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Court hears arguments on constitutionality

Two-day hearing deals with Civil Emergency Measures Act
The Yukon Supreme Court heard a case challenging the constitutionality of emergency legislation employed during the Yukon’s COVID-19 response on March 16 and 17. (Jim Elliot/Yukon News)

Following days-long arguments, the Yukon Supreme Court will consider whether the emergency measures law used in the Yukon’s COVID-19 pandemic response conforms with Canada’s constitution.

The constitutional challenge to the Yukon’s Civil Emergency Measures Act (CEMA) was brought by a group of plaintiffs led by Ross Mercer and represented in the courtroom by lawyer Vincent Larochelle in a summary trial on March 16 and 17.

Arguing in CEMA’s defence were out-of-territory lawyers Catherine Boies Parker and Alexander Kirby.

The case was heard by Yukon Supreme Court Chief Justice Suzanne Duncan.

The summary trial saw each side deliver arguments that were light on facts but peppered with case law on topics as broad as the role of parliament in government and as narrow as specific Canadian provinces’ COVID response.

As his argument began to shape up Larochelle said he was taking the court on a “legal reasoning journey of Homeric proportions,” to prove CEMA’s unconstitutionality.

Boies Parker would later riff on this, suggesting that Larochelle was spinning a “siren song” that would lead the court onto “the rocks of legal error.”

Presenting to the court on March 16, Larochelle acknowledged that the matter was largely a legal question, but also discussed actions taken by the Yukon cabinet while CEMA and the accompanying state of emergency were in effect. He said these facts are important because they show what the law is capable of.

While he acknowledged that emergency actions by government can be legitimate, Larochelle argued that the law as it is currently on the books could legitimize a government with autocratic tendencies whether the legislature is sitting or not. He said that the actions taken by the Yukon’s cabinet empowered by CEMA amount to the passing of primary legislation without oversight from the rest of the MLAs and therefore subvert existing checks and balances by allowing decisions to be made secretly by premier and cabinet rather than openly in the legislature.

Another feature of CEMA that Larochelle argued speaks to its unconstitutionality is the lack of time, procedural and other limits written into it. The pandemic state of emergency was renewed by the legislature, but Larochelle argued that there is nothing in the text of CEMA requiring this approval for the state of emergency to persist.

Anticipating an argument the opposing lawyers would advance the following day, Larochelle acknowledged that CEMA was initially enacted by the legislature but he argues that that doesn’t make it automatically constitutional.

The following day the court heard arguments from the Yukon government’s lawyers.

The crux of their case was that court-ordered alterations to CEMA would interfere with the Yukon legislature’s core competence. The lawyers argued that Mercer and his co-plaintiffs are asking the judge to design emergency legislation in an unprecedented way and that it is up to the legislature, not the courts, to decide the shape and scope of emergency powers for the government’s executive.

Boies Parker noted that the law was enacted by the Yukon legislature and also said laws with similar structures in other jurisdictions have been upheld when challenged in the courts.

“They’re asking you to impose constraints on the executive’s authority to delegate that no court has imposed before,” she said.

She argued that delegation of power to the executive is not inherently dangerous and described it as “the life blood of the administrative state.” She later added that there’s nothing in the text of the constitution that eliminates the ability to delegate emergency powers.

“CEMA is a product, not of an interference with the democratic process but of the democratic process itself,” she said.

Boies Parker argued that there is no basis for the court to interfere with the Yukon legislature’s decision on the drafting of the emergency legislation. She also noted that the legislature retains the ability to rewrite or revoke the law.

Kirby delivered arguments for the government asking the court not to consider some portions of Mercer’s affidavit filed before the court as they are presenting arguments rather than facts. Larochelle had conceded earlier that some portions of the affidavit flagged by the defence are argument but said that others should stay in as they illustrate how Mercer was feeling as a citizen amid the Yukon’s emergency response to COVID.

Duncan reserved her decision on the matter.

Contact Jim Elliot at

Jim Elliot

About the Author: Jim Elliot

I’m a B.C. transplant here in Whitehorse at The News telling stories about the Yukon's people, environment, and culture.
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