Even in the face of COVID-19, governments cannot act without constraint.
First, the executive can do only what the legislature has empowered it to do. The Cabinet, individual ministers, and other government officials may have broad statutory authority, but “there is no such thing as absolute and untrammelled ‘discretion’ ... ; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute” (Roncarelli v. Duplessis,  S.C.R. 121, at p. 140, per Rand J.).
Second, the executive and the legislature are both bound by the Constitution. The Constitution Act, 1867 specifies the separate jurisdictions of Parliament and the provincial legislatures. The Charter of Rights and Freedoms (the “Charter”), meanwhile, requires governments to impose only reasonable limits on Canadians’ constitutional rights, and allows legislatures to enact laws beyond those limits only in limited circumstances and for limited periods.
These constraints shape how governments can respond to the COVID-19 crisis. They may also ultimately be enforced by the courts.
Constitutional constraints on governments’ emergency powers
Declaring a state of emergency, or a public health emergency, does not dilute the Charter’s requirement that limits on Canadians’ rights and freedoms be reasonable, prescribed by law, and demonstrably justified in a free and democratic society under s. 1.
Nor do emergencies generally alter the division of powers between Parliament and the provincial legislatures in the Constitution Act, 1867, though the federal government may intrude on areas of provincial jurisdiction to respond to an emergency, as discussed below.
Many emergency measures imposed in response to COVID-19 could limit Canadians’ rights as guaranteed in the Charter. For example:
orders restricting individuals’ movements (see, g., s. 8(1)(a) of the federal Emergencies Act) would likely limit the “freedom of peaceful assembly” under s. 2(c) of the Charter, “the right … to move to and take up residence in any province” under s. 6(2)(a), and possibly even “the right not to be arbitrarily detained or imprisoned” under s. 9;
orders requiring individuals to be immunized against COVID-19, if such a vaccine were developed (see, g., s. 16(1)(a) of the British Columbia’s Public Health Act; s. 38(1)(c) of Alberta’s Public Health Act), could limit the “freedom of conscience and religion” under s. 2(a) of the Charter, or “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” under s. 7, or even “the right to the equal protection and equal benefit of the law without discrimination” under s. 15(1); and
orders involving the collection and use of personal information, including through mobile apps for contact tracing or quarantine enforcement (see, g., s. 7.0.2(4)13 of Ontario’s Emergency Management and Civil Protection Act), could limit “the right to be secure against unreasonable search or seizure” under s. 8 of the Charter.
That said, Charter rights are not absolute; as noted above, s. 1 provides that they are guaranteed “subject … to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. If a government measure in response to COVID-19 limits a Charter right, and if that measure is challenged in court, then the government will be required to show that the limit is justified. Whether the limit is justified will be, “by its very nature[,] a fact-specific inquiry” (RJR—MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199, at para. 133, per McLachlin J.).
Courts will likely accord a broad measure of deference to governments under s. 1 of the Charter. The Supreme Court of Canada has repeatedly speculated that even “a violation of the right to life, liberty or security of the person which is not in accordance with the principles of fundamental justice”, contrary to s. 7 of the Charter, might be justified under s. 1 during “national emergencies”, including “epidemics” (see R. v. Heywood,  3 S.C.R. 671, at pp. 802-803; Reference re s. 94(2) of the Motor Vehicle Act (British Columbia),  2 S.C.R. 486, at p. 518).
Still, this is not a blank cheque. In particular, the government must “show the absence of less drastic means of achieving [its] objective in a real and substantial manner” because “the deprivation of Charter rights [must be] confined to what is reasonably necessary to achieve the state’s object” (Carter v. Canada (Attorney General), 2015 SCC 5, at para. 102, internal citation omitted).
Further, where a limit on a Charter right cannot be properly justified, only Parliament or a provincial legislature can invoke the “notwithstanding clause” in s. 33 of the Charter to limit it nevertheless. The notwithstanding clause is not available to the executive branch. If an executive order made under federal or provincial legislation were struck down as an unconstitutional infringement of a Charter right, then the government could re-impose the measure only if Parliament or the legislature enacted new legislation that invoked the notwithstanding clause. Such legislation would need to declare expressly that it would operate notwithstanding the Charter. The declaration would automatically expire after five years, unless the legislation provided for a quicker expiry, or further legislation renewed the declaration sooner.
Federal and provincial jurisdiction
Unlike the Charter, the Constitution does not contemplate reasonable limits on the division of powers between the federal and provincial legislatures specified in ss. 91 and 92 of the Constitution Act, 1867. If federal or provincial measures imposed in response to COVID-19 transgress jurisdictional limits, they will be unconstitutional.
Parliament has exclusive jurisdiction over, among other things, the regulation of trade and commerce, navigation and shipping, border control, airports, and inter-provincial undertakings such as railways and pipelines. Provincial legislatures have exclusive jurisdiction over property and civil rights and matters of a local or private nature in the province, as well as hospitals and municipal institutions.
Courts will not afford any deference to governments if their emergency measures are challenged as unconstitutional on the basis of the division of powers in ss. 91 and 92 of the Constitution Act, 1867 (see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 55). Nor is there any equivalent to s. 33 of the Charter; neither Parliament nor a provincial legislature can legislate notwithstanding its jurisdictional constraints.
However, courts have recognized an “emergency branch” to Parliament’s power under s. 91 of the Constitution Act, 1867 to “make Laws for the Peace, Order, and good Government of Canada”. The emergency branch permits Parliament temporarily to legislate in areas of provincial jurisdiction if it has a “rational basis” for seeing the intruding measure as “temporarily necessary to meet a situation of … crisis imperiling the well-being of the people of Canada as a whole and requiring Parliament’s stern intervention in the interests of the country as a whole” (Reference re Anti-Inflation Act,  2 S.C.R. 373, at p. 425, per Laskin C.J.). Parliament would likely be afforded significant deference under the emergency branch; courts will likely lack any appetite to second-guess democratically accountable politicians about what constitutes an emergency.
Thus, were the federal Cabinet to proclaim a “public welfare emergency” and invoke its extraordinary powers under the federal Emergencies Act, it would have some leeway to venture beyond Parliament’s ordinary jurisdiction. That is not true of provincial Cabinets invoking provincial public health or emergency legislation, however. Even in an emergency, the provincial legislatures are subject to the usual division of powers rules.
Statutory constraints on governments’ emergency powers
When governments exercise their powers under emergency or public health legislation, they are constrained by the terms of the applicable legislation; they have only such powers as the legislature has given them. Limits on their powers may be enforced through the courts – which have a constitutional duty to ensure that statutory decision-makers act within the bounds of their authority – in judicial review proceedings governed by the principles of administrative law.
In most judicial review proceedings, the question is whether the decision-maker (e.g., a minister) has made a decision that exceeded the scope of, or was otherwise inconsistent with, the legislator’s grant of power. A court will generally defer to a decision-maker’s interpretation of her or his enabling legislation, provided the court sees the interpretation as reasonable.
For example, under s. 13 of the Statistics Act, the Chief Statistician of Statistics Canada can require any business to provide any documents or records that contain information sought “in respect of the objects of this Act”.
If the Chief Statistician made an order under s. 13 in aid of the federal government’s response to COVID-19, and that order were challenged as being beyond the s. 13 power, then the success of the challenge would turn on whether the information sought was “in respect of the objects of this Act”. The court would defer to the Chief Statistician on this issue; the order would likely be upheld unless the court determined that the Chief Statistician’s interpretation of the Statistics Act’s objects was unreasonable – i.e., not “consistent with the text, context and purpose” of the legislation (Vavilov, supra, at para. 120).
If emergency measures adopted in response to the COVID-19 pandemic are challenged in court, governments will usually enjoy significant deference. In considering whether limits on Charter rights may be justified under s. 1, courts are unlikely to second-guess government decisions, necessarily made rapidly, about which measures were (or are) necessary to save lives. Nor, in the administrative law context, would courts quash emergency orders unless they rely on an unreasonable interpretation of the legislation under which they have been made. The single exception to the courts’ deferential posture would be in most challenges based on the division of powers; if the rules of Canadian federalism allegedly have been broken, then no deference is warranted unless Parliament is said to have invoked the emergency branch of its peace, order, and good government power.
Judicial oversight of government action is an essential feature of Canada’s legal landscape. Still, modern principles of public law have never been applied in a pandemic, or in its aftermath. In the coming months, courts may well have to apply those principles urgently, as the extraordinary measures implemented in response to COVID-19 implicate the interests of Canadian businesses, organizations, and individuals. The courts’ task in doing so – and the responsibility of governments – will be to ensure that Canada’s efforts to manage this crisis are consistent with our constitutional commitments and the rule of law.
For more information
Elsewhere, we and our colleagues have discussed:
the powers that governments in every province and territory – British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Yukon, the Northwest Territories, and Nunavut – have exercised, or could exercise, under their respective public health and emergency legislation, and the powers that governments could use to enforce emergency orders made under such legislation;
the powers that the federal government has exercised under the Quarantine Act and the Aeronautics Act, and that it could exercise if it proclaims a “public welfare emergency” under the Emergencies Act; and
the powers that governments have used, or could use, to order businesses to close.
We and our colleagues are also maintaining an up-to-date list of measures that governments across Canada have implemented in response to the COVID-19 pandemic, in our Emergency Measures Tracker. For up-to-date information on COVID-19, and for McCarthy Tétrault’s perspective on the legal issues it presents, please visit our dedicated hub, here.