Coronavirus – as viewed by Constitutionally Canadian

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Image by Thanasis Papazacharias from Pixabay

The coronavirus crisis in Canada

Like so many other countries around the world, Canada has been rocked by the coronavirus or more specifically CoVID19 virus. Only a short time ago, Canadians thought that this virus was a problem that affected other countries, not ours. That perception is long gone.

We are now under a state of emergency. By and large, we work from home – if we can work at all. We practise “social distancing”, a phrase that most of us had never heard back in February of this year. The provinces and territories have issued public health orders, restricting our movement, our social interactions, our businesses, our way of life. The federal government has limited the ability of people to enter and leave the country. Massive spending programs, the likes of which we have not seen since the last World War, are being unleashed. Unemployment greater than anything experienced since the Great Depression is expected.

All of these changes have occurred in weeks, sometimes days, and huge pressures have been exerted on our federation, on our democracy, on our governance. Our constitutional framework is being tested and we have only just begun. Here are some of the constitutional issues that I think are coming to the fore as a result of the coronavirus outbreak:

Charter of Rights issues

The orders of the different orders of governments clearly are having an effect on the mobility rights of Canadians and the permanent residents of Canada. Prior to the coronavirus outbreak, the ability to enter or leave Canada was the unquestioned right of a Canadian citizen, protected by s. 6 of the Charter. Now that right is subjected to significant restrictions, of a level and nature not normally seen in peacetime.

Not only is the right to enter and leave the country being affected, but so too is the right to travel between provinces. While the restrictions on this right (also protected by s. 6) are less dramatic or pronounced, they do exist and some provinces, including my own, British Columbia, are actively advocating that residents of other provinces do not come across our provincial borders.

Intra-provincial mobility is being restricted in different provinces. This right to move freely that descended from the rights of freemen to move without restrictions from the nobility is being clamped down now in an attempt to limit the spread of the contagion. Constitutional protection of this right is now found in s. 7 of the Charter. 

Mobility rights are not the only rights being affected. Many of the fundamental freedoms are directly impacted by the measures. Today is Passover, a sacred Jewish holiday. This weekend is Easter, one of the most celebrated Christian holidays. Earlier last month was Nowruz, a Persian religious holiday. All of these religious holidays are normally celebrated collectively. Under the public health orders, such collective gatherings are banned. Accordingly, the fundamental freedoms of religion, association and peaceful assembly are affected.

In all of these instances, the question must be posed whether the measures adopted to combat the coronavirus outbreak are proportionate and justifiable given the limits they impose on such constitutional rights and freedoms.

Canadian federalism

Just a few months ago, the Canadian federation was being rocked by protests, with railways and ports being shut down. The provinces were blaming each other and the federal government. Indigenous nations were seeking a meaningful voice.  The coronavirus has changed the focus.

Today, we are witnessing huge investments in time, money and human resources in fighting the coronavirus, limiting its spread, “flattening the curve”, understanding it, and developing a vaccine or treatment for it. As well, gigantic plans are being created for supporting the Canadian population when so many are out of work and for bringing our economy back to life after the virus is brought under control.

Although these are early days, the provinces and the federal government appear to be working together. Things are just being done. Legal frameworks are being erected quickly. The normal care regarding constitutional jurisdiction is, most likely, not being exerted. As we progress through what will likely be months of battle against this virus, the question will be whether jurisdictional limits have been exceeded. It will also be whether this apparent exercise in cooperative federalism will continue and whether it may serve to shape future constitutional debates.

Another issue that will have to be resurrected will be whether the Indigenous Nations of Canada have been overlooked. That whole issue of Indigenous jurisdiction and Indigenous law which was at the forefront of our political and constitutional debate back in January has not gone away. But it would seem that the niceties of that debate have been pushed to the side as the federal, provincial and territorial governments deal with the immediacy of the crisis. So, how will we return to deal with that issue in the aftermath of CoVID19?

Parliamentary democracy

Just this Monday, Prime Minister Trudeau announced that the government was actively looking at whether Parliament could sit virtually.  If a virtual Parliament came to fruition, that could be a fundamental constitutional development and one that might survive the coronavirus outbreak.

There are already critics of such a proposal.  Adam Wherry wrote an op-ed today in which he suggested that Parliament requires that the members get to know each other, work together and interact with each other. He has good points. That being said, a virtual Parliament may make it easier for parliamentarians of the more remote or distant parts of the country to maintain better contact with their constituents and yet still participate in the parliamentary debates and committees.

I suspect that there would need to be a number of small “c” constitutional amendments in order to make this virtual Parliament a true and lasting reality. But it should be explored and not just for this crisis.

I hope to revisit these and other constitutional issues being raised by the coronavirus over the next few weeks. I invite you to reach out to me by commenting on this post, to suggest topics for discussion, and to provide alternate perspectives.

I remain

Constitutionally yours

Arthur Grant

Post script

It has been almost two years since I did my last blog post. I had just been recovering from significant surgery (bilateral hip replacement) and I was focused on that. As well, my work levels exploded, a happy situation I suppose.

I can report that, not only did I recover from my hip surgery but I exceeded everyone’s expectations, including my own. I returned to my passion, rowing, and competed both in 2018 and 2019. If the coronavirus permits, I will be rowing and competing again this year and for as long into the future as my health and circumstances permit.

Work is still busy but I think that I have found ways to tame it.  I have some great people working with me and they make it all possible.

So the long and short of it all is that I hope to be doing a lot more of Constitutionally Canadian. You will probably find that I will be making more of an emphasis on the issue of Indigenous jurisdiction, Indigenous governance and Indigenous laws. I think that these present some of the biggest constitutional issues that our country will face and I aspire to make a contribution towards an understanding of them and, with luck, towards a resolution and lasting reconciliation.

AG

The Supremes keep the lid on the keg – the beer still does not flow freely in Canada – R. v. Comeau, 2018 SCC 15

 

drink-beer.jpgOn April 19, 2018, in R. v. Comeau, 2018 SCC 15,  the Supreme Court of Canada ruled that New Brunswick was within its rights to control the flow of beer across its provincial borders: unrestrained interprovincial free trade in Canada (at least for beer) is still a pipedream. But imbedded in the Court’s judgment were seeds that, properly fertilized and irrigated, may well grow into a more robust protection of economic union.

Mr. Comeau had decided that he wanted to bring some cheaper Quebec beer and other alcohol across the Québec/New Brunswick border. The police in New Brunswick were lying in wait for him and charged him with a violation of the New Brunswick Liquor Control Act. At trial, he challenged the constitutionality of s. 134(b) of the Liquor Control Act, arguing that it contravened s. 121 of the Constitution Act, 1867.

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Alberta retaliates against BC: this ain’t how to act in a federation….

The Fraser River

Two NDP premiers and two NDP governments. Two provinces side by side in the Canadian west, one – the Far West, Lotusland British Columbia. The other – just “the West”, rough and tumble oil baron Alberta. Alberta is landlocked. It needs to get its oil…. sorry, let’s be accurate here, its bitumen to markets other than the United States (currently, the world’s biggest producer of petroleum). In particular, Alberta wants access to markets where they will pay more money for its bitumen, extracted from its oil sands. British Columbia is a land of milk and honey – okay, let’s be accurate, it’s a land of mountains, rivers and fjords. British Columbians are highly protective of their environment, the ruggedness of which is only surpassed by the fragility of the eco-systems that populate it. Enter the Trans Mountain Pipeline Expansion (“TMX”).

The feds approved a massive expansion of the existing Trans Mountain pipeline that takes diluted bitumen from Alberta through British Columbia to a terminal located in Burrard Inlet that is part of Metro-Vancouver. Once built, this will mean a huge increase in freighter traffic in and out of Vancouver’s ports. The TMX will result in increased risk of bitumen spills in the port, in the Salish Sea, in the Fraser River and its estuary and all along the route of the pipeline. In short, it will dramatically boost Alberta’s access to world markets for its bitumen but it will equally raise the risk to likely do incalculable damage to British Columbia’s rivers, lands and coastlines.

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BC’s threat to limit increased flow of bitumen and Alberta’s threat to see BC in court: a constitutional showdown

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Last year, the federal government announced that it was approving the twinning of the TransMountain pipeline which, once constructed and initialized, would increase multifold the volume of Alberta’s oil sand bitumen that could be shipped out of Vancouver’s Burrard Inlet. The new NDP government in British Columbia announced on January 30, 2018 that it was considering regulations to limit any increase in diluted bitumen that could be shipped through British Columbia. This announcement was met almost immediately by a warning from a stern Alberta Premier Rachel Notley that BC was acting unconstitutionally and that it was purporting to exercise powers it did not have. The constitutional battle lines are being quickly drawn. (See the news report from CBC News from that date for a quick review of what was said by the various parties).

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The birthday of Canada’s Constitution and the British Columbian lesson

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Today marks the 150th anniversary of the date that Canada’s constitution came into effect. While many are saying that today is Canada’s 150t birthday, it is more accurate to say that it is the “150th birthday” of Canada’s written federal constitution. On July 1, 1867, the British North America Act, now named the Constitution Act, 1867, came into force and the fledgling federation known as Canada was created. But Canada and her constitution existed long before that, Even in the political and legal sense of the word, “Canada” was a concept or an entity in one form or another well before 1867. There was the united Province of Canada, Upper and Lower Canada, and, of course, the indigenous nations that spanned the territories of what is now Caanda for long before 1867. But today, I would like to commemorate the 150th anniversary of Canada’s BNA Act (let’s use the former name today for old time’s sake). I would also like to take notice of what transpired recently in British Columbia to underscore that Canada and her constitution are much, much older than 150 years.

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No Electoral Reform for Canada = the Liberal Government Renegs on its Promise

Today, the new Minister of Democratic Institutions, Karina Gould, announced that the Liberal government has officially abandoning the objective of electoral reform. Thus, notwithstanding the promise that 2015 would be the “last federal election conducted under the first-past-the-post system” made during the 2015 electoral campaign, Canada will be faced with more elections which permit very small percentages of the voting public to put in place electoral majorities.

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The “new” Senate takes shape – achieving parliamentary reform without constitutional amendment

On October 27, 2016, the Prime Minister named nine new senators to the Senate, with 12 more to be appointed in the coming days. These new “independent, non-partisan” senators along with their future fellow colleagues will soon comprise the largest “bloc” of senators in the Upper House, surpassing the Conservative senators. What Prime Minister Trudeau has done by moving to a non-partisan, merit-based appointment process is major parliamentary reform, all without the need for any constitutional amendment whatsoever.

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Don’t complain when the Senate fulfills its constitutional role: Bill C-14 as a case-study

Government ministers and opposition leaders were in a flap this last week. The Senate dared to amend Bill C-14, the bill on physician-assisted dying and strike out one of the qualifications that the House of Commons had insisted on – namely, that natural death be reasonably foreseeable. Opposition Leader Rona Ambrose stated in response on June 9, 2016:

“We have the courts making laws in this country and now we have an unelected Senate changing the laws of an elected House….”

Minister of Health Jane Philpott stated that the government was “concerned” about the amendments to a bill that “has been supported by a vote in the House of Commons”. Justice Minister Jody Wilson-Raybould called the amendment a “significant one” and said that it would “broaden the regime of medical assistance in dying in this country and we have sought to ensure that we, at every step, find the right balance that is required for such a turn in direction.”

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The Succession to the Throne Act, 2013 survives constitutional scrutiny: Motard v. Canada (Attorney General)

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On February 16, 2016, the Quebec Superior Court upheld the Succession to the Throne Act, 2013, an Act of the federal Parliament that gave Canada’s assent to an Act before the Parliament of the United Kingdom that changed the rules of succession for the British monarchy such that the system of male preference primogeniture under which a younger son could displace an elder daughter in the line of succession was to be ended and also such that the rule that rendered anyone who married a Catholic became ineligible to succeed to the Crown was similarly removed. In Motard v. Procureur general du Canada et al., 2016 QCCS 588, Justice Claude Bouchard examined the question as to whether the amendments to the royal succession, and Canada’s assent to them, were changes to Canada’s constitution and, if so, whether Part V of the Constitution Act, 1982 was therefore engaged.

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The provinces cannot defeat the federal jurisdiction over bankruptcy by using indirect means

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November 2015 was a banner month for Constitution-watchers. While other November decisions will be the subject of a separate post, this one focuses on three good old-fashioned division of powers decisions that were handed down by the Supreme Court of Canada on November 13, 2015. In Alberta (Attorney General) v. Moloney, 2015 SCC 51, 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52 and Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, the Court reviewed the questions of federal paramountcy and operational conflicts between otherwise validly enacted provincial and federal legislation.

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