Blog2020-06-22T08:22:23-06:00

PANDEMIC POWERS AND THE CONSTITUTION

COVID-19 and the Exercise of Legislative Power by the Executive

By |June 22nd, 2020|Tags: |

Legislation Commented On: Regulations Act, RSA 2000, c R-14 and Public Health Orders issued in relation to COVID-19The COVID-19 pandemic has become a rare opportunity to study the widespread exercise of emergency lawmaking powers in Canada. Governments have enacted legal rules on matters such as social distancing, quarantine, economic controls, regulatory relief, employment standards, landlord-tenant, access to justice, and health care protocols. Commentators have warned that we must remain vigilant in ensuring these emergency measures do not offend the rule of law, and this message is likely to intensify as more emergency measures are used to either further the current shutdown or control our emergence from it; for example, in relation to surveillance and privacy rights as Joel Reardon, Emily Laidlaw, and Greg Hagen recently noted here. These substantive concerns are amplified by the fact that most COVID-19 emergency powers are being exercised by the executive branch of government and its delegates, using legislative power delegated to them in public health or emergency statutes. Because it is unlikely that legislatures envisioned such an extensive use of these powers for a prolonged time period, shortcomings and gaps in the lawmaking process are becoming apparent. Hallmarks such as organization, clarity, predictability, consistency, transparency, and justification – which, in normal times, provide the executive with much of its legitimacy to govern – have been impaired or are missing altogether in the exercise of legal power to contain COVID-19. This post examines how Alberta ministers and the Chief Medical Officer of Health have been exercising emergency powers so far during the pandemic, and makes some pointed observations on the hallmarks of legitimate governance and the role of the Regulations Act, RSA 2000, c R-14, in this regard.

Pandemic Preparedness and Responsiveness in Canada: Exploring the Case for an Intergovernmental Agreement

By |June 15th, 2020|Tags: |

Canada’s lack of a coordinated response to the COVID-19 pandemic and the improvisatory nature of (at least many) individual provincial responses suggest that the Canadian approach to public health emergency preparedness and early public health emergency responsiveness remains inadequate. The federal government primarily played an advisory, spending, and/or data collating role in its “early” (though some said “late” where it followed provincial initiatives) response to the crisis. Provinces took and continue to take various approaches, some of which (like restrictions on interprovincial movement) have questionable jurisdictional bases and human rights implications.

The Absolute Limits of Canada’s Emergency Powers: The Unwritten Constitutional Principles Entrench Rights that Remain Non-Derogable in Extremis

By |June 8th, 2020|Tags: |

Since the launch of the Centre for Constitutional Studies' Pandemic Powers and the Constitution Blog, a number of thought-provoking posts have been penned by leading scholars in the areas of public law, health law, and constitutional law, including the contributions of Professors David Dyzenhaus, Paul Daly, Sujit Choudhry, Amy Swiffen, and Maxime St-Hilaire.This post builds upon their observations about the constitutional limits of emergency powers implicit to the statutes that authorize them, the division of powers established by the Constitution Act, 1867, and the Canadian Charter of Rights and Freedoms. It presents the author's position that there is another important source of rights in Canada; it is in our constitution's grand entrance hall that Canadians should seek the principles that safeguard our most fundamental rights --regardless of the nature or scale of any future pandemic or public order emergency. Should these principles receive explicit recognition by the Canadian judiciary, this would also make it indisputable that Canada remains in compliance with its most rudimentary international obligations, namely those enumerated in Section 4.2 of the International Covenant on Civil and Political Rights (as interpreted by the Siracusa Principles on the Limitation and Derogation of Rights in the ICCPR, and General Comment 29 to the ICCPR of the United Nations Human Rights Committee).

“The New Normal”: COVID-19 and the Temporary Nature of Emergencies

By |June 4th, 2020|Tags: |

In the inaugural post for this series on Canadian law and the COVID-19 pandemic, David Dyzenhaus argued that the federal government should not invoke the federal Emergencies Act, but rather, Canadian responses to COVID-19 should continue to employ our usual constitutional and legal frameworks. Dyzenhaus identified four reasons to be cautious about employing the Emergencies Act. I agree with his post, and I want to highlight another consideration that should inform the debate around whether to employ emergency frameworks: namely, the likelihood that the threat of COVID-19 is a long-term reality or, in the words of our Chief Public Health Officer, Dr. Theresa Tam, “the new normal”.[1] This blog post draws on scholarship from the security and anti-terrorism field to caution about operating outside the usual legal frameworks to deal with the pandemic. To be clear, I recognize that governments may need to employ exceptional measures to tackle the destructive spread of the virus. However, I suggest that these exceptional measures should be taken through usual constitutional and legal frameworks and we should resist changes to legal or constitutional norms, such as, for example, erosion of constitutional and Indigenous rights, employment of the notwithstanding clause, departures from federalism constraints, or violations of unwritten principles like the rule of law.

Indigenous Peoples and COVID-19: Protecting People, Protecting Rights

By |June 1st, 2020|Tags: |

The past month has brought sweeping, unprecedented change as individuals, communities and nations around the world struggle to deal with the COVID-19 pandemic.Efforts to contain the virus include significantly increased government powers and corresponding limits on civil liberties, as well as disruptions to individuals’ ability to work, socialize and care for one another.In Canada, Indigenous Peoples stand to be disproportionately affected by both COVID-19 and government measures intended to limit its spread. These impacts are a direct result of the historic and ongoing process of colonization. Below, we highlight some of the key issues raised by our clients and other Indigenous groups as the pandemic situation evolves.

Justice in Troubled Times: Pandemic Disrupts the Right to be Tried Within a Reasonable Time

By |May 28th, 2020|Tags: |

INTRODUCTIONOn March 11, 2020, the World Health Organization declared SARS-CoV-2 (COVID-19) a pandemic. The world, and the administration of justice in Canada, changed dramatically within days.As pertinent examples of the effects on the administration of justice: circuit courts closed; the public were excluded from court rooms; criminal and civil court matters were summarily adjourned far into the future, sometimes with warrants “held,” although the accused were precluded from attending; trials were adjourned.This list is not intended to be exhaustive but highlights the events that may cause breaches of section 11(b) of the Charter of Rights and Freedoms, which protects the rights of individuals to be tried within a reasonable time.At the time of writing, this author knows of no case brought alleging delay caused in any part by the pandemic. This paper discusses the potential for such a case, and what courts and counsel may do to mitigate potential breaches of section 11(b).

Are Quebec and Canada having a “Schmittian” (or Iheringian) moment?

By |May 25th, 2020|Tags: |

On June 16, 2019, the Quebec legislature invoked Section 33 of the Canadian Charter of Rights and Freedoms in order to suspend, with regard to the Act respecting the laicity [secularism] of the State (ALS) that it was passing, all constitutional rights and freedoms which this section permits. The ALS prohibits certain categories of persons, such as public officials and managers, civil servants, administrative justices and statutory arbitrators, from wearing religious symbols in the exercise of their duties. . It also states that certain public services must both be provided and received with one’s face uncovered. Insofar as the reception of these services is concerned, however, this obligation applies only where face uncovering is “necessary to allow […] identity to be verified or for security reasons”. The face-uncovering obligation that is incumbent upon the beneficiaries of public services “does not apply to persons whose face is covered for health reasons or because of a handicap or of requirements tied to their functions or to the performance of certain tasks”.

Exercising Indigenous Jurisdiction Amidst the COVID-19 Pandemic

By |May 21st, 2020|Tags: |

Individuals and communities around the globe have been impacted by the COVID-19 pandemic. As federal and provincial governments introduce emergency measures in response to the evolving situation, the actions being taken often fail to take into consideration the unique vulnerabilities of Indigenous communities. As a result, Indigenous governments are acting to safeguard their citizens and communities from the spread of the COVID-19 virus. Unfortunately, due to chronic underfunding and the suppression of Indigeous governance structures by the Crown, the majority are doing so without the infrastructure and governance capacity required to fully implement these measures.

Drug approvals: exclusive Health Canada jurisdiction or fair game for the provinces?

By |May 18th, 2020|Tags: |

IntroductionIn just over four months, a single case of COVID-19 in Wuhan, China spread to nearly 4 million people and caused over 270,000 fatalities, leaving the world desperate for treatments, vaccines, or rapid testing technology to help bring an end to physical distancing. On April 12, Alberta Premier Jason Kenney expressed frustration at a perceived delay in Health Canada’s drug and device approval times, stating on Twitter that “I have directed our officials to consider use of COVID19 tests, vaccines, or medications that have been approved by the high standards of at least one credible peer country’s drug agency… We won’t wait for Health Canada to play catch up.”[1]

The One vs the Many: When Public Health Conflicts with Individual Rights

By |May 14th, 2020|Tags: |

Public health is quite different from traditional healthcare. Whereas healthcare involves medical interventions between health professionals and individual patients, the field of public health attempts to maintain the health of a population. Rather than health of a person, the objective in public health interventions is “breaking the chain of transmission of infection in a community.”[1] This implicates more stakeholders than conventional healthcare and has wider-ranging effects. The role of law is central to public health interventions in this regard as it is the mechanism that allows for the coordinated action of different authorities necessary to respond to public health issues, especially in an emergency. Law creates a structure within which various public health officials and state authorities can act together to protect the population’s health in a crisis.[2]

Part Two: COVID-19 & the Canadian Constitution

By |May 12th, 2020|Tags: |

Federal-provincial division of powers Public health: The COVID-19 pandemic has brought to the fore the complicated relationship between federal and provincial jurisdiction over public health. On the one hand, the provinces have historically been viewed as having primary responsibility for creating public health institutions and laying down public health norms. The front-line response to COVID-19, such as closing down non-essential businesses, government offices and schools, and sharply restricting the use of public property, has been led by local and provincial public health authorities. But on the other hand, the COVID-19 pandemic originated outside Canada, is global in scope, and requires a coordinated, comprehensive international response. Moreover, an infectious disease outbreak in one province affects all the others, because of inter-provincial mobility — COVID-19 does not respect provincial borders. The international and interprovincial dimensions of public health can only be addressed by the federal government.

Part One: COVID-19 & the Canadian Constitution

By |May 11th, 2020|Tags: |

Over the past two months, the federal government, the provinces, and municipalities have exercised a variety of legal powers to respond to the COVID-19 pandemic. Not surprisingly, a large number of constitutional issues have emerged — and could soon give rise to constitutional challenges in the courts.While physical distancing measures are beginning to generate controversy as infringements of the freedoms of assembly and association, they are only one of a long and growing number of constitutional issues, including those arising from: domestic violence; contact tracing via cellphone data; resource allocation decisions in hospitals for end-of-life care; the federal-provincial division of powers with respect to public health (including interprovincial transport and the Emergencies Act); and the delegation of legislative powers by Parliament and provincial legislatures to the executive.

Regulating the Covid-19 Pandemic: Forms of State Power and Accountability Challenges

By |May 7th, 2020|Tags: |

As part of the Verfassungsblog’s excellent symposium on legal responses to the Covid-19 pandemic, Dean Knight penned an especially insightful contribution on New Zealand, noting how the response alla fine del mondo has taken various forms.In this post, I hope to expand on Dean’s contribution, explaining how governments in Canada have used primary legislation, delegated legislation, soft law and persuasion to respond to the spread of the novel coronavirus, and identifying the different types of accountability challenge attached to these different forms of state power.

Canada the Good?

By |April 27th, 2020|Tags: |

Canada is in full emergency mode in its bid to flatten the pandemic curve.  But so far the federal government has not declared a federal state of emergency in terms of the Emergencies Act[1], although it has discussed publicly the pros and cons of taking this step and has been urged to do so on the basis that such a declaration would enable a nationwide testing program.  There are four main reasons for this hesitation to declare a national state of emergency.

Call for Blog Posts

By |April 26th, 2020|Tags: |

The Centre for Constitutional Studies welcomes posts for our ‘Pandemic Powers and the Constitution Blog’. The Centre for Constitutional Studies is publishing a series of Blog posts exploring various constitutional issues arising from [...]