Judges available for COVID-19 constitutional breaches

Courts ready to maintain rule of law in face of government emergency powers

B.C. high court judges remain available to handle constitutional breaches due to any government misuse of emergency powers, a court spokesman said.

Civil liberties activist have expressed concerns governments could overstep their authorities as they enact extraordinary powers as they work to maintain order during the developing COVID-19 situation.

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Maintaining order, however, is different from maintaining the rule of law, which is paramount under Canadians’ constitutional rights.

As of March 21, COVID-19 cases totalled 424 in B.C., which include 27 hospitalizations and 12 patients in the intensive care unit.

Ten British Columbians have died.

Prime Minister Justin Trudeau is apparently mulling use of the Emergencies Act, the successor to the War Measures Act that his father Pierre Trudeau used to declare martial law in the terrorist FLQ Crisis in 1970.

On March 18, B.C. Public Safety Minister and Solicitor General Mike Farnworth declared a two-week state of emergency, giving him sweeping extraordinary powers.

Canadian Civil Liberties Association executive director Michael Bryant has said governments must remain transparent and accountable for their actions. Those actions must be watchable for the rule of law under the Constitution to be maintained.

And, that’s where the courts come in.

B.C. superior courts spokesman Bruce Cohen, a retired Supreme Court of B.C. justice, said while the courts have limited operations, the judiciary is ensuring the availability of judges to deal with situations as needed.

The courts have a plan to be available to address whatever civil emergency presents as part of the role of the courts to render decisions critical to maintaining the rule of law,” Cohen said.

In Canada, the courts operate as a separate part of government from the legislature and executive arms of government. 

Those powers are set out as different from each other in the Constitution Act 1982.

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