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

A Tale of Two Cases: the Long Gun Registry case, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 and the Mandatory Minimum Sentence for Prohibited Firearms Case, R. v. Nur, 2015 SCC 15

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By a 5 to 4 margin, in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (referred to as the Long Gun Registry case in this post), the Supreme Court of Canada ruled on March 27, 2015 that the Quebec government had no right to insist that, before destroying all data in the now defunct federal long gun registry, the federal government hand over to it the data relating to Quebec resident long gun owners. Two and a half weeks later, by a 6 to 3 margin, in R. v. Nur, 2015 SCC 15, the Court held that the mandatory minimum sentence for possessing prohibited firearms was contrary to s. 12 of the Charter and was not justified under s. 1. What is of interest, besides the result in these two cases, is how the Court divided and the basis for its division.
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