Sep 21, 2020

Ultra Vires: So provinces can now prohibit entry?

Taylor v. Newfoundland and Labrador, 2020 NLSC 125 (CanLII)

This is a critique of the decision of Burrage J. upholding the ban on entry into Newfoundland and Labrador by a Newfoundlander trying to return home. If it is upheld it will constitute a linchpin case.

In this commentary I deal only with Burrage's first issue: his handling of 'pith and substance' using Ward v Canada (Attorney General), 2002 SCC 17

Tomorrow I will deal with Burrage's treatment of 'interprovincial' work or undertaking.

Case summary:

Kimberley Taylor was from St John’s Newfoundland. She lived in Halifax. Her mother died in St. John’s on May 5th 2020. Kim wanted to come home for Mom’s funeral. She was required by the Newfoundland Public Health and Promotion Act to request permission to enter Newfoundland. She was denied.

Taylor then constitutionally challenged the provincial entry restriction on the basis that such restriction was firstly, beyond the legislative competence of a province and secondly in breach of s.6 and s.7 of the Charter of Rights and Freedoms.

Burrage J. found the travel restriction to be within the competence of the legislature of Newfoundland and Labrador.

here’s how he arrived at that result:

He sought for the ‘essential character’ of the law, its ‘pith and substance’ (214).

The pith and substance, according to Burrage J. was, protection and promotion of the heath of those in Newfoundland and Labrador. (215).

Having determined a permissibly provincial ‘pith and substance’ Burrage then conveniently slots the restriction into matter of a local and private nature (s.92(16)). (215)

The purpose of the law is (according to Burrage) health promotion.

Burrage asks: What problem was the legislation enacted to solve? (218)

The legislation was enacted to provide a framework for declarations of public health emergencies related to communicable diseases that present a serious risk to the health of the population (222 +228).

Emergency powers to make detailed discretionary decisions invading the personal lives, personal space and person of citizens, is legislatively granted to the chief medical officer of health. (211)

Covid is a public health emergency (224).

The legislation, gives the chief medical officer of health the power to deny entry into the province. (234).

Ward v. Canada (Attorney General), 2002 SCC 17

What case does Burrage turn to for analysis? Ward v. Canada (Attorney General), 2002 SCC 17. In Ward, federal regulation prohibited the sale of young seals.

Newfoundland thought that this might be a matter of property and civil rights. Aren’t ‘sales’ within the province, a provincial matter?

As though Ward was not the most obvious case of federal authority in the history of Canadian constitutional law, McLaughlin set out the analytical steps necessary to show why this was federal.

The control of the killing of seals was the purpose of the legislation (para 24). The legislation had nothing to do with ‘sale’ per se. The legislation arose from a commission of inquiry which determined that the tool of prohibiting sale would thereby prohibit harvest which was the dominant feature of the legislation.

note 1: there was no reason for the Ward case to have gotten so far. Whether ‘fishery’ or ‘sale’, the totality was prima facie federal jurisdiction. There is no provincial head of power titled ‘seal sales’. At most, Newfoundland could pretend to ‘seal sales within the province’ (42). But seals were all aimed at foreign markets, as such, Newfoundland’s position was incoherent from the start.

note 2: The matter went far, I think, because Bill Marshall, the judge whose dissent sent the matter to the SCC, was, in his earlier life, the core of the Newfoundland government which lost the constitutional wars with Ottawa over, offshore oil and Churchill Falls. He was on the front line of Newfoundland’s loss of the seal fishery and ultimately all the fishery. His intellectual position in Ward (federal fishery power is limited to conservation (32) was in line with his long-held intellectual position through those earlier battles – all lost.

note 3: The province’s attack upon the Ward legislation is almost identical to provincial defence of the Lord’s Day Act legislation in the 80’s, where the provinces argued that they were prohibiting ‘sales’ on a particular day, as an aspect of their supposed control over sales and secondarily, labour.

Burrage adopts, in effect, the McLaughlin view in Ward that: ‘its not whether the regulations prohibit the sale as much as why it is prohibited.’ (Ward at para 19)

Burrage takes this as a license to legislate so long as you get the 'why' correct. In other words, as long as the province has a correct ‘why are you banning my entry’ then a province can in law ban entry into the province.

These fatally loose words by Mclaughlin (in Ward), without the careful parametrization of the Ward federal facts, made Burrage think (237) that all he had to do was subjectively characterize the legislation as having a provincial object( health care for Newfoundlanders) and the heavy constitutional lifting is done.

Note 4: Burrage is wrong to use Ward as he does. The unstated context of Ward is that McLaughlin is at all times speaking about a subject that was in every way federal and in no ways provincial. For Burrage’s use of precedent to be valid he would have had to choose a case where provincial legislation asserted a prima facie federally enumerated power. Ward was federal legislation asserting prima facie federally enumerated power.

McLaughlin in Ward, having found the pith and substance of the legislation to be the prohibition of harvesting (using ‘sale’ as the tool to achieve the dominant purpose), Mclaughlin then asks whether prohibiting harvesting is within federal power (29)

What is the scope of the federal fisheries power?

Fisheries power is not confined to conservation (34-41)

Mclaughlin suggests that there might be some provincial power in the manufacturing and sale aspect of fish. She misses the point! Seals are meant for the international market. That is trade outside the province. So whatever words are wasted in McLaughlin condescending to property and civil rights, that nonsense stops the moment the ‘sale’ is meant for an extra-provincial destination.

Mclaughlin ultimately finds that the federal fishery power is ample for the purpose (50).

How does Ward help Burrage in his finding that the matter is within provincial local work or undertaking power?

Burrage suggests that Ward allows him to subjectively characterize the pith and substance of the offending legislation as provincial health legislation (232). Certainly, provincial citizens are no doubt aided by the ban on anyone entering Newfoundland. But is the ban provision not primarily a quarantinemeasure? Is that not the ‘dominant feature’? Isn’t the logic: I keep you out, you don’t bring the plague in. What is that if not quarantine?

Note 5: Oh right! Quarantine is strictly federal (s.91 (11))! Time for Burrage to scramble. What to do? (Burrage messing up quarantine analysis is for tomorrow).

According to Burrage, the applicant chose to characterize the issue as regulation of ‘travel’. Travel is the least critical aspect to this legislative conduct. (How many times have we seen judges mis-characterize in order to dismiss). Burrage’s message is: Who really cares if the province manages ‘travel’? We will see that even here Burrage is federally-cornered. He doesn’t see it that way.

My pith and substance comment:

The 'pith and substance of this legislation is not 'health' per se. Health is only the most general aspect of this legislation. Health is the overall purpose to be distinguished from the constitutionally relevant purpose. Every statute is concerned with 'health', from building hospitals to banning strikes of health care workers to forcing nurses to take flu shots. If Burrage's vague 'health' purpose were accepted as the pith and substance it would license every outrage, as though 'public health' fanaticism does not already license sufficient infringement of English freedom.

Health is not the constitutionally relevant purpose. It’s not the constitutionally relevant purpose because the constitutionally relevant purpose is the fundamental operational thing that the legislation is doing.

Here is the SCC latest comment on this exact problem that Burrage’s approach exemplifies:

166 Moreover, in the identification of the pith and substance of a law, legislative form cannot trump the substance of the law. Again, as my colleague Justice Karakatsanis helpfully notes, it is right to be mindful that the goal of this characterization exercise is to identify the law's true subject matter, even when "it differs from its apparent or stated subject matter" (para. 28). Indeed, the apparent purpose or formal indicia of purpose can occasionally be what Newbury J.A. called a "smokescreen" for a matter lying outside the enacting government's jurisdiction (see Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, 25 B.C.L.R. (6th) 1, at para. 13, aff'd 2020 SCC 1). Courts must therefore be careful not to let form control the inquiry; they should examine the substance of the legislation "to determine what the legislature is really doing" (R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 496).

The practical evidence showing that the entry-ban lies outside provincial authority comes from the fact that, although Burrage goes to great lengths explaining the detailed chronology of the overall Act, by way of justifying it, he then passes over (sub silentio) the fact that the offending clause was not in the original act but brought into being in the middle of the COVID crisis.

The relevance of this is that the entry ban is a stand-alone measure. Why wasn’t it in the original act if it was such an organic part of ‘public health’ legislation? The Act was passed to address the last SARS crisis. Why didn’t the province put an entry ban in the original legislation? Because the province knew it was questionable.

Later, in the May 2020 frenzy of a crisis, the province passed this more stand-alone aggressive measure which the province earlier thought to be no part of its ‘public health' legislation. Typically Burrage thinks nothing of this.

Ultimately Burrage’s error is in his failure to determine the ‘pith and substance’ of the provision to be an entry ban. The fact that this entry ban was predicated upon ‘public health’ which is conceded, does not change the pith and substance of what the dominant feature of the provision is.

So, the next question is (tomorrow): a ban upon interprovincial movement, predicated upon a communicable disease; what class of subjects does that matter fall into?