Our Minister of Justice has a key role to play in assuring the public that the proper checks and balances are in place as we all continue to accept the limitation of civil liberties. Unfortunately in our COVID-19 response, we are dealing with outdated legislation, as is often the case in the NWT. Due to the inconsistencies in the legislative authority we are operating under, some legal clarification from our Justice department is needed. However the problem with this, is that GNWT legal opinions are not public, such that it is difficult to determine where they stand in all this.
As an example our Public Health Act section 33(1)(j) states that during a Public Health Emergency the Chief Public Health Officer is permitted to: "enter or authorize any person implementing a direction or order from the Chief Public Health Officer to enter any premises, including a dwelling place, without a warrant." At first sight, this section is unconstitutional, but that isn't because of anything nefarious - it's just outdated wording. Warrants without searches can only occur in “exigent circumstances”. Nothing we write in our legislation will change the settled state of the law under our Charter.
The broad nature of the most recent ban on "gatherings' means that everyone is having a field day coming up with scenarios in which it should not apply. Including the GNWT, and to their credit they are ever expanding the FAQs surrounding COVID. As an example, I am still awaiting a response to my request that a workable exemption be given to those who don’t have “households” and for those fleeing domestic violence. I believe we need to establish a method of seeking exemptions based on compassionate grounds. An example of such language can be found in BC’s orders. Currently our FAQ website is dictating which parts of the law will be enforced, but we run into a problem when this differs from the precise wording that will be used by a Judge.
There are numerous Charter questions raised in exercising these powers, and I believe we should ask the NWT Supreme Court to assure we are complying with the Constitution in regards to the breadth of the order. The Chief Public Health Officer has the ability to refer any question of law to the Court for clarification under the Act. There are so many questions being raised by lawyers across the territory and this post just scratches the surface. It is not meant to be a definitive legal analysis, but to spark a conversation. I believe such key constitutional questions are best suited to be answered by the Judicial Branch preemptively, rather than just waiting for defence lawyers to tear any charges apart after the fact. We can proactively get the courts to provide us guidance, and I believe that is a better solution than the risk of losing legitimacy in court after the first ticket is handed out.
A similar legal concern is that the current orders by the Chief Public Health Officer are issued under the section 25 regular powers under the Public Health Act, not the section 35 emergency powers. This implies that the broad orders we have seen to date are not actually contingent on the existence of a public health emergency, and could in fact be issued at any time. To the drafter's credit, the order banning gatherings have added a condition that they are only in effect while the Public Health Emergency is in place - this is an appropriate interim solution. However, it means that we are operating under an interpretation that the measures being implemented now have always been within the regular powers of the Chief Public Health Officer, regardless of a Public Health Emergency being declared. Does it really make sense that the powers available without an emergency are in fact broader, and as we have seen, seemingly limitless, as compared to the ones available in an emergency? This is clear flaw in the legislation, which has led the GNWT to operate at questionable limits of their legislative authority. The solution is not to get rid of these orders, but for Justice to bring a legislative amendment which remedies and clarifies these sections in the Public Health Act to be approved by our elected officials.
This issue is compounded if our Minister Of Health does not provide accountability and oversight the Office of the Chief Public Health Officer. The Chief Public Health Officer must be given deference when it comes to medical decisions - but the Minister is still responsible for challenging the assumptions and assessing all decisions coming out of their department. This responsibility includes revisiting the decision to extend the Public Health Emergency every two weeks. Further to this, the public should not be excluded from these decisions and processes. Transparency is our ally in building public trust.
As an MLA my role is not to criticize public servants, but if a Minister fails to provide that oversight, then we are missing the ministerial responsibility that is key to our democracy. It also means I can’t do my job in getting answers to my constituents. I am not allowed to pick up the phone and call the Chief Public Health Officer. I get my answers from the Minister, but if the Minister doesn’t have all the data, then we are all left without democratic oversight.
As such, our Ministers must fully understand their roles. There are various solutions to the these issues, whether it be a legislative amendment or Ministers pushing back on their departments more. Perhaps this is occurring, but it's not public so I am left with concern that our democratic oversight is not where it should be. Similarly, the Premier now has the unilateral power to establish a state of emergency, having taken on the MACA portfolio. Such power needs a check, and the Act should be amended to require the renewal of the state of emergency to be approved by the legislature after an extended period of emergency.
Overall, I am not intending to critique the government’s response to date. I am, in fact, very proud of our response so far. Many of these problems arise from the fact that the legislation we are using was never designed for this situation. But, in that regard, the response from the GNWT has been to push the limits of its authority, rather than seeking approval from the legislature. As such, I believe our legislature needs to resume sitting (using a digital solution) as soon as possible, to provide the much-needed democratic oversight during this time. During the immediate response to this situation, it may have been practical to let such issues slide, but as we enter into this after weeks of response it is inexcusable to be ignoring fundamental constitutional principles.
Public Health Act
Order Banning Gatherings
Canadian Civil Liberties Association Letter
Cabin Radio Article on COVID Civil Liberties
COVID Gathering FAQs