Who's on first?

Oldtimers will recall this amusing baseball comedy routine by Bud Abbott and Lou Costello. In the video below, you can see the duo going back and forth about which baseball players are playing different positions.

"Who's on first, What's on second, and I Don't Know is on third," Abbott says, leading to rapid-fire banter.

This week, there's been a similar routine playing out with the B.C. NDP government in response to who comes first in protecting the rights of the immunocompromised in the pandemic.

The spectacle unfolded after Human Rights Commissioner Kasari Govender blew the whistle on the government's discriminatory treatment of the marginalized by lifting provincial mask mandates.

"Given the benefits of the mask mandate for thousands of marginalized people and the minimal impact on those being asked to wear one, the balance at this time favours continuing the mask mandate," Govender wrote in a March 16 letter to Dr. Bonnie Henry.

"As an effective and minimally invasive intervention, the mask mandate is justified after other more intrusive public health measures have been lifted," Govender continued. "That people dislike wearing masks is not a compelling argument when weighed against the rights of others to life, security of the person, and equal participation in social and economic life."

Those final words are key. The right to life and security of the person is enshrined in section 7 of the Canadian Charter of Rights and Freedoms. Equality rights are guaranteed in section 15 of the charter.

So naturally, this raises a question about how Attorney General David Eby will respond.

After all, he's the chief legal adviser to cabinet under the Attorney General Act.

When it comes to constitutional matters and human rights, we can safely say that Eby's on first.

The premier's mandate letter to Eby actually instructed him to work with the commissioner and other stakeholders on legislation to reduce systemic discrimination.

But when Vancouver residents Ian Robertson and Tracy Casavant wrote to Eby asking what he was going to do about systemic discrimination resulting from the lifting of the provincewide indoor mask mandates, his office threw the ball to Health Minister Adrian Dix.

"The health care system and the issue of mask mandates and vaccination requirements are within the responsibilities of the provincial Ministry of Health," the attorney general's legal services branch replied to Casavant. "Therefore, we are referring a copy of your email to the Honourable Adrian Dix, Minister of Health, for his consideration."

Robertson received an almost identical reply. But because he had raised two sections of the charter in his letter, the word "consideration" was replaced with "information".

"We note your query regarding the legality of discontinuing school mask mandates through the lens of sections 7 and 15 of the Canadian Charter of Rights and Freedoms," the legal services branch responded to Robertson.

https://twitter.com/ianwrob/status/1509216980892487681/photo/1

The next batter at the plate, Green Party of B.C. Leader Sonia Furstenau hit a line drive to Dix in the legislature, citing Govender's letter.

Dix, however, insisted that the provincial health officer, Henry, is overseeing this. Dix threw the ball to Henry on third.

"In British Columbia, we have under the Public Health Act an independent health officer...who has worked on and done, I think, extraordinary work in the pandemic balancing these very issues," Dix said.

When Furstenau followed up by inquiring why the government had transferred the risk burden to a medically vulnerable minority, Dix claimed that his government is "doing just the opposite".

"We have given focus from the beginning of the pandemic to those most clinically vulnerable—in long-term care, people who are clinically vulnerable in the community," Dix said. "It’s been reflected in every aspect of the COVID-19 response, and it has because of the ethical values and approach of our provincial health officer and the ethical approach we’ve taken in British Columbia to these questions. That will continue to be the case.”

Eby was sitting beside Dix in the legislature that day—just as he was sitting beside Dix in the Naam Restaurant on the day Eby was first elected to the legislature in 2013. And the attorney general joined in the applause with other NDP MLAs after Dix had given his stirring defence of the provincial health officer's autonomy over health matters.

Whose team is Henry on?

So to answer the questions of Casavant and Robertson, let's just conclude for a moment that Eby is on first, Dix is on second, and Henry is on third when it comes to scrapping the provincewide indoor mask mandates. It's been a triple play.

But whose team is Henry really on? Sure, she's the provincial health officer since receiving this appointment in 2018. In that capacity, she reports to Dix.

However in 2020-21, she was actually paid by the Provincial Health Services Authority. It's an arm's-length organization with its own board of directors, which is funded by the provincial government.

So in a technical sense, Dix can't fire her, though he can replace her as provincial health officer.

It means that B.C.'s pandemic response is actually being overseen by a physician who works for an organization chaired by a retired executive of RBC Royal Bank, Tim Manning.

The other members of the board of this arm's-length organization are UBC medical-school professors Dr. Ken Bassett and Kerry Jang, retired Hospital Employees' Union financial secretary Donisa Bernardo, Witset First Nation member Wii Esdes (Sandra A. Martin Harris), planning consultant Gary Pooni, retired credit-union executive Sharon Stromdahl, chartered accountant David J. Turchen, and lawyer Suki Gill.

The Provincial Health Services Authority's general counsel and chief legal officer is Zulie Sachedina, who's actually described as a "human rights advocate" in her profile on the website.

So if Casavant and Robertson believe that the lifting provincewide indoor mask mandates contravenes sections 7 and 15 of the charter—and if they believe Dix that it's Henry and Henry alone who made this decision—perhaps the proper venue to address this is with her employer, the Provincial Health Services Authority.

If Eby will not look at the lifting of indoor provincial mask mandates through the lens of sections 7 and 15—because this wasn't a cabinet decision, as Dix essentially maintained—perhaps the health authority's general counsel and chief legal officer will do this.

Failing that, the only lawyer on the Provincial Health Services Board, Suki Gill, might be the next person to approach.

Dix still has considerable power

But it doesn't let the health minister completely off the hook.

Under the Public Health Act, which he's so fond of citing, Dix has tremendous powers.

"To promote and protect health and well-being, the minister may by order require a public body to make, in respect of a specific issue or geographic area, a public health plan," the law states.

He can, for instance, order school boards to identify and address the health needs of particular groups within the population, including the immunocompromised.

He appoints the school medical officers for each district. He can ask them to report on the impact of lifting of their indoor mask mandate on, say, kids with Type 1 diabetes. After all, they are more than six times more likely to develop serious complications from COVID-19 than those who are not immunocompromised.

In this public health plan for public bodies, Dix can also issue a requirement to monitor and assess the status of the health of the population and prevent and mitigate the adverse effects of diseases and disabilities.

"An order under this section may include a requirement to comply with any written agreement in respect of public health plans entered into between the minister and the public body," the Public Health Act states.

Who's on first, indeed? Maybe it isn't Eby after all. 

Dix has legal authority to order a school district to impose an indoor mask mandate as part of its public health plan. He can order TransLink, as a governing body, to do the same under its public health plan. It's pretty clear from sections 3 and 4 of the Public Health Act.

Here's what section 4 states:

Approval of public health plans

4 (1) A public body required to make a public health plan must

a) submit the public health plan to the minister,

b) revise the public health plan according to the directions of the minister, and

c) once the minister is satisfied with the public health plan, publish the public health plan.

Under section 4 (2), the minister may place the public health plan before the cabinet for approval by an order.

Dix is not a licensed professional, so he can't be held accountable by any of the self-governing professional organizations. But Henry is a doctor and Eby is a lawyer.

There's nothing stopping Casavant and Robertson from filing complaints to the College of Physicians and Surgeons if they think that Henry is violating any of its practice standards and professional guidelines or if they feel that Eby is violating any of the law society's rules in connection with the end of provincewide indoor mask mandates.

But before devoting too much time to this, they might want to be aware that Eby is one of the benchers, which means he sits on the law society's board of directors.

In a November 2021 review by Harry Cayton on the governance of the law society, he found it "curious" that the attorney general is a bencher. That's especially so given the importance of keeping the independence of the legal profession separate from political and other pressures.

Cayton did not include a recommendation to remove the attorney general from the law society's board of directors. But he had many other recommendations, some of which could be brought forward through legislation.

However, he noted that this doesn't appear to be likely.

"More than one of the senior leaders of the Society told me that changing the Legal Profession Act was not a realistic possibility," Cayton wrote. "What that means is that the legal establishment in British Columbia has no real desire for change. To me, that is regrettable and I hope it is not true."

That lack of desire for change also appears to be the case in how the pandemic is being overseen in B.C. Whether that, too, is regrettable is in the eye of the beholder.