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

In Ontario, patients’ rights trump physicians’ rights when dealing with medical assistance in dying

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Another chapter in the continuing saga of medical assistance in dying (“MAID”) was completed on January 31, 2018 when the Divisional Court of the Ontario Superior Court of Justice ruled on the constitutionality of the “Effective Referral Provisions” of the Human Rights Policy and MAID Policy of the College of Physicians and Surgeons of Ontario (“CPSO”). (In this blog post, I am focussed on the MAID Policy but the judgment refers to the Policies.) The Effective Referral Provisions require physicians who are unwilling to provide, amongst other matters, MAID to their patients, on moral or religious grounds to provide an effective referral to another health care provider. The Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians’ Societies, and Canadian Physicians for Life, along with a number of individual “objecting” physicians had challenged the Effective Referral Policy on the basis that the Policy violated their freedom of religion and conscience protected by s. 2(a) of the Charter and their right to equality protected by s. 15. Justice Wilton-Siegel, (Justices Lococo and Matheson concurring) disagreed and dismissed the challenges:  The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579.

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Medical Assistance in Dying – Part 3, 4?? Lamb v. Canada (Attorney General), 2017 BCSC 1802

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A recent decision of Chief Justice Hinkson of the British Columbia Supreme Court in Lamb v. Canada (Attorney General), 2017 BCSC 1802 has underscored the fact that Canada is not done with the medical assistance in dying portfolio. As we know, in 2016, the Liberal government pushed through Bill C-14 over the objections of many who asserted that the Bill did not comply with the Supreme Court of Canada’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5. Indeed, in a previous post, I predicted that if the legislation passed “as is”, we would see “yet another challenge (and more people suffering unnecessarily) in the not too distant future”. Unfortunately, this prediction has come to pass.
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Constitutional surgery gone awry or lessons in how to make the cut? Cambie Surgeries Corporation v. British Columbia (Medical Services Commission)

For about nine years here on Canada’s West Coast, a constitutional battle has been fought over the future of public health care. The opening shots were fired in 2008 by some individual patients against a private surgery clinic, Cambie Surgeries Corporation (“Cambie”), claiming that Cambie was illegally extra-billing and that the Medical Services Commission (the “MSC”) was not properly enforcing the law. Cambie then responded by launching its own action in early 2009, challenging the constitutionality of provisions of the provincial Medicare Protection Act claiming that they caused undue delay in access to health care resulting in a violation of the patients’ rights to life, liberty and security of the person as guaranteed by s. 7 of the Charter (amongst other challenges). Since 2009, there have been over thirty reported decisions of the Supreme Court of British Columbia dealing with procedural issues. Over twenty of those reported decisions have been issued since the commencement of trial (I am sure that there are many more unreported decisions).

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2016 – a year in constitutional retrospect

 

As 2016 fades into the distance, I thought that it might be useful to look back and see what were some of the biggest constitutional developments in the Old Year. There were many but I think that a few stand out for me. A number do not involve constitutional judicial determinations but they are major Canadian constitutional developments nonetheless.

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The Senate says “’nuff”… Bill C-14 approved by the Red Chamber

This is just a quick post to note that Bill C-14 in the more restricted format passed by the House of Commons – for the second time – was just approved by the Senate by a 44 to 28 vote. Earlier, the Senate had returned the Bill to the House of Commons with a substantial majority of Senators agreeing that the House of Commons’ version was too restricted, especially considering the requirement that a person seeking medical assistance in dying (“MAID”) be at the point where his or her natural death was “reasonably foreseeable”. Constitutional experts had testified before the Senate to the effect that this version of the Bill was unconstitutional because it stripped away rights from a group of persons that the Supreme Court of Canada had expressly determined were theirs. So what next?

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BC Supreme Court certifies Charter claims by penetentiary inmates as a class action

In a recent decision of the Supreme Court of British Columbia, Ewert v. Canada (Attorney General), 2016 BCSC 962,  Mr. Justice Blok certified as a class action certain aspects of a lawsuit brought by an inmate for, amongst other things, damages for violations of Charter rights. The inmate in question, Jeffery Ewert, claimed that, during a lockdown at the Kent Correctional Institution that occurred between January 7 and 18, 2010, his rights and the rights of other inmates under ss. 7, 8 and 12 of the Charter were violated and that they were accordingly entitled to damages.

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The deadline has passed. What is the status of physician-assisted death in Canada today?

 

The extended deadline set by the Supreme Court of Canada in Carter v. Canada (Attorney General), 2016 SCC 4 expired last night, June 6, 2016, at midnight. The constitutional exemption created by the Court in granting the extension to its original deadline of February 6, 2016, would have logically expired as well. So what is the state of the law today in Canada insofar as it relates to medical assistance in death?

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The Court comes to the defence of solicitor-client privilege – Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20

On June 3, 2016, the Supreme Court of Canada yet again upheld the constitutional principle in support of professional secrecy between legal advisors and their clients. Justices Wagner and Gascon, rendering reasons for the Court in Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, underscored the importance of solicitor-client privilege, not only in the judicial system, but also in the legal system. Accordingly, in Chambres des notaires, as well as in Canada (National Revenue) v. Thompson, 2016 SCC 21, released contemporaneously, the Court held that the right to professional secrecy trumped the need of the government to be able to obtain accounting records of legal advisors in so far as they related to clients.

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Alberta Court of Appeal and Ontario Supreme Court – both say Carter does not require terminal illness

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In two separate decisions, the courts have made it clear that nothing in Carter v. Attorney General (Canada), 2015 SCC 5 requires that the person seeking medical assistance in dying be suffering from a terminal illness or condition. And yet the government persists in pursuing Bill C-14 with its requirement of “reasonable foreseeability” of death.

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