During the pandemic, precisely on 27 March 2020, the Government of Yukon declared a state of emergency under the Civil Emergency Measures Act (CEMA).

Section 9 of the CEMA stipulates that when a state of emergency has been declared to exist, the Minister may do all things considered advisable for the purpose of dealing with the emergency and may do those acts considered necessary inter alia for the protection of persons and property; maintaining, clearing and controlling the use of roads and streets; requisitioning or otherwise obtaining and distributing accommodation, food and clothing and providing other welfare services; providing and maintaining water supplies, electrical power and sewage disposal. The Minister can also make regulations considered proper to put into effect any civil emergency plan and require any municipality to provide assistance as considered necessary during the emergency and authorize the payment of the cost of that assistance out of the revenues of the Government of the Yukon.

A citizen of the Yukon who was negatively affected by the imposition of executive orders during the state of emergency filed suit contending that the CEMA constituted an unconstitutional surrender of Yukon's legislative authority. He argued that the Constitution provided that it was for the legislature to formulate policy decisions within the framework of legal principles such as the rule of law, democracy, parliamentary sovereignty, responsible government, and the separation of powers. His central argument was that the CEMA is unconstitutional because it grants the executive branch of the Yukon the power to determine policy and enact laws without effective oversight or accountability to the legislature or judiciary.

By judgment of 3 November 2023, the Supreme Court of Yukon rejected the plaintiff’s claims.

First, the Court held that a delegation of powers including policy-making is not an abdication of legislative responsibility. Indeed, CEMA does not remove the ability of the Legislature to amend, repeal, revoke, constrain, or expand the legislation and this demonstrates the retention of necessary legislative supervisory authority by the Legislature over the executive.

Second, the Court noted that the Legislature had placed limits on the powers conferred on the executive (e.g., by clearly defining the situation in which a state of emergency can be declared). The Court underlined that “while the powers permitted under CEMA are broad, they are circumscribed by those constitutional parameters. Moreover, even if the executive did exercise powers beyond the authority set out in CEMA this would not constitutionally invalidate CEMA. The remedy in that instance would be to challenge the exercise of that particular power through judicial review, not the enabling statute”.

On this basis, the Court dismissed the application filed by the plaintiff.

Reference: M. v. Yukon, 3 November 2023, Supreme Court of Yukon.

Full text of the decision available at canlii.org en