It is a rare occasion when B.C.’s highest court, the B.C. Court of Appeal, declares a provincial law unconstitutional — but it happened last month.
Fortunately for Premier David Eby, the ruling came at a time when most people were paying attention to the festive season, not court rulings.
But the principles involved are important. Questions need to be asked.
The government tried to trample on the rights of citizens to procedural fairness in local government zoning, and tried to ignore provisions designed to ensure public participation in decision-making by elected officials.
The court decision concerns a proposed development in 91原创, where city council approved in principle a social housing development after a truncated public-hearing process.
The Kitsilano Coalition for Children and Family Safety Society pushed back with a petition for a judicial review.
That petition, which challenged the public-hearing process as well as the procedures that council had followed, threatened to delay or derail council’s plans to give the final go-ahead for the development.
But 91原创 council decided to push the plans through, local opposition be damned, and asked the provincial government for help.
The result was the Municipal Enabling and Validating Act (No. 5), known as MEVA 5.
It didn’t take much persuading. NIMBYism — the not-in-my-backyard syndrome — is one of Eby’s pet peeves. Besides, as on many other files, he believes he knows best.
“This is housing that everyone agrees is needed,” Eby told reporters in April 2023. “It’s been completely stalled out. Despite there being a housing crisis, we’re now going into year two and it is still not built.”
Housing Minister Ravi Kahlon, not to be outdone, indicated the essential need to push full speed ahead.
“We simply cannot wait long and longer to get the critical housing that we need,” said Kahlon. “That’s why we’re taking the steps we’re taking today.”
Public hearings and people’s concerns about their neighbourhoods are not just a 91原创 matter, as the NDP government has ordered councils throughout the province to severely limit public input. The implications of the government’s actions would be felt across B.C.
Beyond that, the Kitsilano site is mere metres from an elementary school. The surrounding community wanted more input, hardly an unreasonable ask.
Eby was apparently determined to bypass opposition, even if it meant taking away legitimate individual rights.
Fortunately for all of us, the Kitsilano coalition went to court — not to argue that the social housing objectives were wrong, just that they wanted to be heard.
In Canada, courts cannot create or replace legitimate government policy. As the decision reads:
“This appeal is not about whether the housing crisis identified by the province requires action or whether the proposed development should proceed. Those are issues of public policy that are beyond the purview of this court.”
However, the province crossed the constitutional line, and should have known that was a distinct possibility. Even their arguments in court seemed arrogant.
Consider this one: “The [government] attorney contends the court is made irrelevant to the matters raised in the coalition’s petition.”
Madame Justice Mary Victoria Newbury, the longest serving B.C. Appeal Court justice, wrote the decision. Her decisions are cited frequently in courts across Canada.
In this case, she wrote:
“A superior court must be guided by the ‘values and principles essential in a free and democratic society’ including the ‘accommodation of a wide variety of beliefs’.”
She summed up by saying that MEVA 5 was contrary to the Constitution Act of 1867, and “is of no force or effect.” In other words, the legislation was tossed out.
That legislation had been supported by Attorney General Niki Sharma, Premier David Eby — a former attorney general — and the rest of the NDP caucus of the day.
The fundamental role of an attorney general is to advise and attest to cabinet that proposed legislation is constitutional. In some Westminster parliamentary jurisdictions, the attorney general is elected but independent of cabinet — attending only to provide legal advice. The role is that important.
Did Sharma receive briefing material from staff that questioned the constitutionality of the legislation? Did she receive it and not follow it?
Did she caution cabinet? Did cabinet proceed after being given caution?
If so, it would not have been the first cabinet to put political expediency ahead of legality concerns — after all, an election was coming, and the NDP wanted to look tough and decisive.
After the appeal court ruling, the government has three basic options:
1. Rewrite the legislation to try to get around the court’s concerns. This would generate more and greater uncertainty.
2. Appeal to the Supreme Court. This would take a year or two, with everyone in limbo, and the necessary social housing mired in consultation. The government might not win anyway.
3. Re-introduce the legislation and include a notwithstanding clause. This would provide certainty and deal with the crisis in social housing.
The legislature’s goal was to mitigate the housing crisis in 91原创 by avoiding a delay in the building of supportive housing units.
That goal has not changed — but the appeal court decision strikes to the heart of government credibility.
It appears that the government has to choose between trampling individual rights or quickly mitigating the social housing crisis.
Spin doctors, political election strategists, housing advocates, lawyers and just about everyone else will be waiting to see how the government manages this issue.
The next election might turn on it.
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