Delegation of Powers and the Pandemic: Gateway Bible Baptist Church et al. v. Manitoba et al. 2021 MBQB 218
I am working on a paper (for the International Academy of Comparative Law) on Canada’s response to the COVID-19 pandemic, from a public law perspective.
As I have written previously, it is settled law in Canada that legislatures can make broad delegations of authority to administrative decision-makers, including delegations to address public health crises. A challenge to this settled law was rejected in Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 218.
Here, the applicants argued that ss. 13 and 67 of the Public Health Act, CCSM c P210 were unconstitutional because they vested sweeping authority in an unelected official, the Chief Public Health Officer. Section 67(2), which can be invoked where there is a public health emergency, gives a flavour of the breadth of the delegation:
(a) issue directions, for the purpose of managing the threat, to a regional health authority, health corporation, health care organization, operator of a laboratory, operator of a licensed emergency medical response system, health professional or health care provider, including directions about
(i) identifying and managing cases,
(ii) controlling infection,
(iii) managing hospitals, personal care homes and other health care facilities and emergency medical response services, and
(iv) managing and distributing equipment and supplies;
(a.1) issue an order prohibiting or restricting
(i) a person or class of persons being employed by or working at more than one hospital, personal care home or other facility, or any combination of them, at the same time, or
(ii) a person assigning work at a hospital, personal care home or other facility to a person who — within the period immediately before beginning the assignment, as specified in the order — has
(A) been employed by or worked at a different hospital, personal care home or facility, or
(B) provided home care services;
(a.2) in the case of a person who, at the same time, is employed by or working at more than one hospital, personal care home or other facility, or any combination of them, issue an order directing the person to work at only one of them;
(a.3) issue an order prohibiting or restricting persons from travelling to, from or within a specified area, or requiring persons who are doing so to take specified actions;
(b) order the owner, occupant or person who appears to be in charge of any place or premises to deliver up possession of it to the minister for use as a temporary isolation or quarantine facility;
(c) order a public place or premises to be closed;
(d) order persons not to assemble in a public gathering in a specified area;
(d.1) order persons to take specified measures to prevent the spread of a communicable disease, including persons who arrive in Manitoba from another province, territory or country;
(e) order a person who the chief public health officer reasonably believes is not protected against a communicable disease to do one or both of the following:
(i) be immunized, or take any other preventive measures,
(ii) refrain from any activity or employment that poses a significant risk of infection, until the chief public health officer considers the risk of infection no longer exists;
(f) order an employer to exclude from a place of employment any person subject to an order under subclause (e)(ii).
This is not an uncommon feature of Canadian public health legislation. The s. 67 powers (which can, under s. 13, be exercised by delegates) are also subject to a variety of constraints (see para. 17). Most importantly, the existence of a public health emergency, as defined in s. 67(1), is a condition precedent to the exercise of the powers and the s. 67 powers cannot (for the most part) be exercised without ministerial approval: s. 67(3).
Is this statute unconstitutional? Taking as his starting point the proposition that “such delegation [is] a necessary reality of Canada’s modern regulatory state” (at para. 30). Joyal CJ held it is not.
First, there was nothing undemocratic about the statute:
Democratic accountability is clearly assured when the delegation in question was enacted by a sovereign legislature. In that regard, the legislature can at any time, amend, expand, constrain or altogether eliminate the delegation. It can also choose to override any subordinate regulation, rule, order or decision. It should also not be forgotten that the minister, who must approve the impugned PHOs, is directly accountable to legislature (at para. 32).
Indeed, Joyal CJ saw the legislation as entirely consistent with judicial recognition of the need for delegated decision-making:
In the “modern Canadian state”, administrative decisions currently range from the routine to the life altering, from matters of “high policy” to the “pure law”. The legislative history of the PHA suggests that the rationales that motivated the delegation of emergency powers to the CPHO, are similar to those typically invoked when delegating powers to administrative decision makers. In the case of the CPHO, there was an obvious need for medical expertise and prompt, flexible responses during a public health emergency (at para. 37; see also at para. 55, on the need for flexible, rapid responses in the context of a pandemic).
Unsurprisingly, in light of these comments, Joyal CJ found no violation of the unwritten constitutional principle of democracy. For substantially the same reasons, there was no interference with the separation of powers, as “all three branches of government play their appropriate and unique role” in making, applying and interpreting the legislation and the Constitution (at para. 45).
Nor was there a breach of the rule of law:
It is obvious that administrative bodies are required to act within the confines of their statutory authority in the Constitution. In that context, and in the context of any discussion about delegated power, the rule of law is assured and preserved by making available judicial review. To the extent that the applicants have concerns that the CPHO might act arbitrarily or in excess of his or her authority under the enabling act or indeed, exercise power in a manner that violates Charter rights, those concerns can be addressed by judicial review. Those concerns however, should not be conflated with or be seen to have a bearing on, the constitutional validity of the underlying statutory delegation itself (see Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, at paragraph 125) (at para. 44. See also, on this point Volpe v. Canada (Governor General), 2021 FC 1133 ).
And even if there had been a breach of one of these unwritten constitutional principles, “unwritten constitutional principles do not and should not provide an independent basis to strike down legislation” (at para. 47).
Lastly, as the public health orders made under s. 67 were not laws, there was no requirement for royal assent: the applicants’ argument that “the CPHO is acting as a de facto legislature with the minister of health usurping the role of the Lieutenant Governor” was, as such, misguided (at para. 53).
None of this is especially surprising. As I noted previously, the strongest support from Canadian courts for delegation has come in times of emergency. There may be scope for debate about whether the COVID-19 pandemic qualifies as an emergency, but there is no doubt that it has called for rapid, flexible responses on the part of public officials, exactly the sort of conditions favouring broad delegations of decision-making authority.
This content has been updated on October 29, 2021 at 15:20.