ontario Premier Doug Ford's hasty electricity tariff—quickly announced, then withdrawn—serves as a cautionary tale about reactive governance without deliberation.

The remaining sections of Bill 7 grant more extensive powers than were used during the COVID-19 pandemic, despite facing only economic threats rather than a public health emergency. As Mulligan notes, "We are not at war with the United States." Want to understand the delicate balance between government authority and democratic safeguards? Listen to this essential breakdown of how emergency powers can fundamentally reshape governance when we're not looking closely enough.

Follow this link for links to the legislation discussed.

Episode Transcript

Jill Bennett (00:00):
This is your track .
This is the Jill Bennett show on730 CKNW.
Earlier today we heard from BCPremier David Eby he was walking
back a portion of the NDP'sresponse bill.

(00:20):
This was a bill dealing withthe threat of tariffs from the
United States, but this bill didget a lot of backlash,
including from former premiers.
It's an extreme overreach.
It's serious.
Don't misunderstand me, butthere's no war.
So I thought it was anextraordinary grab of power that

(00:42):
didn't need to be done.
That was former Premier UjalDossange and again earlier today
David Eby announced that partof that bill would be pulled
back.

David Eby (00:52):
We'll be pulling part four of Bill 7 to ensure that
we get the balance right.
My commitment to BritishColumbians is I will continue to
ensure that we have the abilityto respond quickly.
But if there's a chance for usto retool this and ensure that
the safeguards are in place tomake people feel comfortable
that there's democratic andlegislative oversight of these

(01:13):
incredibly important provisions,then we will do so.

Jill Bennett (01:17):
Joining me now is Michael Mulligan, a lawyer with
Mulligan Defence Lawyers.
Michael, thank you for beingwith us today.

Michael Mulligan (01:24):
Hey, good afternoon.
Thank you very much for havingme.

Jill Bennett (01:26):
Well, good afternoon.
And before we get into thespecifics of what the removal of
part four of the bill, theEconomic Stabilization Tariff
Response Act, what that does,can you go through some of the
concerns?
You and I know many others,we've talked about it, we were
talking about it here yesterday,but what concerns did you have
specifically with this bill?

Michael Mulligan (01:47):
Well, there are multiple sections to the
bill.
There are five sections intotal, and today the Premier
walked back section or part fourof it.
There are a number of concerns.
Broadly speaking, section fourallowed virtually unfettered
power to amend legislationwithout passing it through the
House, and so you can easilyimagine just how broad that is

(02:11):
and why that is offensive todemocratic norms and the
legislative process.
There are, however, othersections and parts of this bill
that remain that people shouldbe aware of and consider whether
they think they're appropriate.
So, for example, part 2 of thebill Bill 7, deals with

(02:33):
government procurement, and so,if passed as it currently stands
, it would allow the governmentvirtually unfettered discretion
to change government procurement, cancel contracts, determine
who they're purchasing and notpurchasing things from.
That particular provisioninterestingly doesn't have one
of the constraints that existedin that really broad section,

(02:56):
part four, that the governmentjust backed away from.
That part four required changesto legislation to specifically
address challenges anticipatedfrom a foreign jurisdiction.
That doesn't exist at all inPart 2.
And so the government, ifpassed in this way, could, for
example, decide to unilaterallycancel government contracts and

(03:17):
for whatever reason they saw fit.
Another element of Part 2 thatpeople should be aware of.
That's a concern is that itactually prohibits people
affected by that from going tocourt.
So if a person tried to seekdamages for some unilateral
action by the government, itwould prevent them from going to

(03:37):
court to challenge it, and it'sentitled protection against
legal proceedings that generallywe don't need to protect
ourselves from the courtsreviewing things.
So that's a concern.
There's another section, part 3,which would remain Part 3,
would permit the government tounilaterally, without debate in
the legislature, do things likeimpose taxes or fees for, for

(04:02):
example, people wanting totravel to Alaska.
Now you may think that's a goodidea, you may think not, but
we've heard, for example, aresponse from Alaska saying, if
you do that, one of theresponses may be to remove
provisions that currentlyrequire cruise ships from the US
to stop in Canada, so it mightbe the end of the cruise
industry.
Now there could be a legitimatedebate about whether that's a

(04:25):
good or bad idea, but theconcern with this kind of
legislation is that it wouldremove the debate.
There's good reason why we havedecisions, important decisions
debated in the legislature sothere can be sober contemplation
of the pros and cons, and thiswould allow that sort of
unilateral action that couldhave really broad effects to
occur without debate in thelegislature.

(04:48):
So that would remain, andremains, a concern.
Another part of the bill Part 5,has a bit of a sleeper
provision that I don't thinkmany people might appreciate
what effect it would have.
In Section 27 under Part 5, andthe heading there is General
Provisions, so it would apply toall of the other provisions of

(05:08):
the Act.
And when you read it it simplysays Section 5 of the Offense
Act does not apply to this Actand the regulations or the
directives.
And you might think what doesthat mean?
It seems to suggest this issomehow less serious, but it's
quite the opposite, and it hasto do with how that interfaces
with a section of the criminalcode.

(05:29):
Section 127 of the criminal codein Canada provides that if a
person disobeys an order made bya court or a body of persons
authorized by the act to make anorder other than for a payment
of money, it turns that into anindictable offense punishable by

(05:49):
two years in prison, and thebill doesn't contain another
provision for penalty, and sothat default provision under the
criminal code could haveapplication.
And so the broad concern isthat even without the sort of
completely unchecked provisionsof Part 4, it could make

(06:09):
somebody breaching a directiveor order under this bill subject
to criminal prosecution, and sowe need to think carefully
about whether we want to turnover unilateral power to the
government to make orders and dothings that could lead to
criminal consequences for peoplewithout debate.

Jill Bennett (06:29):
Is there anything in the bill you think, given the
situation with the UnitedStates?
Is there any part of this billthat is warranted or necessary
to deal with the tariffs and tobe part of the tariff response?

Michael Mulligan (06:45):
Well, I think there is legitimate
consideration should be given toappropriate responses, and this
bill is not necessary to permitany kind of a legislative
response.
What this bill would do is allowthe government premier
effectively to respondunilaterally without debate, and

(07:05):
so it's not a matter of withoutthis bill, there couldn't be an
appropriate, measured responseto some arbitrary action by
President Trump.
What this bill would do wouldbe to empower the premier and
provincial government to engagein their own unilateral action
in response, and so, in myjudgment, it's not an

(07:31):
appropriate response to chaotic,unilateral actions by the US
president should not be toempower our provincial premier
to engage in his own unilateraland perhaps poorly thought out
responses.
Left-wing populism is not agood response to right-wing

(07:51):
populism, and there's goodreason why we have a legislative
process so that proposals canbe debated, public can see it,
hear the pros and cons, hearthose things challenged and then
make a decision.
And so, in my judgment,prudence would dictate we avail
ourselves of that process ratherthan trying to empower the

(08:13):
premier to get out a big feltpen and respond quickly without
debate.

Jill Bennett (08:19):
So, with the rolling back then of part four
and the Premier saying he isdoing this because he didn't get
the balance right and, due tosome of the pushback, some of
the concerns, many of which youjust raised, that that is the
reason why he's doing this, Iget the sense that you and many
others who have raised theseconcerns would say that doesn't

(08:39):
go far enough.

Michael Mulligan (08:41):
I think that's correct.
It's a good move.
I'm glad he received themessage that completely
unchecked power to amendlegislation without debate is
rather a bit much, but theprovisions that remain the other
parts of this bill bit much.
But the provisions that remain,the other parts of this bill
allow the same sort of arbitrarydecision-making without debate

(09:02):
by the premier and provincialgovernment, and so none of that
is to say that there aren'tgoing to be, there may not be or
there might not becircumstances where there would
be an appropriate response.
It's a matter of whether aresponse has to be so quick that
there's no time to have debateover it.
That's really what this amountsto.
Without this bill, thelegislature could well debate

(09:25):
and pass legislation veryquickly.
This bill, if passed, wouldallow the premier and provincial
government to do those thingsunilaterally, without debate,
and so I think people need tothink about is that necessary or
wise right?
We've seen the chaos that'sflowed from President Trump

(09:48):
implementing tariffs and thenremoving tariffs.
And having a good day or havinga bad day on the phone and
things going on and off itcreates chaos.
And having a good day or havinga bad day on the phone and
things going on and off, itcreates chaos.
And in the press conferencetoday where he was backing off
of the Part 4 of this bill, thePremier seemed to speak
favorably about thecircumstances in Ontario, with

(10:09):
Doug Ford unilaterally adding anexport tariff to electricity
and then he quickly cancelledthat a short time later, and I
don't think that's an indicationof success.
I mean, certainly if you'reDoug Ford, you want to get
attention for the provincialelection or for whatever other
purpose that might make you looktough or get you on the TV or

(10:30):
radio talking about it, but Idon't think that was a sign of
success.
And so this bill would be toempower our premier to engage in
some areas now the same sort ofon the quick, arbitrary
decision making, and that's notlikely to be a successful long

(10:51):
term response.

Jill Bennett (10:53):
I know, and I think many would agree with that
, that's that breakdown of whathappened with Doug Ford and the
electricity tariff.
One other question, michael,because this has been brought up
as well, that these powers,this bill the way it is, and
maybe even with the removal ofPart 4, they go beyond the
response that we were evendealing with when COVID was

(11:14):
happening, when we were in themidst of a global pandemic.
We are not at war with theUnited States.
Granted, things are serious andthey're not good, but we aren't
at war.
So is this really necessary atall?

Michael Mulligan (11:28):
In my judgment , no, and it's simply because if
there is a good idea in termsof a response that can be
debated in the legislature, itcan be passed quickly.
It's not as if uh the conceptof having people debate things
or discuss them or uh havedecisions made in a public way
prevents a good and measuredresponse.
We have that, uh.

(11:49):
This would be to use thiscurrent um state of affairs,
with chaotic, harmful decisionsbeing made unilaterally by a US
president, to try to use that asan opportunity to take
authority to make unilateraldecisions in the other direction
.
I don't think that should bethe takeaway.
We need to respond.

(12:10):
We should respond carefully andappropriately.
But there's good reason why wehave a legislature, why we have
elections, why we have debates,why we do and make those large
and important decisions in apublic way.
There's benefit to that.
I rather suspect in the US case.
If there wasn't delegatedauthority to the US president to

(12:31):
unilaterally add and subtracttariffs at whim, we wouldn't be
engaged in the sort of chaoswe're currently engaged in.
If there was a proposal in theUS, for example, to increase
tariffs for some reason and thathad to be debated in the House
of Representatives or the Senateit had to be passed.
You wouldn't see tariffs on oneday, tariffs off after a very

(12:51):
nice phone call or a very niceletter and then back on the day
after that.
There's good reason why wedon't have a system where we
elect one sort of czar and allowthem to do whatever they feel
like at whim.
There's good reason why we havea legislative process and
debate and so on, and this bill,on a number of fronts, attempts

(13:15):
to undo that, using the chaoswith the United States as the
justification for it.
It's good news that they'vebacked off one of the parts of
this bill, but in my judgment,the other parts, which would
remain if passed as theycurrently sit, would simply do

(13:36):
that in some other areas, and weshouldn't have legislation that
does things like tries toprevent a person going to court
to challenge something.
Why?
I mean we've seen that in theUS with, I guess, pushback from
courts about whether things thatPresident Trump has done are
lawful or not.
And when you read part two ofthis bill Trump has done are

(13:59):
lawful or not, and when you readpart two of this bill, the
government attempts to preventpeople from going to court
challenging, for example,procurement decisions.
Right, I mean you would hopethe government would act
reasonably with things.
I'm sure that's the hope always.
But for example, under theprocurement directives, if the
premier decided they were goingto I don't know cancel all
non-union contracts, well thatwould be that then and there'd

(14:20):
be no legal proceedings and theycouldn't be commenced or
maintained to seek anycompensation for doing that.
The part doesn't even requirechanges to procurement
directives, like contracts andso on, to have anything to do
with a foreign jurisdiction,donald Trump or trade.
I mean at least part four,which allowed sweeping changes

(14:40):
to any piece of legislation, atleast required it to be somehow
in response to a foreignjurisdiction or anticipated
challenge to British Columbia.
Part two doesn't require any ofthat.
So in my judgment, we ought tobe very, very careful before
passing something like this.

Jill Bennett (14:57):
Michael Mulligan, we'll leave it there.
Thank you for joining us today.

Michael Mulligan (15:01):
Thank you so much for having me have a great
day.

Jill Bennett (15:03):
You too.
That is Michael Mulligan, alawyer with Mulligan Defense
Lawyers.