Coronavirus – as viewed by Constitutionally Canadian


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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.


Election 2015 – our constitution at work…

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On October 19, 2015, Canada goes to the polls. The hurly burly of the Canadian version of democracy has been on display since early August when Prime Minister Stephen Harper asked the Governor General to dissolve Parliament and to call this election. What many of us do not appreciate is that this spectacle is probably one of the best examples of our constitution at work.

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The British Columbia Court of Appeal puts the brakes on freedom of association – BCTF v. BC, 2015 BCCA 184

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After the Supreme Court of Canada made a number of decisions enlarging the scope of the fundamental freedom of association in the field of labour relations, in British Columbia Teachers Federation v. British Columbia, 2015 BCCA 184, the British Columbia Court of Appeal has slowed its growth and given some considered discussion of the Supreme Court’s recent pronouncements in the field. A majority of four of a five member panel led by Chief Justice Bauman and Mr. Justice Harris reviewed the law respecting freedom of association, including the recent decisions of the Supreme Court in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (“MPAO“)and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“SFL“). Their comments provide penetrating insights as to one approach to understand the newly reconstructed freedom of association.

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In the name of workplace justice: the Court continues to beef up freedom of association

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In two decisions released only two weeks apart, the Supreme Court of Canada has clearly moved to “refang” the union movement, especially insofar as it involves government employers. In its first decision of the year, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the majority of the Court ruled that the laws prohibiting RCMP members from being able to freely organize their own independent labour association (ie. a labour union) contravened their freedom of association as protected by s. 2(d) of the Charter and could not be justified under s. 1. In last Friday’s decision, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, a majority of the Court held that Saskatchewan’s “essential services” laws which prohibit the public service from striking were similarly contrary to s. 2(d) and unconstitutional. In both cases, Justice Rothstein (joined by Justice Wagner in the second decision) provided powerful dissents. As a result of these decisions and other relatively recent decisions, Canada constitutional protection of freedom of association has now come to protect core elements of labour relations, such as the right to bargain collectively, the right to strike and the right to freely choose an independent labour association to represent their interests viz-a-viz the employer. We have come a long, long way from the labour trilogy of 1987.

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The unions’ renewed swagger – giving teeth to freedom of association

Wikipedia – Winnipeg General Strike 1919

In 1987, a majority of the Supreme Court of Canada held that “the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike”: Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313, per Le Dain J. Then, after testing the waters in some earlier cases, the Supreme Court of Canada reversed this ruling in 2007 in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, at para. 86:

“We conclude that the protection of collective bargaining under s. 2(d) of the Charter is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.”

While the constitutional status of the right to strike is now in doubt, there is no doubt that the courts, with the Supreme Court of Canada leading the way, are resetting the constitutional balance of power between trade unions on one hand and employer (and especially public sector employers) on the other.
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Freedom of expression and copyright in the Internet – The new realities of a cyberspace inhabited by copycats

Printing press - Wikipedia

Printing press – Wikipedia

In an earlier post, “Constitutional protection of a collective exercise of freedom of expression: Alberta v UFWA”, I commented on how the Supreme Court of Canada was coming around to understanding the fundamental importance of the exercise of freedom of expression by a collectivity. I also noted that this shift could ultimately have wide-reaching ramifications in the Internet Age.

This post today will be the first instalment of several posts on freedom of expression and the Internet. But let me start by saying that the genie is now out of the bottle and it will not be going back.

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Constitutional protection of a collective exercise of freedom of expression: Alberta v. UFCW


The Supreme Court has now clearly determined that the collective and social exercise of the fundamental freedoms enumerated by the Canadian Charter of Rights and Freedoms is worthy of constitutional protection and scrutiny. This was not always so.

The 1987 trilogy – limiting the scope to that of individual exercise 

In 1987, a trilogy of cases (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, PSAC v. Canada, [1987] 1 SCR 424; RWDSU v. Saskatchewan, [1987] 1 SCR 460] severely limited the scope of the fundamental freedom of association. The Supreme Court ruled in those cases that freedom of association could not encompass the activity of collective bargaining because an individual could not, on his or her own, bargain collectively. The logic was then that freedom of association belonged to individual persons only and that this freedom of association could not be enlarged in scope simply by the individuals acting in concert. Since an individual could not bargain collectively, individuals acting together could not claim that their freedom of association extended to an action that they could not individually carry out. This unfortunate (in my respectful opinion) determination knocked the stuff out of freedom of association for a quarter century.

Dunmore 2001 and the move to undo the tie to individual exercise

Starting in 2001, the Court began to erode away the underpinnings of the 1987 trilogy’s constitutional legacy. In 2001, Bastarche J, speaking for the Court, breathed new life into the s. 2(d) freedom of association. He dispensed with the argument that freedom of association had to be limited to those activities that an individual could conduct individually:

“As I see it, the very notion of “association” recognizes the qualitative differences between individuals and associations. It recognizes that the press differs qualitatively from the journalist, the language community from the language speaker, the union from the worker. In all cases, the community assumes a life of its own and develops needs and priorities that differ from those of its individual members….”

Of interest is the fact that Bastarache J had already started to recognize the communal, collective or social quality of important aspects of the fundamental freedoms (expression, association). In other words, it is not just freedom of association that is important from a collective perspective but also freedom of expression (and logically and necessarily, freedom of religion –though not expressly noted by Bastarache J in the examples given). Indeed, in the example of the press differing qualitatively from the journalist, Bastarache J expressly acknowledges that that aspect of the s. 2(b) freedom has important uniquely collective characteristics. The “press” as it has evolved in its current forms has many collective qualities – from the joint editorship and control over publication to the mass readership and dissemination of the product.

Perhaps, due to Canada’s constitutionalized bilingualism and recognition and protection of collective linguistic and aboriginal rights, the Court had become more accustomed to concept of collectively exercised rights. Maybe this was why Bastarache J. was led to refer to the example of the language community differing from the language speaker.

In any event, certainly by 2001, the Court was leaving behind the rigid philosophy that individual rights and freedoms could have no greater scope than the scope carved out by the exercise of such rights or freedoms by an individual. By the time of Dunmore, the Court was already flagging its inclination to accept that the human condition has certain fundamental components that are communal, social or collective in nature and that fall within the ambit of the constitutionally protected rights and freedoms.

2013 Alberta v. UFCW – the union’s freedom of expression

Enter the Court’s decision in Alberta (Protection of Information and Privacy Commissioner) v.UFCW, 2013 SCC 62 released on November 15, 2013. While many may consider that the importance of this case was the fact that the privacy of the individual was held to be secondary in importance to the union’s interests (which is undoubtedly a matter of great importance), what caught my eye was the Court’s reference to the “union’s freedom of expression”. Justices Abella and Cromwell gave the reasons for judgment for the Court. In the opening paragraph of their reasons for judgment, the Justices explained what issue was being determined in the appeal:

“This appeal requires the Court to determine whether Alberta’s Personal Information Protection Act unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike. At issue is whether the Act achieves a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression.”

(emphasis added)

In paragraph 25, the Justices state: “the Act does not include any mechanisms by which a union’s constitiutional right to freedom of expression may be balanced with the interests protected by the legislation” (emphasis added). Later, at paragraph 30, they quote with approval from the International Labour Organization that “[t]he exercise of freedom of association and collective bargaining is dependent on the maintenance of fundamental civil liberties, in particular…. freedom of opinion and expression”: Report of the Director-General: Freedom of association in practice: Lessons learned (2008), para. 34.

Thus, a right that is conferred by the Charter on “everyone” has become a constitutional right of a union, an entity that by its very definition is a collectivity. The express recognition by the Court of the importance of the collective exercise of some of the fundamental freedoms, including freedom of association and freedom of expression has far-reaching implications.

Ramifications and implications

Concepts are not “expressed” in a vacuum. They are expressed by one person to one or more other persons. They are discussed among people in groups in communities, formal and informal. Ideas and concepts and thoughts are shared, shaped, moulded and adapted by individuals and groups of persons, individuals and groups whose membership is constantly shifting. This has always been a core element of human expression. Now the Court has clearly confirmed that it is worthy of constitutional protection.

The significance of this development must be appreciated in the context of the world we now find ourselves in. Marshall McLuhan’s concepts of a global community have been realized through the advent of the Internet and world wide communication systems. The term “Friends” has taken on new significance with communities built on Facebook.  With a click of a computer key, people can share their ideas, their thoughts, their photos, their music, their videos with hundreds or thousands or millions of people. “Viral” used to be something only with negative connotations. Now, if you launch a video that goes viral, that may be a fantastic development.

In a future post, I will outline what I think the ramifications of this “collective”, “social” or “communal” constitutional protection are.  For now, I will say simply that the world is a different place today and the Court apparently is adapting its jurisprudence to reflect that condition.

Until then, I remain

Constitutionally yours

Arthur Grant