Toby Kruger is a Yellowknife lawyer who advises private and public sector clients on litigation and regulatory matters.
A group of business people in Yukon have challenged the constitutionality of various measures taken by the Yukon government in response to the Covid-19 pandemic. Like the Northwest Territories and Nunavut, Yukon has mostly closed its borders except to residents and essential workers, and has made a number of orders affecting daily life and the economy.
The petition, filed on June 16, takes aim at the entire Civil Emergency Measures Act (CEMA) – in force since 2003 – on the grounds that it “is inconsistent with the unwritten constitutional principles of Canada, specifically the rule of law, democracy, constitutionalism, parliamentary accountability of government, and the separation of powers.” In particular, the petition takes aim at CEMA section 9, which states:
Despite any other Act, when a state of emergency has been declared to exist under section 6 or 7, the Minister (of Community Services) may do all things considered advisable for the purpose of dealing with the emergency.
If successful, the challenge to CEMA will dismantle much of the Yukon government’s Covid-19 response that has been made by way of regulation or order under CEMA, including the Civil Emergency Measures Border Control Measures (Covid-19) Order (Border Control Order) and the Civil Emergency Measures Health Protection (Covid-19) Order (Health Order), the latter of which contains the rules for self-isolation and prohibits the opening of various businesses.
The petition also specifically takes aim at the Border Control Order, alleging among other things that it is contrary to section 6 of the Canadian Charter of Rights and Freedoms: Mobility Rights. That section guarantees the rights of citizens and permanent residents of Canada – i.e., not just Yukon residents and essential workers – “to move to and take up residence in any province” and “to pursue the gaining of a livelihood in any province”, subject to certain limitations. Of course, all Charter rights are under section 1 “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Debating those limits in the Covid-19 pandemic – in a territory where there have been no active reported cases since at least May 1 and whose legislature has not sat since March 19 and does not plan to sit until October 1, 2020 – may be where the nub of this case lies.
In order to sustain its emergency measures under CEMA, the Yukon government must maintain a state of emergency, which expires every 90 days. The Yukon government extended the state of emergency on June 12, and the petition seeks judicial review of that decision. Again, if successful, quashing that decision would eliminate the basis for much of Yukon’s Covid-19 measures. In support of the judicial review, the petitioners indicate that they are “in the process of obtaining expert opinions from two epidemiologists”, and seek production of “(a)ll documents in the (Yukon government’s) possession that were considered in deciding to extend the state of emergency on June 12, 2020” and the epidemiological modelling used to inform that decision.
Unlike the Northwest Territories, but like Nunavut, Yukon has suspended sittings of its legislature during the pandemic. This, combined with the broad ministerial authority granted under CEMA, forms the backdrop for the challenge, which alleges the decision to extend the state of emergency was “made behind closed doors, with no public debate, no public consultation, no justification, and no explanation of its intended purpose or aim.”
Also significant is that the petition challenges both the Border Control Order and the Health Order as going beyond the powers granted to the Yukon government under section 18 of the Yukon Act, which sets out the Yukon Legislature’s powers. If that argument prevails, then the orders must fall even if there is a compelling public health justification, since the Yukon government will not have had the jurisdiction to make those orders in the first place. And such a decision could have implications for the Northwest Territories and Nunavut, and the analogous orders they have made, as their legislative powers are also grounded in federal statute and broadly similar to Yukon’s. Recall that the division of powers in the Constitution Act from 1867 does not apply to the territories, so the analysis will be different than it would be for a province.
Undoubtedly, this case will attract interest both north and south of 60, and we will continue to monitor its progress. As it has in all other aspects of our lives, Covid-19 has entered the courts.