ROSS MERCER TRENT ANDREW JAMIESON DOUGLAS CRAIG WALKER ALLAN PATRICK MYTRASH MARTIN GREGORY LOOS JAN ERIK MARTENSSON CLAYTON ROBERT THOMAS PLAINTIFFS v. THE GOVERNMENT OF YUKON, 2023 YKSC 59

SUPREME COURT OF YUKON Citation: Mercer v Yukon (Government of) , 2023 YKSC 59 Date: 20231103 S.C. No. 20-A0032 Registry: Whitehorse BETWEEN: ROSS MERCER TRENT ANDREW JAMIESON DOUGLAS CRAIG WALKER ALLAN PATRICK MYTRASH MARTIN GREGORY LOOS JAN ERIK MARTENSSON CLAYTON ROBERT THOMAS PLAINTIFFS AND THE GOVERNMENT OF YUKON MINISTER OF COMMUNITY SERVICES OF THE YUKON TERRITORY ATTORNEY GENERAL OF THE YUKON TERRITORY DEFENDANTS Before Chief Justice S.M. Duncan Counsel for the Plaintiffs Vincent Larochelle Counsel for the Defendants Catherine J. Boies Parker, KC, and Alexander Kirby REASONS FOR DECISION I.

OVERVIEW [ 1 ] The civil state of emergency declared in the Yukon in response to the COVID-19 pandemic between March 2020 and March 2022 [1] was unprecedented. This

summary trial application is about the constitutionality of the legislation ( Civil Emergency Measures Act , RSY 2002, c 34 (“ CEMA ”)) that authorized this declaration, and the exercise of certain powers by the Minister of Community Services and the Executive Council, also referred to as Cabinet. The plaintiffs say CEMA is unconstitutional because it allowed the Executive Council in the Yukon to govern during the state of emergency without any effective oversight by or accountability to the legislature, or review by the judiciary. [ 2 ] Determining this question requires an understanding of legal principles that have developed over years of constitutional

interpretation. The principles relate to the structure and inter-relationship of the three branches of government – legislative, executive, and judicial – and the nature of emergency circumstances, understood in the context of the CEMA legislation, and the facts of the pandemic in the Yukon. [ 3 ] The plaintiffs seek a declaration that CEMA is inconsistent with constitutional principles and norms and as a result is of no force and effect, to the extent of the inconsistency.

They further seek a declaration that s. 10 of CEMA is of no force and effect because it ousts the jurisdiction of this Court. [ 4 ] The plaintiffs argue that CEMA represents an unconstitutional surrender of Yukon legislative authority. The plaintiffs say the

Yukon Act, SC 2002, c 7 (the “ Yukon Act ” ), including the

preamble referring to responsible government, creates a legislature designed to make policy choices in the context of the rule of law, democracy, Parliamentary sovereignty, responsible government and the separation of powers, some of the unwritten principles emanating from the Constitution Act, 1867 . The plaintiffs say these principles inform the structure set out in the Yukon Act establishing the three separate branches of government.

The plaintiffs argue that CEMA is unconstitutional because it allows the executive branch of the Yukon to decide policy and make law without any effective oversight by or accountability to the legislature or the judiciary. [ 5 ] The defendants acknowledge that CEMA conveys extraordinary powers. But this is consistent with Canadian authority that upholds the ability of legislatures to delegate broad powers, particularly in emergency circumstances, and to limit the liability of the Crown.

The defendants say that nothing in CEMA infringes the accountabilities of the responsible Minister, the Cabinet, and the legislature, nor does it remove the jurisdiction of the Court. CEMA is the product of the deliberations of a democratically elected body. [ 6 ] The plaintiffs’ application is dismissed. Authoritative jurisprudence supports the ability of the legislature to delegate a broad range of powers to the executive branch. Nothing in the text of the Yukon Act prevents the delegated powers set out in CEMA . That delegation of power is the result of the democratic process by which CEMA was enacted.

The powers are constrained by the limits in CEMA itself – a temporally limited state of emergency and the authorization of only those orders or acts considered advisable for the purpose of the state of emergency. Judicial review is preserved and can be used to challenge executive orders that violate the Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982 (the “ Charter ”) or that exceed the parameters of CEMA . The elimination of certain causes of action for damages or certain judicial remedies is not sufficient to constitute an ousting of the jurisdiction of the court. [ 7 ] The plaintiffs are asking this Court to intervene inappropriately into the democratically elected legislature’s choices about how to govern the Yukon in the context of an emergency.

There is nothing in the text of the Yukon Act , or in the unwritten constitutional principles, or in the jurisprudence interpreting delegation of powers by the legislature, that authorizes this Court to invalidate CEMA for the reasons provided by the plaintiffs. II. FACTUAL BACKGROUND AND CONTEXT [ 8 ] Cases of COVID-19 were first reported in China in late 2019. COVID-19 is a virulent communicable air-borne respiratory disease that in some cases has caused severe illness and death. The first confirmed case appeared in Canada in January 2020.

As of December 2022, over 48,000 people in Canada had died from COVID-19 and over 4.4 million people had been infected. The World Health Organization (“WHO”) announced on March 11, 2020, that COVID-19 was a global pandemic, meaning it was an infectious disease spreading significantly in multiple countries around the world at the same time. It was not until May 2023 that the WHO stated COVID-19 no longer qualified as a global health emergency. [ 9 ] In the beginning, little was known about the virus. Decisions to protect public health were made on the basis of incomplete and evolving information.

Government responses in the Yukon, as elsewhere, included public health measures as well as financial and other relief from the economic consequences of the pandemic. [ 10 ] The Yukon has particular characteristics that informed government responses to the COVID-19 pandemic.

It is geographically isolated and has a small population; the health care system has limited capacity due to a restricted number of hospital beds and ventilators, and an insubstantial oxygen supply; it depends on visiting medical specialists and regular medical evacuations of patients with acute needs to larger centres in adjacent provinces; and there are vulnerable people throughout the Yukon and particularly in the Yukon communities, including First Nation people, many of whom were at greater risk of negative outcomes from COVID-19. [ 11 ] On March 18, 2020, the Yukon Chief Medical Officer of Health declared a public health emergency under the Public Health and Safety Act , RSY 2002, c 176 (“ Public Health and Safety Act ”). [ 12 ] On March 19, 2020, the Legislative Assembly (the “Legislature”) unanimously adopted a special Order to adjourn until October 1, 2020.

The standing committees of the Legislature continued to meet remotely over the summer of 2020. [ 13 ] On March 27, 2020, the Yukon Executive Council declared a state of emergency under s. 6(1) of CEMA . The declaration of the state of emergency must occur before powers under CEMA can be exercised. [ 14 ] On June 12, 2020, the state of emergency was extended by the Executive Council for 90 days. Further 90-day extensions occurred on September 9, 2020, December 7, 2020, March 3, 2021, and May 27, 2021. The state of emergency ended on August 25, 2021.

Then on November 8, 2021, a new state of emergency was declared as a result of the increased spread of COVID-19 at that time. It was renewed on February 3, 2022, but ended before the 90 days had expired, on March 17, 2022. [ 15 ] When the Legislature resumed sitting on October 1, 2020, the following motion was introduced: “[t]hat this House supports the current state of emergency in Yukon”. The sixteen members of the Legislature unanimously passed the motion on November 18, 2020, after vigorous debate on the motion itself and various proposed amendments.

Between October 14 and November 18, 2020, four amendments were made to the motion, and all were defeated after debate. [ 16 ] On December 4, 2020, the Minister of Community Services moved another motion: “That it is the opinion of this House that the current state of emergency, established under the Civil Emergency Measures Act and expiring on December 8, [2020], should be extended.” A proposed amendment was debated and defeated and this main motion was carried unanimously. [ 17 ] On December 8, 2020, a motion to create a Special Committee on Civil Emergency Legislation was passed unanimously.

The committee was established by an Order of the Legislature to consider and identify options for modernizing CEMA , as well as to make recommendations on possible amendments. The Special Committee held public hearings to receive views and opinions of Yukoners and was authorized to call for persons, papers and records, and to sit during intersessional periods. [ 18 ] Meanwhile, on November 30, 2020, Bill No. 302, an “ Act to Amend the Civil Emergency Measures Act ” was introduced. It

proposed the following amendments to CEMA : increase legislative scrutiny over extending a state of emergency; require review of Ministerial Orders by the Legislature or a committee of the Legislature; and allow for more public input by having committees of the Legislature conduct public hearings on regulations and Ministerial Orders.

This bill was defeated after first reading. [ 19 ] On May 25, 2021, Bill No. 300 was introduced, proposing similar amendments to those that had been introduced in Bill No. 302 in November 2020 and defeated. [ 20 ] Then on March 7, 2022, a new Bill No. 302 entitled “ Act to Amend the Civil Emergency Measures Act (2022) ” was introduced. It contained the same proposed amendments as the first Bill No. 302 introduced and defeated in November 2020, and the amendments in Bill No. 300 introduced on May 25, 2021.

It added more language about legislative oversight similar to the federal Emergencies Act , RCS 1985, c 22 (4 th Supp.).

This new Bill No. 302 was defeated at second reading, after significant debate. [ 21 ] On March 10, 2022, Bill No. 300 introduced on May 25, 2021, was removed by the Speaker from the Order Paper because it was similar to Bill No. 302 which had just been defeated. [ 22 ] On March 17, 2022, the Yukon government announced the end of its state of emergency. [ 23 ] On March 18, 2022, the Yukon government announced it was reviewing CEMA and the Public Health and Safety Act , to identify gaps, capture best practices, and identify areas for improved coordination through engagement with First Nations governments, municipalities and stakeholders throughout the Yukon.

This was after a mandate letter dated July 5, 2021, was sent by the Premier to the Minister of Community Services, requesting that the Minister along with the Department of Health and Social Services review CEMA and the Public Health and Safety Act to improve Yukon’s ability to address future emergencies. [ 24 ] During the two states of emergency, the Minister of Community Services enacted many different orders affecting a broad range of subject areas, including but not limited to border closures, quarantines, government contracts and leases, limitation periods, licensing, and social assistance.

None of the orders remains in effect. They lapsed with the termination of the state of emergency in March 2022. [ 25 ] The Yukon government prepared a Yukon Government Pandemic Co-ordination Plan providing a framework guiding the Yukon government preparedness for and response to a health pandemic in or affecting the Yukon. It is publicly available and came into effect in March 2020. It is an accompaniment to another document, Yukon Government Emergency Co-ordination Plan dated December 2011, also publicly available.

In addition, a plan entitled: “A Path Forward: Yukon’s plan for lifting COVID-19 restrictions” was released publicly in 2020 and updated in August 2021.

It outlined the government’s response to COVID-19. [ 26 ] The affidavit of Ross Mercer, relied on by the plaintiffs, describes the progress of COVID-19 in the Yukon; the effect of some of the executive orders made under CEMA , especially those related to travel and border restrictions, on him and his business; the inadequacy of the Legislature’s oversight and involvement in the executive’s repeated declarations of states of emergency and the making of orders; the positions taken by and the role of the opposition parties during the states of emergency; and a comparison of the Yukon with other jurisdictions in the timing and process of declaring states of emergency and timing of the closure of the legislature.

His affidavit sets out his perspective as a member of the public, whose business was negatively affected by the imposition of executive orders during the states of emergency, on the content of the orders and the process followed in the making of the orders. [ 27 ] The affidavit of Stephen Mills, relied on by the defendants, corrected some of the information in the Ross Mercer affidavit about the timing of adjournments of the legislatures in other jurisdictions and whether they declared civil emergencies or public health emergencies. I accept the defendants’ clarifications and corrections, based on Mr.

Mills’ position as Deputy Minister of the Executive Council Office and Cabinet Secretary and independent verification through publicly available information. [ 28 ] Contrary to the plaintiffs’ statement that the Yukon Legislature was adjourned for a longer period of time than any other jurisdiction, the legislature of Nova Scotia was adjourned between March 10, 2020, and March 9, 2021, except for one day in December 2020. [ 29 ] The following provinces and territories declared civil states of emergency over the following time periods: • Nova Scotia – March 22, 2020-March 20, 2022; • Saskatchewan – March 18, 2020-July 9, 2021; and September 13, 2021-March 14, 2022; • New Brunswick – March 19, 2020-July 30, 2021; and September 24, 2021-March 14, 2022; • Manitoba – March 20, 2020-October 21, 2021; • British Columbia – March 18, 2020-June 30, 2021; • Ontario – March 17, 2020-July 24, 2020; January 14, 2021-February 9, 2021, and April 7, 2021-June 9, 2021; • Prince Edward Island – April 16, 2020-June 28, 2020; • Northwest Territories – March 24, 2020-July 7, 2020, and in the City of Yellowknife, November 6, 2020-March 3, 2022; • Nunavut – in the City of Iqaluit May 4, 2021-December 9, 2021. [ 30 ] Other provinces declared public health emergencies that were generally in effect for approximately a two-year period between March 2020 and the spring of 2022.

III. PRELIMINARY MATTERS A. Propriety of Parts of the Ross Mercer Affidavit [ 31 ] The defendants object to many of the paragraphs in the affidavit of Ross Mercer because they contain hearsay, opinion, and argument. The defendants say these paragraphs contravene Rule 49(12) of the Rules of Court of the Supreme Court of Yukon and the law related to affidavits. [ 32 ] Counsel for the plaintiffs conceded that several of the paragraphs contained opinion or argument and that they should be disregarded. [ 33 ] Generally, affidavits are to set out facts without gloss or explanation.

A basic rule for affidavit evidence is that a deponent should state relevant facts only, without gloss or explanation (Duyvenbode v Canada (Attorney General) , 2009 FCA 120 ). If opinion is to be given, the affiant should be qualified as an expert to give the opinion and its foundation should be provided ( Ross River Dena Council v The Attorney General of Canada, 2008 YKSC 45 (“ Ross River Dena Council ”) at para. 12, quoting from Johnson v Couture , 2002 BCSC 1804 at paras. 13-16 ).

This Court at para. 11 of the Ross River Dena Council decision also adopted the finding in Chamberlain v the School District No. 36 (Surrey) , [1998] BCJ No. 29232 (SC) at para. 28 : “Personal opinions or a deponent’s reactions to events generally should not be included in affidavits”.

The court in that case further stated “argument on issues from deponents serves only to increase the depth of the court file and to confuse the fact-finding exercise.” Argument should not be submitted in the “guise of evidence”. [ Yukon Big Game Outfitters Ltd v Yukon (Government of) , 2021 YKSC 51 at para .17]. [ 34 ] Only statements that would be permitted as evidence at trial should be included. Opinion is generally not acceptable unless it is in the form of expert opinion.

Argument is not fact and should be reserved for written or oral submissions. [ 35 ] Hearsay evidence is admissible in an affidavit, if it is on information and belief and submitted as part of a pre-trial record or admitted with leave of the Court (Rule 49(12)). [ 36 ] In this case, I agree with the defendants that paras. 28, 29, 36, 37, 56, 67, 71, 75, 95, 96, 97, 98, 99, 109, 110, and 111 constitute argument. If this were evidence attempted to be given by Mr. Mercer at trial, it would be given no weight.

I will not give these paragraphs weight as a result ( Ross River at para. 16). [ 37 ] Paragraphs 33, 60, and 64 are challenged on the basis of opinion. I will allow these paragraphs to remain and be considered. They contain factual information and also describe the impacts on Mr. Mercer of some of the orders made under CEMA and the events that occurred under CEMA . His description of events does not contravene the rule against opinion evidence. [ 38 ] Paragraphs 11, 12, 59, 61, and 70 are challenged because they constitute hearsay evidence.

Paragraphs 11 and 12 are on information and belief and describe the negative impact of the border closures and travel restrictions on the drilling business of one the other plaintiffs, Trent Jamieson. His business was forced to operate short-handed on a number of projects because they could not access workers in neighbouring jurisdictions. In Mr. Jamieson’s view this restriction was unnecessary because of the business’ remote work environment. It is not explained why Mr.

Jamieson did not file his own affidavit, although perhaps it was for reasons of efficiency. [ 39 ] This is not a pre-trial record and leave to admit was not sought under Rule 49(12). I am unable to give any weight to these paragraphs. However, I note that Mr. Mercer stated clearly in other sections of his affidavit the negative effect of the border closures and travel restrictions on Yukon businesses, and I accept that evidence. [ 40 ] Paragraphs 59, 61, and 70 describe the positions of the opposition parties and in one instance what they were told by the government.

Although these three paragraphs are strictly hearsay, and no leave was sought under Rule 49(12), I will give them weight on the principled exception to the rule against hearsay of reliability and necessity. The attached newspaper articles as well as the Hansard excerpts in the record provide objective verification of the positions of the opposition parties. It would be onerous for the plaintiffs to provide affidavits from various members of the Legislature. The summaries set out in these paragraphs are helpful context. B.

Who is the Minister under CEMA ? [ 41 ] The plaintiffs argue that one of the many inadequacies of CEMA is that the Minister to whom the powers are delegated is not defined. The defendants note that the definition is found in s. 21 of the

Interpretation Act , RSY 2002, c 125 . It defines Minister as “the member of the Executive Council charged by order of the Commissioner in Executive Council with responsibility for the exercise of powers under the enactment”. In this case the Government Organisation Act

Schedule , OIC 2014/174, assigned responsibility for the exercise of powers under CEMA to the Minister of Community Services. IV. LEGISLATIVE CONTEXT [ 42 ] The Constitution of Canada describes how Canada governs itself. It takes precedence over all other laws in the country. If a government passes a law that controverts the Constitution, it may be challenged in court and the court can declare all or part of that law unconstitutional and that it has no effect. [ 43 ] The Constitution of Canada is partly written and partly unwritten. An important part of the written Constitution is the Constitution Act, 1867 .

It created the Dominion of Canada and it describes the structure of Canada’s government and how powers are divided between the federal and provincial governments.

[44] An other significant written part of the Constitution is the Constitution Act, 1982. It patriated the Constitution from the BritishParliament, and contains the Charter, protection of Aboriginal rights, and an amending formula. While the 1982 Constitution as well ascertain other laws form part of the Constitution of Canada, they are not relevant to this case. [45] The unwritten part of the Constitution exists in part because the Constitution Act, 1867 is based on the Constitution Act of theUnited Kingdom, which is completely unwritten and consists of principles and conventions.

Courts are responsible for interpretingunwritten constitutional principles, which have been described as “assumptions upon which the text is based” (Reference re Secession ofQuebec, (SCC), [1998] 2 SCR 217 (“Reference Secession”) at para. 49). These principles are described further below. [46] The Constitution Act, 1867 establishes three branches of government – the legislature, the executive and the judiciary.

All three branches have distinct institutional capacities and play critical and complementary roles in our constitutional democracy.However, each branch will be unable to fulfill its role if it is unduly interfered with by the others. … [Ontario v Criminal Lawyers’Association of Ontario, 2013 SCC 43 at para. 29] [47] The Constitution Act, 1867 establishes a central federal government as well as ten provinces. As noted above, there is anexclusive division of powers between the federal government (s. 91) and the provincial governments (s. 92).

The three northernterritories do not have provincial status and are not included in this constitutional division of powers (Pamela Muir, “The ConstitutionalStatus of Yukon – A Normative Analysis” (2020) 50 The Northern Review 7(“Muir article”)). [48] The territories are established by Acts of Parliament. In the Yukon, the federal Yukon Act sets out the powers of the Yukongovernment. These powers are similar to the powers given to the provinces in s. 92 of the Constitution Act, 1867. Sections 17-23 of theYukon Act describe the powers of the Legislature.

Section 18 itemizes many of those powers.

Section 20 connects the Yukon Act to theConstitution Act, 1867 by saying that nothing in s. 18 shall be construed to give the Legislature greater powers than are given to thelegislatures of the provinces by ss. 92, 92A, and 95 of the Constitution Act, 1867. [49] The Yukon Act can be abolished or amended by Parliament. The Legislature cannot amend the Yukon Act, because it is federallegislation. The plaintiffs suggest the Legislature is not a plenary body like Parliament or the provincial legislatures, because the YukonAct contains further restrictions.

Specifically, the federal government can disallow any law or portion of any law within one year after itis made (s. 25(2)); federal laws prevail in the event of a conflict with territorial laws (s. 26) – a codification of the unwritten principle ofparamountcy; and the Legislature’s powers to appropriate funds authorized by Parliament to defray public service expenses and to passany legislative instrument to appropriate public revenue or tax is constrained (ss. 29 and 30).

The Yukon Act also requires that the federalgovernment consult with the Executive Council in the Yukon before any amendment or repeal of the Yukon Act, (s. 56(1)) and theLegislature may make recommendations to the federal minister about amendment or repeal (s. 56(2)).

These statutory protections, alongwith the facts that 1) Parliament has never attempted to amend or repeal the Yukon Act unilaterally; 2) the Yukon Act is inextricablyconnected with the operation of the Yukon First Nation final agreements, which have constitutional protection; and 3) the Yukon hasevolved to having a fully representative, responsible public government, functioning like a province, means there is a strong argumentthat the Yukon Act operates like the Constitution in the Yukon (Muir article, at 14, 16,18, and 20). [50] However, the constitutional status of the Yukon Act has not been considered by the courts.

This issue is not directly before me inthis litigation and I do not decide it here. The plaintiffs did not fully develop or pursue their argument that the Legislature is not a plenarybody under the Yukon Act or that the Yukon Act may offer less protection for the fundamental structure of the institutions of governancethan the Constitution Act, 1867. Further, the plaintiffs relied in their oral argument on the text of the Yukon Act for their argument thatCEMA is unconstitutional.

The plaintiffs also rely on the unwritten principles emanating from the jurisprudence interpreting theConstitution. [51] The defendants do not object to the plaintiffs’ reliance on the Yukon Act, the Constitution Act, 1867 and the unwrittenconstitutional principles as well as the jurisprudence interpreting the Constitution and its principles for their argument that CEMA isunconstitutional. [52] I have accepted for the purpose of this litigation that the constitutional challenge to CEMA can be made on the basis of the YukonAct, the Constitution Act, 1867 and the jurisprudence related to the Constitution including unwritten constitutional principles.

V. ISSUES [53] The plaintiffs raise two main issues. The first is whether ss. 6-10 of CEMA create a constitutionally impermissible shift oflegislative power and authority to the executive, insulated from judicial review.

The second issue is whether s. 10 of CEMA ousts thecore jurisdiction of the courts by immunizing certain persons and the Crown from legal challenge to actions taken under CEMA as wellas by eliminating the remedies of injunction and mandamus on judicial review. [54] Sections 6, 7, and 8 of CEMA provide the mechanism for and timing of a declaration of a state of emergency and the impositionof a plan. For the first issue, the plaintiffs focus on s. 9 of CEMA, which describes the powers of government in a state of emergency asfollows: 9 Government may act in state of emergency

(1) Despite any other Act, when a state of emergency has been declared to exist under

section 6 or 7, the Minister may do all thingsconsidered advisable for the purpose of dealing with the emergency and, without restricting the generality of the foregoing, may (

a) do those acts considered necessary for

(

i) the protection of persons and property, (ii) maintaining, clearing and controlling the use of roads and streets, (ii) requisitioning or otherwise obtaining and distributing accommodation, food and clothing and providing other welfare services, (iv) providing and maintaining water supplies, electrical power and sewage disposal, (

v) assisting in the enforcement of the law, (vi) fighting or preventing fire, and (vii) protecting the health, safety and welfare of the inhabitants of the area; (

b) make regulations considered proper to put into effect any civil emergency plan; and (

c) require any municipality to provide assistance as considered necessary during the emergency and authorize the payment of the cost of that assistance out of the revenues of the Government of the Yukon. …

(3) Despite any other Act, when a state of emergency has been declared to exist under

section 6 or 7, every public servant and every member of the public service of the Yukon shall comply with the instructions and orders of the Minister in the exercise of any discretion or authority the public servant or public officer may have for and on behalf of the Government of the Yukon, whether statutory, delegated or otherwise, for responding to and dealing with the emergency. [ 55 ] The second issue focuses on s. 10, which limits the liability of the Crown, municipalities, or other persons acting within the authority provided to them under CEMA , for acts done or not done in respect of the emergency.

Section 10 provides: 10 Limitation of liability When a state of emergency has been declared to exist under

section 6 or 7 the following persons are not liable for any damage caused by interference with the rights of others, and are not subject to proceedings by way of injunction or mandamus in respect of acts done or not done in respect of the emergency: (

a) a municipality or any person acting under the authority or direction of the Commissioner in Executive Council, the Minister or the civil emergency planning officer; (

b) a municipality or any person who does any act in carrying out a civil emergency plan under this Act; (

c) any person acting under the authority or direction of the municipality, its council, its civil emergency planning committee or its civil emergency co-ordinator; (

d) despite any other Act, the Crown;

(

e) any person acting under a regulation made under paragraph 9(1)(

b) or a bylaw made under paragraph 9(2)(c). VI. ANALYSIS Issue #1 – Does CEMA infringe the constitutional structure in the Yukon Act by shifting legislative power to the executive and preventing judicial review? A. Positions of the Parties

i) Plaintiffs [ 56 ] The plaintiffs say that CEMA is inconsistent with the structure of the Yukon Act that provides for three branches of government – legislative, executive, and judicial – each operating within their own sphere of activity. This structure is informed not only by the text of the Yukon Act but also by unwritten constitutional principles, identified by the plaintiffs as democracy, rule of law, separation of powers, responsible government, and parliamentary sovereignty.

These principles assist in interpreting the text of the Yukon Act , the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of political institutions ( Reference Secession at para. 52). The plaintiffs say a consideration of CEMA in the context of these principles and the text of the Yukon Act , reveals it as legislation that improperly interferes with the legislative and judicial realms, by giving powers or protections to the executive that intrude into those of the other two branches.

The plaintiffs say there are limits on the delegation of powers by the Legislature, limits that come from the constitutional text (i.e. the Yukon Act ) and unwritten constitutional principles. CEMA does not respect those limits and as such is unconstitutional. The plaintiffs refer to this as an improper delegation of the core competence of the Legislature. [ 57 ] The plaintiffs say CEMA gives the executive subjective and unfettered discretion that shifts the relationships among the three branches of government in a way that is inconsistent with the constitutionally mandated structure and operation of government.

The declaration by the executive of the state of emergency and the ability to order anything that is considered advisable in a state of emergency are decisions made by the executive on a subjective basis without any oversight by, input from, or accountability to the legislature.

The executive also remains improperly insulated from judicial review under CEMA , according to the plaintiffs. [ 58 ] More specifically, the plaintiffs describe the following four ways in which CEMA is unconstitutional. [ 59 ] First, the plaintiffs say CEMA allows the executive to decide policy, thereby encroaching on power and responsibility that belongs exclusively to the legislature. CEMA causes the legislature to abdicate its legislative role. [ 60 ] Second, the plaintiffs say CEMA contains no limit to the broad delegation of power to the executive.

It states “[d]espite any other Act, … the Minister may do all things considered advisable for the purpose of dealing with the emergency …” (s. 9(1)). The plaintiffs say this unlimited ability to legislate and override any other statutory instruments is not a transfer of limited discretionary authority or the implementation of a policy choice of the Legislature.

It is unconstrained, arbitrary, and an impermissible shift of legislative authority to the executive. [ 61 ] Third, the plaintiffs say s. 9 of CEMA grants the Minister the entire legislative competence of the Yukon Legislature and more: specifically, the power to do things and enact regulations beyond the powers contemplated in ss. 17 - 23 of the Yukon Act .

Examples are imposing quarantine and border closures. [ 62 ] Fourth, the plaintiffs say the failure of CEMA to ensure a degree of supervision by the Legislature over the delegation of its power results in an unconstrained and unchecked executive. [ 63 ] The plaintiffs advanced another argument during the oral hearing related to the text of the Yukon Act . Counsel said that the unwritten constitutional principles can be used to interpret ss. 17 - 23 of the Yukon Act , provisions that give certain powers to the Legislature. Further, the Yukon Act states in its

preamble that the “Yukon is a territory that has a system of responsible government that is similar in principle to that of Canada” thereby codifying one of the unwritten constitutional principles, according to the plaintiffs. The combination of this text of the Yukon Act and the unwritten constitutional principles forms the basis for a declaration of unconstitutionality of CEMA in a way that is consistent with the defendants’

interpretation of the Toronto (City) v Ontario (Attorney General) , 2021 SCC 34 (“ City of Toronto ”) decision. ii) Defendants [ 64 ] The Yukon government denies that CEMA is unconstitutional. CEMA is a product of the democratic process, and its validity is consistent with a long line of authority in Canada that permits legislatures to delegate many of their powers to the executive with few restrictions. There is no support in the jurisprudence for the plaintiffs’ theory that a “core competence” of legislatures acts as a limit on their ability to legislate.

The defendants describe this legal challenge as consistent with these many other decisions that allow for the delegation of powers by legislatures; there is nothing unique here that renders those authorities inapplicable. Unwritten constitutional principles cannot be used on their own to invalidate legislation, as confirmed by the Supreme Court of Canada in the City of Toronto decision. [ 65 ] The defendants address each of the plaintiffs’ specific arguments as follows. [ 66 ] First, CEMA does not represent an abdication of legislative authority by allowing the executive to decide policy.

There are many examples in Canada of a statute’s delegation of a breadth of legislative powers, including the ability to decide policy, to the executive or other independent entities, the constitutionality of which has been confirmed by the courts. Further, the democratically elected Legislature duly enacted CEMA and the Legislature retains its ability to limit, amend, repeal, revoke CEMA or any part of it.

[ 67 ] Second, the powers delegated under CEMA are not arbitrary or without limits. CEMA sets out certain limits, such as the definition of emergency and the delegation of powers only in the context of an emergency. The executive can suspend or alter primary legislation through secondary orders (i.e. “[d]espite any other Act”) but only in an emergency and for the purpose of dealing with the emergency.

The jurisprudence confirms there is no constitutional prohibition against the delegation of powers by the legislature to the executive or an independent authority, even where those powers allow rules or laws to be made that prevail over inconsistent or conflicting existing legislation. Further, CEMA does not allow the executive to make changes to CEMA itself. The executive must act within the parameters of CEMA . [ 68 ] Third, s. 9 of CEMA does not grant the entire legislative competence to the executive because they are subject to the parameters set out in CEMA .

CEMA does not authorize unconstitutional exercises of power – i.e. powers beyond the scope of those given to the Legislature by the Yukon Act . Any such exercise would be subject to judicial review. [ 69 ] Fourth, there is no authority for the proposition that the Legislature must carry out an active supervisory role over the entity to which its powers are delegated.

The Legislature has an inherent supervisory authority over the exercise of delegated powers because it can alter or eliminate those delegated powers at any time. [ 70 ] Addressing the plaintiffs’ additional argument that the text of the Yukon Act combined with the unwritten constitutional principles can be used to challenge the constitutionality of CEMA , the defendants note for the above reasons, there is nothing in CEMA that offends the provisions of the Yukon Act , including the phrase “responsible government” in the

preamble and the specific powers outlined in ss. 17 - 23 . B. Unwritten constitutional principles – can they independently invalidate legislation? [ 71 ] The plaintiffs’ written argument that CEMA is unconstitutional relies on the unwritten constitutional principles for this invalidation. However, the current state of the law does not allow unwritten constitutional principles on their own to invalidate legislation. The differing

interpretations held by the plaintiffs and the defendants of the effect of the City of Toronto decision require further analysis here. [ 72 ] In the City of Toronto case, the Ontario legislature introduced new legislation ( Better Local Government Act, 2018 ) in the midst of a City of Toronto election campaign that reduced the number of members of City Council from 47 to 25 by reducing the number of wards. The City and two groups of individuals challenged the constitutionality of this legislation based on an infringement of s. 2(

b) of the Charter , freedom of expression. They also argued the legislation infringed the right to vote set out in s. 3 of the Charter .

Relevant to the case at bar was the further argument that the unwritten constitutional principle of democracy invalidated the legislation. [ 73 ] In holding that unwritten constitutional principles could not be used on their own to invalidate the legislation, the Supreme Court of Canada first referenced its previous decisions where it has recognized that our Constitution describes “an architecture of the institutions of state and of their relationship to citizens that connotes certain underlying principles … such as democracy and the rule of law” (para. 49).

The Court referenced their general description of the internal architecture of the Constitution in the Reference Secession case as a “‘basic constitutional structure’.

The individual elements of the Constitution are linked to the others and must be interpreted by reference to the structure of the Constitution as a whole” (at para. 50). [ 74 ] The unwritten principles such as democracy and the rule of law are not written in the text of the Constitution, but they are foundational and “it would be impossible to conceive of our constitutional structure without them” ( Reference Secession at para. 51 and City of Toronto at para. 49 ). “The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood” ( Reference Secession at para. 51; City of Toronto at para. 167 ).

They have full legal force that is context dependent. “Their legal force lies in their representation of general principles within which our constitutional order operates and, therefore, by which the Constitution’s written terms – its provisions – are to be given effect” ( City of Toronto at para. 54 ). The Court in City of Toronto identified two ways in which the principles can assist courts. [ 75 ] The first way is by providing an interpretive aid to the text of the Constitution where it is “not itself sufficiently definitive or comprehensive” to answer a question ( City of Toronto at para. 65 ).

For example, the principles of judicial independence and rule of law have helped to interpret ss. 96-100 of the Constitution in a way that safeguards the core jurisdiction of the courts. [ 76 ] The second way unwritten principles can assist is by developing structural doctrines that are not articulated in the text of the Constitution, but are necessary to the coherence of, and flowing by implication from, the architecture of the Constitution ( City of Toronto at para. 56 ). They can fill important gaps and address questions on which the Constitution is silent.

Examples of such structural doctrines developed through unwritten principles are the doctrine of full faith and credit, the obligation of the federal government to negotiate with a province once it has seceded, the suspension of a declaration of invalidity of legislation, and the doctrine of paramountcy ( City of Toronto at para. 56 ). [ 77 ] Here, one of the plaintiffs’ arguments is that the unwritten principles of rule of law, democracy, separation of powers, responsible government, and parliamentary sovereignty are sufficient to constitutionally invalidate CEMA .

They argue that these principles constitutionally prohibit the shift in power from the legislature to the executive that CEMA authorizes. Below in

section C, I will analyze the specific arguments raised by the plaintiffs. My comments in this

section are limited to an explanation of why the use of unwritten principles as a foundation for the invalidity attack does not fit into the two ways described by the Supreme Court of Canada in the City of Toronto case that unwritten principles can assist courts. [ 78 ] The plaintiffs argue that the finding in the City of Toronto decision that unwritten constitutional principles cannot on their own be used to invalidate legislation does not apply in this case. They say the deliberate omission of municipalities as part of the structure of governance in the Constitution is a distinguishing fact.

There is therefore nothing in the text of the Constitution to which the unwritten principles can apply in the City of Toronto case. The plaintiffs say that if the unwritten principle of democracy were found to invalidate the Better Local Government Act, 2018 (the provincial legislation at issue) this would in effect be an amendment to the Constitution

because it would require that municipalities be included as part of its structure. This is distinguishable from the case at bar, where thestructure of the Yukon Act includes the legislature, executive, and judicial branches, and the plaintiffs are challenging the shift of poweramong them. This textual anchor gives the unwritten principles a basis for the legal challenge.

The unwritten principles can also be usedas an interpretive aid to this text, one of the ways the Court states in City of Toronto that the unwritten principles can assist. [79] I agree with the defendants’ arguments in response that the plaintiffs’ analysis is a misreading of the City of Toronto decision.First, the Court in that decision reviewed all of the authorities that could be relied on to argue that unwritten constitutional principles canbe used to invalidate legislation and concluded after analysis that they cannot.

Legislative competence cannot be narrowed or limited bythe courts on the basis of unwritten principles such as democracy. In the City of Toronto, the Court noted that s. 92(8) of the Constitutiongives the province “absolute and unfettered legal power” to legislate with respect to municipalities (Ontario English Catholic Teachers’Assn v Ontario (Attorney General), 2001 SCC 15 at para. 58).

The courts cannot limit by relying on unwritten principles this provinciallaw-making authority that is part of the structure set out in the Constitution. [80] Second, the deliberate omission of municipalities in the structure of the Constitution is not a distinguishing fact that makes theCity of Toronto decision inapplicable to the case at bar.

The Supreme Court of Canada referred to this deliberate omission whenaddressing the argument that the legislation at issue violated s. 3 of the Charter, which guarantees citizens the right to vote and run foroffice in provincial and federal elections and includes a right to effective representation (City of Toronto at para. 45).

Section 3 does notextend to municipal elections. The Supreme Court of Canada concluded “there is no textual basis for an underlying constitutionalprinciple [such as democracy] that would confer constitutional status on municipalities, or municipal elections” (at para. 82). TheSupreme Court of Canada stated that if the unwritten principle of democracy required all elections to conform to the requirements of s. 3,including municipal elections, “the text of s. 3 would be rendered substantially irrelevant and redundant” (at para. 82).

To apply theunwritten democratic principle in this way would result in an amendment to the constitutional text. [81] In City of Toronto, the Supreme Court of Canada’s conclusion on the role of the unwritten principle of democracy in invalidatinglegislation was: [63] In sum, and contrary to the submissions of the City, unwritten constitutional principles cannot serve as bases for invalidatinglegislation. … and [78] In this case, the democratic principle is relevant as a guide to the

interpretation of the constitutional text. It supports anunderstanding of free expression as including political expression made in furtherance of a political campaign (Reference re Prov.Electoral Boundaries (Sask.); Reference re Alberta Statutes, (SCC), [1938] S.C.R. 100; Switzman v. Elbling, (SCC), [1957] S.C.R. 285; OPSEU). But it cannot be used in a manner that goes beyond this interpretive role.

In particular, it cannotbe used as an independent basis to invalidate legislation. [emphasis added] [82] The Supreme Court of Canada in the City of Toronto noted several reasons why unwritten principles cannot be relied on toinvalidate legislation.

I will address two of them here as they are most relevant to the case at bar. [83] First, there is a risk that reliance on principles that are “wholly untethered from the text” of the Constitution is an unwarrantedintrusion by the court into legislative authority to amend the Constitution, “thereby raising fundamental concerns about the legitimacy ofjudicial review and distorting the separation of powers” (City of Toronto at para. 58).

It is an invitation to the court to give theConstitution additional meaning well beyond the text, rather than limiting the use of unwritten principles to flesh out the existing text orestablish structural doctrines that flow coherently and implicitly from the existing text and architecture. [84] In the case at bar, the plaintiffs suggest that this Court rely on unwritten principles such as democracy, rule of law, separation ofpowers, and parliamentary sovereignty to invalidate legislation authorizing the executive to make orders in an emergency. [85] To do this would amount to an attempt to write into the Yukon Act a specific limit on the ability of the Legislature to legislate forthe Executive Council (s. 18(c)).

Not only is this a misuse of the unwritten principles, but the judicial imposition of such a limit isinconsistent with the developed jurisprudence about delegation of legislative powers. [86] Second, the Supreme Court of Canada in City of Toronto highlights the risks of the abstract nature and nebulous content of theunwritten principles. They can serve to decrease legal certainty and predictability, they may make existing principles in the Constitutionredundant, and they may undermine the boundaries or limits of the rights set out in existing text.

The Supreme Court of Canada says it ispreferable to contest legislation considered unfair or improper through the text of the Constitution or the ballot box. [87] Because of their nebulous, abstract character, the unwritten principles can be used in arguments that either support or invalidatethe legislation at issue, leading to the reduction in legal certainty. In this case I do not agree that the law supports the use of unwrittenprinciples to invalidate legislation on their own.

But even if they could be used in this way, or used to interpret the text of the Yukon Act,the unwritten principles support the position of the defendants in this case. [88] For example, the meaning of the rule of law, one of the principles relied on by the plaintiffs in the case at bar, was described bythe Supreme Court of Canada in British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49 (“Imperial Tobacco”), to have thefollowing characteristics: 1) the same laws must apply to everyone, including government officials; 2) there is law that exists; 3) thestate-individual relationship is regulated by law – that is, the relationship is legally founded.

Under this definition, the defendants canargue that CEMA does not offend the rule of law: it applies to everyone, its provisions are written, and the citizens’ relationship with thestate under CEMA is legally based.

[ 89 ] The plaintiffs argue that the state-individual relationship is not legally founded under CEMA because the statute’s allocation of power to the executive offends the existing architecture in the Yukon Act . The defendants counter that the existing jurisprudence (reviewed below) supports the delegation of powers in CEMA . I agree with the defendants’ analysis. [ 90 ] The plaintiffs also rely on parliamentary sovereignty as an unwritten principle to invalidate CEMA . They say the unchecked, unconstrained power CEMA gives to the executive undermines parliamentary sovereignty.

The defendants say that CEMA was duly passed by the Legislature. As noted in the case of R (on the application of Miller) v The Prime Minister , [2019] UKSC 41 (“ Miller ”) at para. 41, the Supreme Court of the United Kingdom stated that the constitutional principle of parliamentary sovereignty means that legislation itself (“laws enacted by the Crown in Parliament”), under the Constitution of the United Kingdom, remains “the supreme form of law”.

Similarly, in the decision of Reference re Pan-Canadian Securities Regulation , 2018 SCC 48 (“ Pan-Canadian Securities ”) at para. 73 , the Supreme Court of Canada described parliamentary sovereignty as the legislature’s authority to enact laws on its own and the authority to delegate, among other things, the power to make binding but subordinate rules and regulations, without restriction. In other words, “delegated power is rooted in and limited by the governing statute, which of course takes precedence over every exercise of power” (at para. 74).

The legislature must retain the authority to revoke the delegated power. [ 91 ] In the case at bar, CEMA gives the executive the ability to make orders “despite any other Act”, but this is circumscribed by CEMA itself. The executive must make orders within the parameters of CEMA and only the legislature retains the power to revoke or amend CEMA .

The defendants’ argument that CEMA is consistent with parliamentary sovereignty is supported by the content of CEMA . [ 92 ] The plaintiffs further agree that CEMA offends the democratic principle because of the inability of the Legislature to debate, discuss, amend, or revoke any of the provisions or their effects. [ 93 ] In fact, as the defendants note, proposed amendments to CEMA were introduced, debated, and ultimately defeated in the Legislature between October 14 and November 18, 2020. An all-party Special Committee on Civil Emergency Legislation was established to receive submissions and provide a report.

The Yukon government announced in March 2022 it was reviewing CEMA to improve its ability to respond in an emergency. Further, the Legislature unanimously voted in favour of a declaration of a civil state of emergency on two occasions. All of this is consistent with democracy. [ 94 ] Democracy guarantees parliamentary sovereignty ( Gateway Bible Baptist Church et al v Manitoba et al , 2021 MBQB 218 (“ Gateway Bible ”) at para. 32 ). Democracy has been described as “a political system of majority rule” ( Reference Secession at para. 63).

The Supreme Court of Canada has described it as “the process of representative and responsible government and the right of citizens to participate in the political process as voters” ( Reference Secession at para. 65). Democratic legislatures and an executive accountable to them require ongoing discussion, exchange of ideas, compromise and negotiation, and a consideration of all views and voices.

I agree with the defendants that the principle of democracy was upheld in this context. [ 95 ] These examples of the application of the unwritten principles to the facts in the case at bar show they can be used in arguments about invalidity of the legislation or in support of the legislation. In this case, the unwritten principles are more supportive of the defendants’ position.

In any event, the lack of legal certainty and predictability that arises is a significant and valid reason why they cannot be used on their own to support a constitutional challenge to the invalidity of legislation. [ 96 ] The plaintiffs’ oral argument that the unwritten principles aid in the

interpretation of the text of the Yukon Act , especially ss. 17 - 23 and the

preamble referring to responsible government, also suffers from its inconsistency with the prevailing jurisprudence (reviewed below). The jurisprudence shows that the delegation of powers in CEMA does not offend the structure of governance set out in Yukon Act . While responsible government does appear in the

preamble of the Yukon Act , converting it from an unwritten principle to a part of the written text, CEMA was democratically passed into law by the Legislature, the Legislature has the constitutional authority to delegate to the executive as set out in CEMA and within its parameters, and the Legislature retains the ability to amend, repeal, revoke, expand, or constrain CEMA or any part of it. [ 97 ] The logical extension of the plaintiffs’ arguments that the delegation of power in CEMA is unconstitutional is that the Court writes limits into the legislation that the Legislature did not intend.

The following review of jurisprudence in addressing the plaintiffs’ specific arguments explains why the plaintiffs’ arguments are not supported by the law in Canada, as it has developed and currently exists. C. Analysis of Plaintiffs’ specific arguments

i) Delegation of powers including policy-making is not abdication of legislative responsibility [ 98 ] The plaintiffs say that CEMA forces the Legislature to abandon its responsibility to decide policy to the executive. It does this by allowing the executive to make orders in multiple areas ranging from border controls and quarantine to licensing and access to information and privacy. [ 99 ] Legal authority beginning in 1883, including authoritative academic commentary, supports the defendants’ position that the delegation of authority in CEMA does not represent an abdication of legislative authority.

The decision of the Court of Queen’s Bench of Alberta (as it was then) in R v Ingram , 2021 ABQB 343 (“ Ingram ”) at para. 31 (aff’d 2022 ABCA 97 , leave denied [2022] SCCA No 145) comprehensively reviewed these authorities. [ 100 ] In Hodge v The Queen , [1883] UKPC 59 at 11-12 (“ Hodge ”) , the Judicial Committee of the Privy Council held that the provision of the Constitution Act, 1867 giving provincial legislatures the exclusive authority to make laws for matters set out in s. 92 meant that they were not delegates of or mandated by the Imperial Parliament.

The provincial legislatures had “authority as plenary and as ample within the limits prescribed by Sect. 92 as the Imperial Parliament … [w]ithin these limits of subjects and area the Local Legislature is

supreme” (p. 12). In that case the Privy Council held that the provincial legislature had the power and competence under s. 92 to delegatepower through statute to the municipality to issue tavern licences. [101] Building on this established authority of the legislature to delegate, the Court in In Re George Edwin Gray (1918), (SCC), 57 SCR 150 (“Re Gray”) at 156-157, held that an order in council made by the Governor in Council (the executive branch ofGovernment) under s. 6 of the War Measures Act, 1914 removing Mr.

Gray’s exemption from military service was constitutionally valid.Section 6 of the War Measures Act, 1914 authorized the Governor in Council to make any orders or regulations he deemed advisable “byreason of the existence of real or apprehended war, invasion or insurrection” (Re Gray at 156). Mr. Gray, who had been exempted frommilitary service by statute, was ordered to report for duty. When he refused, he was arrested and detained.

He argued his detention wasunlawful because the powers conferred by s. 6 of the War Measures Act, 1914 “were not intended to authorize the Governor-in-Councilto legislate inconsistently with any existing statute, and particularly not so as to take away a right (the right of exemption) acquired undera statute” (Re Gray at 158). [102] In dismissing Mr.

Gray’s argument, the Supreme Court of Canada wrote at 166-7 that the words of s. 6 of the War Measures Act,1914 were: … comprehensive enough to confer authority, for the duration of the war, to “make orders and regulations” concerning any subjectfalling within the legislative jurisdiction of parliament – subject only to the condition that the Governor-in-council shall deem such“orders and regulations” to be by reason of the existence of real or apprehended war, etc. advisable. [103] The Supreme Court noted that the authority was limited in two ways: first, it was exercisable only during war, and second, themeasures passed must have been deemed advisable by reason of war by the Governor in Council.

The Court wrote at 170 and 182: There is no attempt to substitute the executive for parliament in the sense of disturbing the existing balance of constitutional authority byaggrandizing the prerogative at the expense of the legislature. The powers granted could at any time be revoked and anything done underthem nullified by parliament, which parliament did not, and for that matter could not, abandon any of its own legislative jurisdiction.

Thetrue view of the effect of this type of legislation is that the subordinate body in which the law-making authority is vested by it is intendedto act as the agent or organ of the legislature and that the acts of the agent take effect by virtue of the antecedent legislative declaration(express or implied) that they shall have the force of law. … …. … At all events we, as a court of justice, are concerned with is to satisfy ourselves what powers Parliament intended to confer and that itpossessed the legislative jurisdiction requisite to confer them. … [104] The next authoritative decision on this issue was Shannon v Lower Mainland Dairy Products Board, (UKJCPC), [1938] 4 DLR 81 (PC).

The Privy Council found it was within the powers of the provincial legislature to delegate legislativepowers to the executive to set up a marketing board that would establish or approve schemes for the control and regulation within theprovince of transportation, packing, storage, and marketing of natural products and to vest in those boards any powers necessary oradvisable to exercise those functions. This power gave to the boards a wide discretion to decide which products would be regulated andthe scope and content of that regulation.

The Privy Council wrote at p. 87: … Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament: and it is unnecessary to try to enumeratethe innumerable occasions in which Legislatures … have entrusted various persons and bodies with similar powers to those contained inthis Act. [105] Several more recent decisions from the Supreme Court of Canada have affirmed these principles.

In Pan-Canadian SecuritiesRegulation the Supreme Court of Canada held that a draft federal Capital Markets Stability Act did not exceed the trade and commercepower of the federal government under s. 91(2) of the Constitution Act, 1867 because: [73] … Parliamentary sovereignty means that the legislature has the authority to enact laws on its own and the authority to delegate tosome other person or body certain administrative or regulatory powers, including the power to make binding but subordinate rules andregulations.

Accordingly, the power to make such rules and regulations is sometimes referred to as a “subordinate law-making power”.This kind of delegation occurs quite frequently in the administrative state, where statutory schemes often merely “set out the legislature’sbasic objects”, such that “most of the heavy lifting [gets] done by regulations, adopted by the executive branch of government underorders-in-council” (B.

McLachlin, P.C., Administrative Tribunals and the Courts: An Evolutionary Relationship, May 27, 2013 (online), see also Hogg (5th ed.), at pp. 14-1 and 14-2). [106] This observation of the development of the administrative state in Canada was echoed by the Supreme Court of Canada inCanada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, where they wrote: [202] … Parliament and the provincial legislatures have entrusted a broad array of complex social and economic challenges to

administrative actors, including regulation of labour relations, welfare programs, food and drug safety, agriculture, property assessments,liquor service and production, infrastructure, the financial markets, foreign investment, professional discipline, insurance, broadcasting,transportation and environmental protection, among many others.

Without these administrative decision-makers, “government would be paralyzed and so would the courts” (Guy Regimbald, Canadian Administrative Law (2nd ed. 2015) at p. 3). [107] Further, the Court of Appeal of British Columbia noted in Sga’nism Sim’augit (Chief Mountain) v Canada (Attorney General),2013 BCCA 49 (“Sga’nism Sim’augit”) at para. 90 that “there is no constitutional prohibition against delegating powers to anindependent authority, even where that authority is not functionally subordinate to Parliament or the Legislature”. [108] In References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (“Greenhouse Gas”), the Supreme Court of Canadaaffirmed all of the above authorities on the issue of the legislature’s ability to delegate, and referenced two additional authorities -Reference As to the Validity of the Regulations in relation to Chemicals, (SCC), [1943] SCR 1, which affirmed Re Gray;and R v Furtney, (SCC), [1991] 3 SCR 89, where the Court commented in obiter at 104: … The power of Parliament to delegate its legislative powers has been unquestioned, at least since the Reference as to the Validity of theRegulations in Relation to Chemicals. … The delegate is, of course, always subordinate in that the delegation can be circumscribed andwithdrawn … [citations omitted]. [109] The Supreme Court of Canada in Greenhouse Gas upheld the delegation of legislative power to the executive.

At issue waswhether federal legislation that set minimum standards of greenhouse gas pricing was a matter of national concern, coming withinParliament’s power to legislate for peace, order, and good government. The Court said: [85] This Court has consistently held that delegation such as the one at issue in this case is constitutional. Even broad or importantpowers may be delegated to the executive, so long as the legislature does not abdicate its legislative role. … [110] Respected academic commentators have explained and confirmed these findings.

Peter Hogg in, Constitutional Law of Canada (5th ed.) (Toronto: Carswell 2011), looseleaf, stated: It is impossible for the federal Parliament or any provincial Legislature to enact all of the laws that are needed in its jurisdiction for thepurpose of government in any given year. When a legislative scheme is established, the Parliament or the Legislature will usually enactthe scheme in outline only, and will delegate to a subordinate body the power to make laws on matters of detail.

The subordinate body(or delegate) to which this law-making power is delegated is most commonly the Governor in Council or the Lieutenant Governor inCouncil; each of these bodies is in practice the cabinet of the government concerned. Sometimes a power of law-making is delegated to asingle minister, or a public corporation, or a municipality, or a school board, or an administrative agency, or a court.

The body of lawenacted by these subordinate bodies vastly exceeds in bulk the body of law enacted by the primary legislative bodies. (at s. 14.1 (a)). [111] John Mark Keyes, in his book Executive Legislation, Delegated Law Making by the Executive Branch (Toronto: Butterworths,1992): wrote: “the overwhelming weight of case law indicat[es] that there are few, if any, restrictions on delegating to the executive” (at42).

He described the primary constraint as the legislature’s retention of their power to amend or repeal delegating legislation, noting that“irrevocable delegation seems legally impossible given its conflict with parliamentary supremacy” (at 43). [112] This unbroken line of authority, from Hodge to Greenhouse Gas, supported by authoritative academic commentary, shows thatthe legislature can delegate policy-making to the executive. In fact, in the modern administrative state, governments and the courts couldnot function without this kind of delegation.

This delegation does not constitute abdication of the role of the legislature, as long as thedelegated powers are rooted in the governing statute. Abdication would occur if the legislature also delegated such powers permanentlyand irrevocably to the executive, including the ability to amend, repeal, expand, or constrain the delegating legislation itself. [113] In this case, the plaintiffs do not dispute in general the delegation necessary for the modern administrative state.

They dispute thebreadth and scope of the delegation authorized by CEMA. [114] The Legislature has chosen through CEMA to allow the Minister to decide policy in the context of a state of emergency. States ofemergency necessitate quick and decisive action. The policy-making authority given to the executive by CEMA is no different from themany examples in the cases referred to above and it is especially similar to the situation in Re Gray, the decision under the WarMeasures Act, 1914. Significantly, CEMA does not remove the ability of the Legislature to amend, repeal, revoke, constrain, or expandthe legislation.

The facts of this case show that proposed amendments were in fact debated, albeit defeated, in the Legislature severaltimes while the state of emergency was ongoing. This demonstrates the retention of necessary legislative supervisory authority by theLegislature over the executive. [115] While other jurisdictions may contain different legislative provisions that allow for less delegation or additional supervision andoversight of their legislatures, these legislative choices do not support a finding of constitutional invalidity of CEMA.

Each jurisdictiondetermines through the democratic process of legislative debate and approval what its emergency legislation will contain. The plaintiffs’disagreement with the political and democratic choices made by the Legislature in passing CEMA and defeating proposed amendments,does not constitutionally invalidate the statute. [116] The adjournment of the Legislature between March 19 and October 1, 2020, is also not relevant to the determination of theconstitutionality of CEMA. First, the adjournment for seven months was voted on and unanimously approved. The Yukon Act and the

Charter provide for a constitutional maximum period of one year between sittings of the Legislature. Although the opposition parties requested later that the Legislature return on an earlier date, there was nothing unconstitutional in the Yukon government’s decision to uphold the agreed upon adjournment. [ 117 ] Second, the adjournment did not constitute an abdication of legislative powers. Legislatures in Canada are often adjourned for lengthy periods.

For example, the Nova Scotia legislature was adjourned for one year during the pandemic. [ 118 ] Finally, most of the executive orders were made under CEMA while the Legislature was sitting, thereby providing a form of supervision and a more expeditious process if challenges to any of the orders were necessary. ii) CEMA does not confer arbitrary or limitless powers on Minister [ 119 ] The plaintiffs say that CEMA ’s authorization of the executive to make orders “despite any other Act” and without limit on scope and content makes it unconstitutional because its arbitrariness and limitlessness usurp legislative authority. [ 120 ] As the Court noted in Re Gray (at 160) and confirmed in Greenhouse Gas (at para. 85 ), it is up to the legislature to determine the breadth, scope, and limits of the powers it decides to delegate.

In Re Gray , the Supreme Court of Canada upheld the ability of the legislature to delegate making orders and regulations concerning any subject within the legislative jurisdiction of Parliament, as long as that power was circumscribed by the conditions in the governing statute. The Governor in Council was authorized during war time to make any orders or regulation “deemed necessary or advisable” (at 178) by reason of the existence “of real or apprehended war” (at 178).

This included overriding other legislation enacted by Parliament. [ 121 ] CEMA does the same thing – the executive is authorized to make orders despite any other act, but that can only occur under certain conditions. The Legislature thus placed limits on the powers conferred on the executive. These limits include those set out in ss. 1 and 6(1) , which circumscribe the situation in which a state of emergency can be declared.

Section 1 defines peacetime disaster [2] , under which pandemic falls, and s. 6(1) restricts the ability of the Executive Council to declare a state of emergency by a finding that it meets the definition in s. 1.

Once a state of emergency is declared, s. 9(1) further limits the powers to be exercised by the executive branch by restricting them to those “considered advisable for the purpose of dealing with the emergency” (s. 9(1)). [ 122 ] Re Gray is an older authority and the War Measures Act, 1914 has now been replaced by the federal Emergencies Act , RSC 1985, c. 22 (4 th Supp .), which contains new supervisory and oversight provisions. However, this legislative choice made through the democratic process, does not make the principles in Re Gray inoperable or irrelevant.

The findings in that decision, emanating from the wording of the War Measures Act , 1914 have been upheld in the many subsequent authorities reviewed above. The principles in Re Gray have been confirmed as recently as 2021 ( Greenhouse Gas ). It remains valid and binding authority. [ 123 ] The existence of the extraordinary context of a peacetime disaster and state of emergency as defined in CEMA justifies the ability of the Minister to suspend or alter primary legislation (other than the governing statute) through secondary orders.

Those orders are subordinate, because they cannot exceed the limits of CEMA and are circumscribed by its provisions. [ 124 ] A policy basis for this legislative choice is that the contextual circumstances in which the legislation was developed can change during a state of emergency, and consequently make that original legislation inadequate to address the emergency circumstances.

The ability to suspend operation of other legislation can be necessary to meet the needs created by the emergency. [ 125 ] Allowance for the ability of a statute to alter other primary legislation was endorsed by the Court of Appeal of British Columbia in Sga’nism Sim’augit in 2013: [90] … [T]here is no constitutional prohibition against delegating powers to an independent authority … That is so even where the delegate is authorized to make rules or laws which prevail over inconsistent or conflicting federal or provincial legislation as there is a presumption that the legislature did not intend “to make or empower the making of contradictory enactments” [citations omitted]. [ 126 ] CEMA authorizes the Minister to suspend primary legislation if necessary, only temporarily.

Once the declaration of the state of emergency no longer exists, none of the powers exercised under CEMA by the executive is in force. Other statutory provisions that were overridden or altered regain their force and effect. [ 127 ] While the delegated powers in CEMA have a subjective component and confer broad discretion, this breadth does not mean they are unlimited or unreviewable.

The orders made under CEMA must accord “with the purposes and objects of the parent enactment read as a whole” ( Katz Group Canada Inc v Ontario (Health and Long-Term Care ), 2013 SCC 64 (“ Katz Group” ) at para. 24 ) and must be consistent “within the literal (and often broad) terminology of the enabling provision” (at para. 24). As noted above, CEMA does not authorize the executive to alter the terms of CEMA itself.

The phrase “despite any other Act” refers only to other legislation, not the enabling legislation of CEMA , which can only be altered, revoked, or repealed by the Legislature. [ 128 ] The Minister remains accountable to the executive and the Legislature in the exercise of his authority under CEMA . The Executive Council must retain the confidence of the Legislative Assembly. iii) CEMA does not delegate the full legislative competence or authorize powers outside of s. 18 of the Yukon Act [ 129 ] The plaintiffs argue that the Legislature has delegated its full panoply of powers to the executive through CEMA .

However, the Legislature has placed limits on the delegation of powers within CEMA : the orders are impermanent, and their operation is conditional

upon an existing state of emergency and for the purpose of dealing with emergency. As well the Legislature’s exclusive retention of theability to amend, repeal, revoke, expand, or constrain CEMA means its full legislative powers have not been delegated through CEMA. [130] The plaintiffs further argue that some of the powers exercised by the Minister or the executive under CEMA extend beyond thosepowers authorized by s. 18 of the Yukon Act (similar to s. 92 of the Constitution Act, 1867). Examples they provide are the quarantine forreturning residents and border control.

These excessive powers they say render CEMA unconstitutional. The plaintiffs did not elaborateon their arguments about the exercise of powers beyond s. 18 of the Yukon Act, other than to identify these examples. [131] The Supreme Court of Canada held in Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 atpara. 133, that any broad discretion conferred by a statute is subject to the constitutional constraints on the entity that conveys thediscretion.

Those constraints flow through to all regulations, by-laws, orders, decisions and any other legislative, administrative orjudicial actions dependent on that statute for their validity. [132] CEMA does not authorize the executive to exercise powers beyond those provided to the Legislature under the Yukon Act. Whilethe powers permitted under CEMA are broad, they are circumscribed by those constitutional parameters. Moreover, even if the executivedid exercise powers beyond the authority set out in CEMA this would not constitutionally invalidate CEMA.

The remedy in that instancewould be to challenge the exercise of that particular power through judicial review, not the enabling statute. iv) CEMA is not unconstitutional for failing to give the Legislature an active supervisory role [133] The plaintiffs argue that the absence in CEMA of an active supervisory role for the Legislature in the exercise of power by theexecutive makes it unconstitutional.

They say the Legislature’s failure to retain the power to end a declaration of a state of emergency,and the ability of a state of emergency to continue at the sole subjective discretion of the executive create invalidity. [134] This argument overlooks the continued ability of the Legislature to amend, repeal, revoke, expand, or constrain the powers it haschosen to delegate at any time.

This ability to nullify any of the powers remains with the Legislature and provides a supervisoryfunction. [135] In fact, in this case, the Legislature unanimously agreed to the declaration and subsequent extension of a state of emergency inNovember and December 2020. Proposed amendments to CEMA were debated and defeated in the Legislature several times during theongoing state of emergency. The ultimate supervisory control by the Legislature was maintained through its ability to amend or revokethe CEMA provisions.

The fact that such attempts were unsuccessful is a reflection of the democratic process at work, and not of theunconstitutionality of CEMA. As stated in Re Gray at 160: There are obvious objections of a political character to the practice of executive legislation in this country because of local conditions.But these objections should have been urged when the regulations were submitted to parliament for its approval, or better still, when the“War Measures Act” was being discussed.

Parliament was the delegating authority, and it was for that body to put any limitations on thepower conferred on the executive. … [136] Similarly, the plaintiffs’ objections to CEMA’s delegation of authority to the executive appear to be based on their politicaldisagreement with the nature and scope of the decisions of the executive. Such objections do not equate to a valid challenge ofconstitutionality.

If the Legislature is unable to make amendments to CEMA due to the views and votes of its elected representatives, theremedy for those in disagreement is at the ballot box, not through a challenge to the constitutionality of the valid legislation.

v) Conclusion on Issue #1 [137] Unwritten constitutional principles cannot be used on their own to invalidate CEMA. Those principles in any event are consistentwith the valid constitutional status of CEMA. The existing jurisprudence supports the ability of the Legislature to delegate powers in themanner done by CEMA. The remedy of judicial review remains if the executive exercise powers outside of the parameters of CEMA, theYukon Act or the Charter. Issue #2 – Limitation of Liability and Ousting of Core Jurisdiction of Court A. Positions of Parties

i) Plaintiffs [138] The plaintiffs’ challenge to s. 10 of CEMA is twofold: 1) the Crown is improperly immunized from liability for damages foractions taken during the state of emergency; and 2) proceedings in which coercive orders for the government to do or to refrain fromdoing something are inappropriately barred. [139] The plaintiffs say that the grant of immunity from legal acti

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