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Plaintiffs outline constitutional challenge to law used during COVID-19 emergency in the Yukon

In summary trial in March, court will hear arguments against the Civil Emergency Measures Act
The Yukon Supreme Court will hear a summary trial challenging the constitutionality of the territory’s Civil Emergency Measures Act next month. (Jim Elliot/Yukon News files)

A legal challenge claims the Yukon’s Civil Emergency Measures Act (CEMA) is incompatible with Canada’s Charter of Rights and Freedoms.

CEMA is the legislation that gave force to some measures the territorial government took during the COVID-19 pandemic. The challenge to it was filed in 2020 by Ross Mercer and six co-plaintiffs.

The matter is set to proceed to a summary trial on March 16 and 17. Represented by lawyer Vincent Larochelle, Mercer and his co-plaintiffs have filed an outline of what will be argued and presented at trial with the Yukon Supreme Court.

In the outline, the plaintiffs claim that CEMA’s fatal flaw is that it “legitimizes authoritarian government.” They claim the COVID-19 pandemic showed how CEMA allows unconstrained power for an “executive law-maker” and by its structure the legislation can allow those powers to persist for a long, and potentially indefinite, period of time.

“This Court is the watchdog of our Constitution. It cannot abdicate its responsibility to protect our constitutional order from the grave threats of a legal nature such as CEMA,” the outline reads.

“CEMA is inconsistent with our constitutionally mandated structure of government as informed by constitutional principles. This Court should say so. This Court must say so.”

The document lays out a brief history of the use of CEMA during the pandemic, from when the state of emergency was invoked on March 27, 2020 to when it terminated on March 16, 2022. The fact that decisions on declaring and extending the state of emergency were made by cabinet rather than the Yukon’s entire legislature is specifically criticized in the outline. It is noted that the Yukon legislature did not sit between March 19, 2020 and Oct. 1, 2020. In the outline, this situation where CEMA was in effect, but the legislature was not sitting is called “constitutionally intolerable.”

The outline claims that CEMA shares features with the federal government’s War Measures Act which has since been amended into new emergency legislation that is more in line with constitutional oversight. It also contrasts CEMA and the Yukon’s COVID-19 response with the emergency legislation of other jurisdictions and their response to the pandemic. The outline states that the Yukon was one of the only jurisdictions in Canada to rely on a civil state of emergency for nearly two years. It states that most other jurisdictions in Canada either never declared a state of emergency or quickly transitioned to a public health emergency.

Larochelle said that while the actions taken by other jurisdictions can be important in illustrating how the Yukon’s CEMA overstepped, they will not be essential to the arguments that the act is not constitutional.

Mercer and company are seeking a declaration from the court that CEMA is inconsistent with Canada’s constitutional principles. They want the act declared of no force and effect due to the inconsistency with the constitution. They are also seeking a declaration that section 10 of the act, which sets out to limit liability for governments and their agents that put emergency measures into effect, should those measures interfere with people’s rights, should also be of no force and effect.

With the state of emergency no longer in effect and accompanying restrictions rescinded months ago, Mercer says the constitutionality of CEMA remains an important subject for the court to rule on. He thinks there is broad agreement the act needs to be reformed to take the possibility of a long-term situation like the COVID-19 pandemic into account.

“I think if the government initiates the emergency measures act and, you know, steps into people’s lives in a way that restricts your mobility and, you know, has a real, very real impact on people’s personal lives with unintended consequences. They need to know that at the end of the day when the dust settles, there’s going to be full disclosure, transparency, and they’re going to be accountable,” he said.

Mercer called the situation in 2020 a sidelining of democratic processes and said things should be set up to ensure legislative oversight in a future situation where emergency powers are invoked.

Mercer says that although he thinks everyone in the territory was impacted in some way by the COVID restrictions under CEMA, the grounds for launching the legal challenge are not based on any particular hardship that he or his co-plaintiffs faced. Rather, he sees it as a way of holding the government accountable and maintaining the functioning of democracy. He added that he and his co-plaintiffs are not seeking any damages or other payment besides the coverage of their legal fees and that they are not claiming that the politicians and other decision makers had any ill intent in drafting or invoking the act.

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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