Yukon Civil Emergency Measures Act legal challenge fails for 2nd time
By Gabrielle Plonka
Yukon judge upholds arguments made in the initial dismissal in 2023
The Yukon Court of Appeal has dismissed a legal challenge to the territory’s Civil Emergency Measures Act (CEMA) for a second time.
The original lawsuit, filed in 2020, was dismissed by Supreme Court Chief Justice Suzanne Duncan in November 2023. The seven plaintiffs, primarily represented by Ross Mercer, appealed the decision in December 2023.
The 2020 lawsuit and 2023 appeal both argued that CEMA — which was used to create and enforce public health rules and restrictions during the COVID-19 pandemic — was unconstitutional and gave politicians too much power without sufficient oversight. They wanted the legislation struck down.
The appeal says Duncan “fundamentally misunderstood” their argument, including the role of unwritten constitutional principles and the importance of the Yukon Act’s principle of reasonable government.
They also claim Duncan mischaracterized their motivation as a political disagreement with decisions made during the pandemic, instead of a broader argument against CEMA.
Justice G. Bruce Butler dismissed the appeal in a decision published on May 16. It was supported by Chief Justice Leonard Marchand and Justice Sheila MacPherson.
Butler backed Duncan’s reasoning against Mercer’s arguments. He said Mercer’s claim that CEMA overrides responsible government is “fanciful and entirely lacking in merit,” and accused Mercer of quoting various authorities out of context to make his argument.
Butler said Mercer ignored the practical role of CEMA during the pandemic, which only allowed the minister power in direct response to the stated emergency. The Yukon Legislature also continued to debate and pass legislation during the pandemic while CEMA was in place.
“[CEMA] does not allow the legislature to be ‘dispensed with’ as Mr. Mercer suggests,” reads Butler’s decision.
Butler agreed with a submission from the Yukon government, which said CEMA itself was a product of democratic process as it was passed by the Yukon Legislative Assembly and the same process, not a judge, should be used to change it.
Butler said he found no errors in Duncan’s initial reasoning, which he described as “comprehensive, thoughtful, and responsive to the arguments made by the plaintiffs.”
Related stories from around the North:
Canada: Yukon court dismisses challenge of law used to enact COVID-19 rules, CBC News
