sept. 24. 2020

Ultra Vires: What's wrong with the travel ban decision of Burrage J. in Taylor v. Newfoundland?

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

This critique is isolated to errors that I suggest are made by Burrage J. in his pith and substance determination. Remember, in a division of powers analysis, step 1 is to properly define the ‘matter’ by determining the ‘pith and substance’ of the offending legislative provision. Burrage J. determined the ‘matter’ to be ‘public health’. For reasons explained below I think that is radically insufficient to the point of being wrong.

There are several parts to this critique. The next part (tomorrow) is critique of Burrage’s connecting the ‘matter’ to a provincial head of power.

On September 17 2020, Burrage J. determined that Newfoundland provincial entry restrictions were intra vires. The effect of the holding is that Newfoundland now has power to stop the movement of people across a provincial border.

Burage justified his holding by relying upon a bit of meaningless McLaughlin obiter arising from Ward. Mclaughlin said: it’s not whether the regulations prohibit sales, but why the regulations prohibit sales.

On its face, Mclaughlin’s sentence is inoffensive. Burrage uses the sentence to get himself past step 1 in a pith a substance analysis: defining the dominant purpose of legislation

Burrage finds the dominant purpose of the legislation to be ‘public health’.

What's wrong with this analysis?

Burrage’s mistake #1

Consider the actual legislation in issue. the offending legislation is not the entire Public Health Protection and Promotion Act. Burrage does the subtle judicial trick of looking at the overall wonderfulness of the act in general thereby ignoring the dominant purpose of the specific offending sentence.

Considered alone, the offending sentence is:

28(1) While a declaration of a public health emergency is in effect, the Chief Medical Officer of Health may do one or more of the following for the purpose of protecting the health of the population and preventing, remedying or mitigating the effects of the public health emergency:

(g) make orders restricting travel to or from the province or an area within the province; [emphasis added]

Here is what Lebel (SCC) says about the need to look at the offending sentence as a stand alone target:

[194] Since the purposes and effects of a statute’s many provisions can be different, it is important to consider the impugned provisions separately before considering their connection with the other provisions of the statute.

Here is McLaughlin (majority) in the same case:

[16]…Ordinarily, this Court would begin by examining the impugned provisions in order to determine if and to what extent they intrude on the provincial sphere of competence: see Kirkbi AG v. Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302, at para. 21; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, at para. 58. The advantage of this order of analysis is that if the impugned provisions are not found to intrude at all, “then the investigation need go no further” (General Motors, at p. 667). While courts may nonetheless examine the whole scheme in such cases, we have tended to end the analysis if the individual provisions are not found to be problematic: see Ward v. Canada (Attorney General), 2002 SCC 17, [2002] 1 S.C.R. 569.

Burrage doesn’t do this. Instead Burrage protects the offending provision by saying nice things about the legislation as a whole (222-232). You know the old saying: if you can’t say something nice about a provision, don’t say anything at all.

The dominant purpose of s.28(1)(g) is to ban entry into the province. That’s it. Burrage wants to say: No! that sentence is only the ‘means’ by which the ‘public health’ purpose is accomplished.(240)

By doing it Burrage’s way, (by defining the dominating purpose as something flowery, abstract and supposedly ‘provincial’) the province can now do anything (start a war with Russia, expropriate Alberta oil companies, prohibit public discussion) as means to achieve its abstract purpose.

Burrage’s mistake #2

Problem 2 is that public health is not a defined provincial power under the British North America Act s.92. So Burrage looks for precedent. He looks for a case where a province has done what looks like a federal thing. He looks for a case were the province did the ‘federal’ thing under its ‘health’ power.

In Schneider, British Columbia authorized its public health officials to force heroin addicts into treatment. The provincial powers used were police powers (which the provincial already possesses under s.92). Because the SCC had earlier given control over drugs, legalization and enforcement to the federal government, the BCCA felt compelled to strike down the provincial ‘health’ program. The SCC reversed, upholding the provincial health program under its ‘health’ power. Any aspect that was regulating drugs, though ostensibly federal, was merely incidental.

From this example of a province legislating in its supposed field of ‘health’, Burrage analogizes Newfoundland’s ban on entry.

(my note: Banning entry predicated upon a quarantine measure is federal on both counts).

A province cannot by merely uttering words in legislation in a cute homey provincial way (‘health’) thereby expand its power.

Burrage uttering the word ‘health’ does not thereby save the legislation. Here is what Lebel said in the latest SCC division of powers case:

[190] It is important to identify the pith and substance of the impugned provisions as precisely as possible. A vague or general characterization of the pith and substance could have perverse effects on more than one level: first on the connection with an exclusive power and then on the extent of the overflow. For example, a finding that a provision is in pith and substance in relation to health or to the environment would be problematic. Those subjects are so vast and have so many aspects that, depending on the angle from which they are approached, they can support the exercise of legislative powers of either level of government. It is therefore necessary to take the analysis further and determine what aspect of the field in question is being addressed. Logically, except in cases of highly specific powers, the pith and substance of a provision or a statute will be less general than that of the power itself. If the characterization of the pith and substance of a provision is too general, there is a danger of its being superficially connected with a power of the other level of government. Moreover, in such a case, because of the numerous aspects of the more general subject matters, the extent of the overflow will also necessarily be exaggerated. The identification of the pith and substance of a provision or a statute is therefore subject to the same requirement of precision as the identification of the purpose of a provision establishing a limit in the context of the infringement of a right in an analysis under s. 1 of the Canadian Charter of Rights and Freedoms. In both cases, properly identifying the purpose forms the cornerstone of the analysis (see Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 21). If vague characterizations of the pith and substance of provisions were accepted, this could lead not only to the dilution of and confusion with respect to the constitutional doctrines that have been developed over the years, but also to an erosion of the scope of provincial powers as a result of the federal paramountcy doctrine.

Burrage's mistake #3

The third problem with Burrage’s pith and substance determination is that he essentially ignores ‘effects’.

Here again is Lebel:

[218] Identifying the pith and substance of the impugned provisions involves a consideration not only of their purpose, but also of their effects. “Effects” of the provisions means the actual impact of the application of the provisions on Canadians: Reference re Firearms Act, at para. 18.

The totality of Burrage's thoughts on this 'effects' point is that Taylor can't come to a funeral (233).

What's wrong with this analysis?

Like Roger Taney's minimization of the matter in issue in Dred Scott, Burrage minimizes the meaning and overall effect of Canada now facing 10 internal borders for people. Since the beginning, federalists have attacked provinicial balkanization of the country, from egg marketing to margarine prohibtions to separatists. So powerful are these balkanizing forces that the dairy farm vote in Quebec almost succeeded in making Andrew Sheer prime minister.

The effect of Burrage's decision is that it is the first decision in the country's history to uphold the ban upon people moving between provinces. It upholds a ban upon a Newfoundlander going home. Each time in the past that provinces have played this game (its usually law societies playing this game), thankfully, a supreme court was there to kill the effort. Burrage had a chance to kill this evil early.