A neat procedural / consitutional update: The NB LG transmitted a message to the Assembly that Bill 99, an Act to amend the Electricity Act receives a Royal Recomendation per section 90 of the Constitution Act, 1867 #nbpoli
S.90 of the Constitution Act, 1867 is a restatement in Provincial Constitutions of the requirement that any monies appropriating revenue from the Consolidated Revenue Fund must be recommended by the Lieutenant Governor. This is a key feature of Responsible Government /2
S.54 of the Constitution Act, 1867 indicates that there is a requirement for the GG (LG) to recommend the appropriation of public monies form the Consolidated Revenue Fund. Why? /3
Before Responsible Government in New Brunswick, there was Representative Government where the Crown's advisors did not require the confidence of the Legislative Assembly to govern. This structure had a feature / flaw incompatable with today: No financial intative of the Crown /4
A big change in NB's Constitution occured in 1837 with the surrender of Crown lands and timber to the province and the entrenchment of a civil list. LG Campbell tried to ensure safeguards to prevent MLAs from proposing bills that would spend money the government did not have /5
To quote one author: "The highly democratic and equally ineffecient methods of disposing of public money, so long in vogue in the legislature, would now be extended to the casual revenues and would become a new source of spoil to the ocmmittee of the House of Assembly." /6
Colonial Secretary Lord Glenelg was more circumspect in rejecting NB LG Campbell's caution: "It would be the disturbance of a custom to which the people of New Brunswick are familiarized and attached"
The Assembly loved him. That is why there is a portriat in the Legisture. /7
Going back to the main point, Responsible Government means that the Crown has an effective veto over the spending of Public Monies. If the Assembly doesn't agree with spending, it can always vote against the supply bill which is a matter of confidence. /8
The Constitutional requirement for a Royal Recommendation ensures that there is a coordinated spending of financial monies in New Brunswick where it isn't up to individual MLAs to proposed uncordinated spending.
A combintion of history and the Constitution.
/9
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The New Brunswick Minister of Health tabled significant changes to the Public Health Act today.
These may appear minor but they provide legislative adjustments so New Brunswick no longer has to resort to using a State of Emergency in a subsequent wave of COVID. #nbpoli#cdnlaw
At first glance, these amendments address several concerns I identified with the current Public Health Act: unclear roles, unclear class orders, allowing closure of premises related to notifiable diseases, increasing fines.
In any legislation there will always be room for improvement. Let me be clear at first glance full credit to Public Health and the Office of the Attorney General.
Bill 104 provides a proper legal framework for New Brunswick to respond to pandemics.
What is a municipal state of emergency? Lets review. A state of emergency by a city is declared persuant to section 4 of the Emergency Management and Civil Protection Act. In this case by the Mayor of Ottawa. #OttawaConvoy /n
This allows the city to do 2 different things. fuller activation of certain components of its Emergency Management Plan and also provides the city with certain additional limted powers. You can read the city of Ottawa's Emergency Management Plan here documents.ottawa.ca/sites/document…
A state of emergency represents the highest level of activition for the Emergency Management team which relies on an Operations centre to coordinate all tasks associated with an event. It provides situational awareness. The higher the level, the more senior coordination involved.
Putting on my emergency management hat, some initial steps to resolving the situation in Ottawa is reducing access to the literal fuel that is sustaining this protest in Winter.
What: restrict the fueling of Jerry cans / propane at gas stations
Unlike in NB, the ON Emergency Management and Civil Protection Act is somewhat vague as to the powers of a municipality where a Mayor can declare a state of emergency and take certain actions that are "not contrary to law" to protect the health, safety and welfare of residents
It is this limitation of "not contrary to law" that warrants further examination. I assume that it places a limit on the emergency powers of a city where it cannot displace or suspend existing provincial laws. To my knowledge there is no present law guaranteeing access to fuel.
🧵What are the extent of the New Brunswick government's powers to end a strike using the Emergency Measures Act? Let's review. The province has the ability to order workers back to work if a strike impacts the ability to respond to an emergency. With some caveats #nbpoli /n
S.12 of the Act gives the province the ability to "do everything necessary for the protection of property, the environment and the health & safety of persons therein" the list in section 12 only provided examples but isn't exhaustive. Can also ensure access to buildings /2
The province cannot legally suspend or amend other acts via a mandatory order as the EMA doesn't give this power. Paragraphs that overreach this rule I would expect to generate considerable interest in a labour context especially regarding fines for violating an order. /3
Only the Legislature can increase fines (they should), this is because the Emergency Measures Act does not allow Cabinet to suspend or amend laws. The Act needs to say "suspend the operation, either in whole or in part, or amend an Act of the Legislature" but it doesn't #nbpoli
Statutory interpretation & and the Bill of Rights does not allow Cabinet (or in this case the Minister of Public Safety) the authority to unilaterally suspend or amend laws unless authorized by the Legislature. Same reason why Cabinet cannot unilaterally change school vaccination
New Brunswick is distorting the principle that the Legislature is Supreme. Because these fines are being imposed contrary to the rule of law, Crowns are going to run into issues when prosecuting these offences. This can be fixed via Legislative amendment but not retroactively.
In 1918, after NB Minister of Health ordered the closure of places of worship to limit the spread of the Spanish Flu, the Baptist Churches in Westmorland endorsed him for safeguarding public health and stated that the order was "no interference" in the exercise of worship #nbpoli
Minister Roberts thanking them for their view stating it is the correct one to take respecting "the health & lives of the people".
He regretted that some churches did not share this opinion but is pleased there are some who will stand up and take the part to do what is right
The pandemic of 1918 was incredibly hard on people. Here Minister Roberts issues a reminder that no public funerals were to occur to in order to lessen "the ill results from Influenza". Roberts received many correspondence asking for exemptions.