Constitutional challenge takes aim at order’s travel restrictions and territory’s legislative powers
A group of Yukoners have filed a petition challenging the Yukon’s Civil Emergency Measures Act, arguing the territory’s COVID-19 pandemic response is an affront to mobility rights under the Charter and outside its legislative authority.
The challenge is “multi-faceted,” and a “laundry list of Charter challenges against the emergency measures being taken by the Yukon government,” says Toby Kruger, a Yellowknife, NWT-based partner at Lawson Lundell, who is not involved in the case. Kruger advises clients on litigation and regulatory issues, with a focus on matters related to energy, mining, land, environmental, public utility and Indigenous law.
On June 12, the Yukon Government extended the state of emergency, declared under the territory’s Emergency Measures Act, for 90 days. On June 16, a group of seven residents filed a petition seeking judicial review of that extension.
In the wake of the pandemic, the Yukon, along with the Northwest Territories and Nunavut, closed their borders to all except residents and essential workers. The petitioners argue this restriction violates s. 6 of the Charter guaranteeing mobility rights. Section 6 allows all Canadians “to move and take up residence in any province” and to “pursue the gaining of a livelihood in any province.”
The petitioners have also requested material from the government detailing the epidemiological modelling it used to arrive at the decision to extend the state of emergency and have sought their own expert advice of two epidemiologists.
The Yukon Legislature adjourned on March 19 and will reconvene Oct. 1. Kruger says that, given the wide ministerial powers granted under the Civil Emergency Measures Act and the fact the lawmakers are not currently sitting, the petitioners’ challenge will argue the decision to extend the state of emergency was made “behind closed doors,” with no public debate, consultation, justification or explanation.
“There's no ability for members of the house to ask questions on behalf of their constituents to the ministers,” Kruger says.
The challenge also alleges the territory’s pandemic measures go beyond the powers granted in the Yukon Act, the legislation by which the territory was established. If this jurisdictional allegation is successful, the Yukon’s orders will not be held up by a “compelling public health justification,” writes Kruger in a firm blog. Such a decision will be felt eastward across the borders, as the Northwest Territories and Nunavut have made “analogous orders” and have legislative powers “grounded in a federal statute… broadly similar to Yukon’s,” he writes.
On June 10, the Northwest Territories government announced it would rescind its own travel restrictions and once again allow visitors from out of province. The government said the move was intended to align the territory’s policy with mobility rights under the Charter. The order restricting entry to residents and essential service workers had stood since March 29.
A similar challenge is underway on the other side of Canada. On May 20 the Canadian Civil Liberties Association took Newfoundland and Labrador to court over that province’s COVID-19 pandemic measures. The CCLA partnered with a woman who was unable to enter the province to attend her mother’s funeral and are challenging Bill 38, which amended the Public Health Protection and Promotion Act.
The CCLA argues Bill 38 is counter to the s. 7 protection of life, liberty and security of the person because it “allows for the detention and removal of individuals from the province without due process.” The amendments also violate Charter protections against unlawful search and seizure and arbitrary detention, said the CCLA.