The Yukon government has filed a response to a legal challenge of an extension to the territory’s state of emergency under COVID-19, arguing that the decision was grounded in reality and legislation. (Yukon News file)

Extension to state of emergency justified, Yukon government says in reply to legal challenge

The Yukon government has filed a response to a legal challenge of an extension to the territory’s state of emergency under COVID-19, arguing that the decision was grounded in reality and legislation.

The response, filed Sept. 25, comes about two weeks after six Yukon residents and a seventh person with Yukon ties filed a petition to the Yukon Supreme Court seeking a judicial review of the decision to extend the territory’s state of emergency by 90 days.

The petitioners allege the June 12 decision was “unreasonable or egregious,” “inconsistent with and fails to properly interpret” the territory’s Civil Emergency Measures Act (CEMA) and was also made without adequate transparency or justification.

(The document was filed before the Yukon extended its state of emergency for a second time Sept. 9.)

While the petition named the territory’s minister of community services and attorney general as respondents, the Yukon government’s reply says that the “only proper respondent” for the matter is the commissioner in executive council.

“The Commissioner in Executive Council exercised its discretion to extend the state of emergency … in light of its opinion that the ongoing COVID-19 global pandemic was a peacetime disaster under the Civil Emergency Measures Act,” the response reads in part.

“In their challenge to the Extension, the petitioners essentially ask the court to substitute the petitioners’ own view of the COVID-19 global pandemic for the opinion of Cabinet.

“The petition should be dismissed.”

Among other things, the response outlines the limited ability for the Yukon’s healthcare system to manage an outbreak of COVID-19, noting that Whitehorse General Hospital is the only facility in the Yukon with intensive care capabilities. Even then, according to the response, the hospital can only safely manage five COVID-19 patients requiring ventilators at a time and only for three to four days due to limitations on oxygen supply, with hospitals in Dawson City and Watson Lake lacking the resources to care for patients with severe symptoms at all.

That’s in the context of a steadily-escalating situation both internationally and nationally that’s seen the government reacting in-line with other jurisdictions and authorities, according to the response.

The Yukon, it notes, declared a state of emergency on March 27 after four local cases were discovered, which is about the same time that eight other provinces and territories also declared states of emergency and the federal government closed all non-essential travel across the U.S. border.

In May, the timeline continues, the government published its staged reopening plan. The territory’s chief medical officer of health also gave a public presentation on COVID-19 modelling indicating that without public health measures in place, and assuming community transmission occurs, a single COVID-19 case could grow to 1,946 cases in 66 days

In June, eight provinces, as well as the Yukon, renewed their states of emergency.

“COVID-19 case counts in neighbouring jurisdictions rose significantly between Yukon’s initial declaration of emergency in March and the Extension in June,” the response says, noting that, at the time, there were more than 97,000 cumulative cases in Canada and two million in the U.S., with 600 of those in Alaska.

“… There continued to be over 30,000 active cases of COVID-19 in Canada including hundreds in British Columbia and Alberta a the time of the Extension. In the days leading up to the Extension, hundreds of Canadians continued to contract the virus each day.”

There have been a handful of COVID-19 cases in the Yukon since then.

CEMA, the response argues, grants “a broad discretionary power” for the commissioner to declare or extend a state of emergency if cabinet believes that a peacetime disaster exists. “Peacetime disaster,” it says, is also broadly defined as a “real or apprehended disaster resulting from … epidemic or any other disaster whereby injury or loss may be caused to persons or property in the Yukon.”

It dismisses the petition’s concerns that there was inadequate transparency around the decision to extend the state of emergency, noting that the only procedural requirement or guideline contained with the act is that extensions are brought “promptly to the attention of the inhabitants of the relevant area.”

The Yukon government fulfilled this duty, the response argues, when it held a press conference, issued a press release on its website and reached out to municipal governments and First Nations about the extension on June 12.

“The petitioners were not entitled to a hearing, consultation, formal reasons or other participatory rights in relation to the Extension,” the response reads.

Elsewhere, the response states that “the context of the decision outlined above makes clear that Cabinet’s decision to extend the state of emergency on June 12, 2020 was neither egregious nor unreasonable.”

The case has not yet been heard by a judge.

Contact Jackie Hong at jackie.hong@yukon-news.com

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