The Canadian Judiciary and COVID-19

Later this year, starting next month, Verfassungsblog will be running a symposium on the law and politics of the pandemic. I’m contributing a piece on Canada. Here are some thoughts, building on a book chapter I wrote last summer.

The role of the judiciary has been relatively passive. Monsanto v. Canada (Health), 2020 FC 1053 is a striking example. A journalist who had travelled to the United States to cover the presidential election campaign was ordered to quarantine on his return. The journalist unsuccessfully sought injunctive relief. Little J did not give much weight to the journalist’s argument that he fell within one of the narrowly drawn categories of person to whom the quarantine requirements do not apply (those, for example, living in transborder communities), did not think the journalist would suffer irreparable harm and thought the balance of convenience weighed in favour of the government.

In considering the balance of convenience, Little J commented in expansive terms about the public importance of the quarantine requirements:

It is important not to lose sight of the nature of the public interest at stake in this motion. The Governor in Council has made a clear and unequivocal statement of the public interest by invoking the Quarantine Act and by making the Order entitled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 7. The Governor in Council has determined that an emergency order be made under the Quarantine Act due to a pandemic declared by the World Health Organization…Even asymptomatic persons are required to quarantine for 14 days, under paragraph 3(1)(a). That requirement is a cogent signal about the nature and severity of the risk to public health of the spread of COVID-19 (at paras. 109-110).

This comments indicate a lack of judicial appetite to undo governmental policy in the context of the pandemic.

Another useful example is provided by Schuyler Farms Limited v. Dr. Nesathurai, 2020 ONSC 4711, where the precautionary principle was highly relevant. Under Ontario’s Health Protection and Promotion Act, RSO 1990, c H.7, especially s. 22, medical officers of health in the province’s cities and regions have significant powers to prevent the spread of transmissible disease (including the ability to issue binding orders in respect of individuals and premises). Dr. Nesathurai made an order limiting the number of migrant farm workers who could bunk together while quarantining after their arrival from overseas. The order was more stringent than the relatively permissive guidance – suasion, again – from the federal government. An employer who was hoping to bunk around 20 workers in the same units successfully appealed this order to the Health Services Appeal and Review Board. The Board found the order was not necessary to protect public health. But the Divisional Court quashed the Board’s decision, reasoning amongst other things that Dr. Nesathurai was entitled to have regard to the precautionary principle in making orders under s. 22. Note, however, that the precautionary principle was introduced by the medical officer of health, not the courts. During the pandemic, Canadian judges have been passive actors, reacting to decisions taken by others rather than driving policy themselves.

In exercising this passive, reactive role, Canadian courts have shown significant deference to political judgement and the expertise of medical officials.

Consider Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046. This was a challenge to lockdown measures introduced in Ontario, in the city of Toronto and surrounding areas, in response to rising COVID cases in late 2020. “The Bay” is a department store quite like the American Macy’s or British John Lewis. The Bay argued that the regulations made arbitrary distinctions between department stores, which had to close, and ‘bigbox’ stores like Walmart and Costco, which could remain open. Moreover, The Bay suggested, the regulations had to “evidence-based” and, in the absence of any evidence identifying virus transmission in HBC stores or equivalent outlets, are accordingly invalid.

The challenge was unsuccessful: the overall objective of the empowering legislation was “to provide a flexible approach to balancing the health and safety of Ontarians during the pandemic against the province’s economic and business interests”; even if the measure was imperfectly designed, it was beyond the role of the courts to consider the “wisdom or efficacy” of the difficult policy choices made by the government (at para. 71). The evidence relating to transmission in The Bay’s stores was, accordingly, neither here nor there (at para. 81). As it went to the wisdom or efficacy of the measure, it was not relevant to determining whether the regulation fell within the broad statutory objective of balancing health and safety against economic and business interests.

The Maritime provinces of New Brunswick, Nova Scotia, Newfoundland and Labrador and Prince Edward Island have followed a variety of zero-COVID policies, which have included strict travel bans. One of these bans was the subject of litigation in  Taylor v. Newfoundland and Labrador, 2020 NLSC 125. Ms Taylor’s mother passed away. Ms Taylor was born in Newfoundland but had since become a resident of Nova Scotia. But she could not return for the funeral, because Newfoundland’s chief medical officer of health had instituted a travel ban: only provincial residents, asymptomatic essential workers and those with extenuating circumstances could enter. Two issues arose, one of federalism, one of fundamental rights. In terms of federalism, the travel ban was enacted under valid provincial legislation: at its “core”, it was a “public health measure” (at para. 241) failing within the provincial power to make laws in relation to local matters (at para. 296, citing s. 92(13) of the Constitution Act, 1867). In terms of rights, the travel ban infringed s. 6 of the Charter of Rights and Freedoms, which guarantees mobility rights. However, the ban was justified under s. 1 of the Charter, which permits legislatures to impose proportionate limitations on Charter rights. In concluding that the ban sought to achieve a pressing and substantial objective and was narrowly tailored to meet the objective, the specialized expertise of the chief medical officer of health weighed heavily in the balance (see e.g. at para. 457). Indeed, Burrage J commented very firmly:

[I]t is not an abdication of the court’s responsibility to afford the CMOH an appropriate measure of deference in recognition of (1) the expertise of her office and (2) the sudden emergence of COVID-19 as a novel and deadly disease.  It is also not an abdication of responsibility to give due recognition to the fact that the CMOH, and those in support of that office, face a formidable challenge under difficult circumstances (at para. 464).

Having regard to these considerations, the province was entitled to institute a travel ban rather than relying on contact tracing or other alternatives. As in the non-constitutional challenges considered earlier, the courts showed significant deference to political and medical judgement.  

This content has been updated on January 19, 2021 at 03:44.