Seven people have filed a petition to the Yukon Supreme Court arguing that the territorial government’s COVID-19 border control and health orders, as well as the act under which they were made, are unconstitutional and should be struck down.
It’s the first formal legal challenge of the territory’s response to the global pandemic, and among the first legal challenges of a government’s COVID-19 response in Canada.
The petition, filed June 16, is seeking an order declaring that the Civil Emergency Measures Act, under which the Yukon government evoked a state of emergency and has been making related orders, is “inconsistent with the unwritten constitutional principles of Canada” and “grants arbitrary power” to the Yukon government, among other things.
It’s also seeking declarations that the border control measures order, which limits who can enter the Yukon, as well as the health protection order, which outlines self-isolation requirements, gathering limits and business opening restrictions, violate various sections of the Canadian Charter of Rights and Freedoms.
The sections allegedly violated include the ones protecting Canadians’ mobility and equality rights as well as the right to life, liberty and security.
As well, the petition is requesting a judicial review of the Yukon government’s June 12 decision to extend the territory’s state of emergency — an extension, it argues is not justified.
The Yukon government, Minister of Community Services and Attorney General of the Yukon are listed as respondents.
“Democracy works only on the condition that laws passed by government are subject to constant oversight and scrutiny by the legislature, the judiciary, the media, and the public,” the petition reads in part.
“The Respondent Yukon Government has exercised its powers since March 27, 2020 with an unprecedented lack of oversight, transparency, and accountability. It now proposes to continue doing so until September 2020.
“… The use of emergency powers for an extended period of time is fundamentally inconsistent with the principle of accountability that is vital to a functioning democracy. It is also antithetical to the nature of an emergency.”
Yukon government spokesperson Matthew Cameron wrote in an email the evening of June 16 that the government is reviewing the petition “and will address it before the Supreme Court of Yukon.”
The Yukon government has previously said it believes its border and travel restrictions, at the least, are a reasonable limit on Canadians’ mobility rights.
In a phone interview, lawyer Vincent Larochelle said the petitioners — Ross Mercer, Trent Andrew Jamieson, Douglas Craig Walker, Allan Patrick Mytrash, Martin Gregory Loos, Jan Erik Martensson and Clayton Robert Thomas — all have “some form of tie to the Yukon” via mining or construction businesses.
While they had been frustrated with the Yukon government’s previous implementation of COVID-19 measures and what they saw as a lack of transparency and accountability surrounding those decisions, Larochelle said the decision to extend the state of emergency was “the straw that broke the camel’s back, in a way.”
“They do bring this application, not for financial reasons … They bring it because they’re concerned about the turn that’s been taken by government and about the consequences the path on which we are embarked would lead to for the Yukon and the Yukon’s institutions of government,” he said.
The petition notes that some other provinces and territories’ legislative assemblies, as well as the federal government, have resumed sittings while the Yukon’s has remained closed since March, and that other jurisdictions with dozens of active COVID-19 cases have greatly eased restrictions on things like gathering sizes while the Yukon, with zero active cases, has not.
Larochelle said that while it was important to guard against the potential impacts of COVID-19 on Yukoners, it was also important to balance and limit the harm overly-harsh restrictions may be having too.
“There’s no doubt that we all want to be safe, but … the question is not whether these measures are keeping us safe. Rather, the question is, are we doing too much to keep ourselves safe? Are we overreaching? Because we have to understand that these measures also have significant impacts on the mental, emotional, financial and physical health of Yukoners,” he said.
Yukon Party MLA and justice critic Brad Cathers said in an interview that he wasn’t surprised that people have turned to the courts, accusing the Yukon government of having acted “secretively” throughout the pandemic and leaving people with no other options.
“If there are unprecedented restrictions being placed on Yukoners, the government should be transparent and provide them with information, all the information, about why those decisions are being made, and in the absence of transparency and democratic process, you are going to see citizens resort to the only option they have left, which is to take legal action,” Cathers said.
Contact Jackie Hong at jackie.hong@yukon-news.com