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Court hears legal challenge of the Yukon's Civil Emergency Measures Act

The courthouse in Whitehorse. (Jackie Hong/CBC - image credit)
The courthouse in Whitehorse. (Jackie Hong/CBC - image credit)

The Yukon's Civil Emergency Measures Act, used to create and enforce the territory's COVID-19 rules, was at the centre of a legal showdown last week with its adherence to democratic values called into question.

Lawyer Vincent Larochelle, representing seven plaintiffs suing the territorial government, argued in a Whitehorse courtroom last Thursday that the act, also referred to as CEMA, gives politicians too much power to make wide-reaching decisions without adequate oversight.

The plaintiffs, who include trucker Ross Mercer and drilling business-owner Trent Jamieson, took the Yukon government to court in 2020, alleging CEMA was unconstitutional and asking for it to be struck down. In affidavits, they alleged their livelihoods were negatively impacted by the Yukon's COVID-19 measures, which included restricting travel and limiting gathering sizes, with no means of appeal or recourse.

Larochelle described the case as "Homeric" — a sentiment not shared by the Yukon government's legal team.

"Much of what he says is a siren song," lawyer Catherine Boies Parker shot back on Friday, "and it's going to lead you into the rocks of legal error."

The government wants the lawsuit dismissed.

Decisions made without democratic oversight, lawyer argues

While the Yukon's COVID-19 response was a real-world example of how cabinet could use CEMA, Larochelle said the court also shouldn't "shy away" from imagining the potential scope of the law, including what might happen if a government with "autocratic tendencies" was in power.

CEMA, he argued, allowed the Yukon government to enact legislation and otherwise make major decisions in "secrecy" and without the need to debate or vote on them in the Legislative Assembly first — for example, declaring and then renewing the territory's COVID-19-related state of emergency.

Amplifying the problem, Larochelle argued, was the lack of a "safeguard" within the act, such as a provision allowing opposition party MLAs to summon the government to the legislature to justify its actions. He claimed the act, as a result, "unduly interfered" with and subverted the function of the Yukon Legislative Assembly.

CEMA, Larochoelle argued, "admits" the possibility that cabinet politicians don't need the Legislative Assembly to work, creating a system where there doesn't need to be accountability. Although someone could challenge CEMA decisions in court or in the media, he said, that wasn't a suitable replacement for "good democratic process."

"It's not just how things unfolded — it's how they could unfold," he said, describing the situation as "constitutionally intolerable."

"The last two, three years have shown this court, shown Yukoners, what CEMA is capable of."

He asked that CEMA, as a whole, be declared unconstitutional and of no force or effect.

Legislative Assembly, not court, should make changes, gov't says

Yukon government lawyer Boies Parker, in her reply, argued Larochelle couldn't point to any part of the Canadian Constitution inconsistent with CEMA.

The principle of democracy, Boies Parker continued, should sway the court away from interfering with CEMA. The act itself was a product of democratic process as it was passed by the Yukon Legislative Assembly and the same process, not a judge, should be used to change it, she said, noting the assembly voted down a Yukon Party bill to amend CEMA.

Boies Parker also challenged the assertion that CEMA left no room for oversight, pointing out that the territorial government's COVID-19 response — including the use of CEMA — was extensively discussed in the Legislative Assembly, including when MLAs unanimously voted to extend the territory's state of emergency.

As well, Boies Parker argued there were no constitutional problems with delegating authority.

"It is impossible for the legislature to do everything," she said, explaining it isn't always realistic for a government, in the context of an emergency, to recall the Legislative Assembly and hold rounds of debates and votes before acting.

She described COVID-19 as a "real emergency," particularly with the Yukon's limited health resources and isolated communities, with "real consequences" that required action.

Lawyer Alexander Kirby, Boies Parker's co-counsel, said the government opposed the granting of the plaintiffs' requested declarations, but that should CEMA be found unconstitutional, the court didn't need to strike down the whole act — just the sections related to decision-making powers.

Yukon Supreme Court Chief Justice Suzanne Duncan reserved her decision.