(just a quick synopsis)
Eight people appealed a decision that certain COVID-19 public health measures were constitutional. The Court found the appeal moot because the underlying regulation has already been revoked. It declined to exercise its discretion to hear the appeal anyway.
(your key takeaways)
- A request to declare a regulation invalid due to unconstitutionality may be moot if the regulation has already been revoked.
- The constitutionality of public health measures are best considered in the presence of a live controversy, based on the factual context at issue.
- Several Canadian courts have provided guidance on applying Charter rights to public health responses in the COVID-19 pandemic.
(links to the full judicial reasons)
Facts
Eight people brought an application arguing that Ontario Regulation 364/20 breached several rights under the Canadian Charter of Rights and Freedoms: s 2(a) (freedom of religion), s 7 (life, liberty, and security of the person), s 8 (unreasonable search and seizure), and s 15 (equality). Among other things, they sought declarations that unconstitutional sections of the regulation be declared invalid. They also sought damages.
O. Reg. 364/20 was a public health measure enacted within the COVID-19 pandemic. This emergency regulation required persons entering certain public facilities (e.g., restaurants, sporting arenas, fitness facilities) to show proof of COVID-19 vaccination prior to entry, among other things. Enforcement of the vaccination requirement ceased on March 1, 2022, and the regulation was ultimately revoked on April 27, 2022.
The application judge dismissed the application, finding no contravention of the Charter. The applicants appealed to the Court of Appeal for Ontario, but the Court requested submissions on whether the appeal was moot.
Issue
Was the appeal moot?
Held
Yes (unanimous).
REASONS
Applying the two-part test from Borowski v Canada (Attorney General), the Court found that the appeal was moot, and that it should not exercise its discretion to hear the case.
First, the Court held that the revocation of the regulation rendered the appeal moot. Granting the declaratory relief of invalidity would have no practical effect, and the mootness was not cured by the claim for damages.
Second, the Court declined to exercise its discretion to hear and decide the issues anyway. The relevant factors under this part of the test were considered: judicial economy, the utility of the court in deciding the issues, the need for sensitivity to the court’s function, and whether the dispute is rooted in the adversarial system.
The Court was concerned about the first two factors. The legal issues required a fact-specific analysis, and the Court was “not satisfied” using judicial resources to decide issues about a revoked regulation was “wise.” There was no basis to assume future public health measures would take the same form as the regulation.
The Court also found sufficient judicial guidance on applying Charter rights to public health responses in the COVID-19 pandemic. Courts across the country have found no (or no unjustified) breach of the Charter. The constitutionality of future public health measures is better considered in the presence of a “live controversy.”