On the Doctrine of Necessity: The Division of Powers Does Not Apply During a Pandemic

Quebec imposed this unconstitutional bordercheckpoint on its side of the Portage Bridge, screening motorists entering from Ontario and turning some back. I took this photo myself on the late afternoon of 2 April 2020.

On 1 April, Quebec announced what I presumed at the time must have been an April Fool’s Joke: that it would use its provincial police, La Sûreté du Québec, and municipal police forces to set up border checkpoints with Ontario, New Brunswick, and Labrador. New Brunswick as of 25 March and Nova Scotia as of 23 March had imposed similar measures using provincial peace officers to man border checkpoints. (They wouldn’t dare try to use the RCMP contracted to conduct provincial policing in New Brunswick and Nova Scotia). However, section 92 of the Constitution Act, 1867 does not provide the provinces the authority to impose controls and checkpoints against other provinces, irrespective of whatever declarations of emergency they have made at the provincial level. Their legislatures lack the head of power to enact statutes which touch upon this competency, and their executives therefore lack the authority to enforce such a thing.

Since the provinces can only act within their strictly enumerated competencies and areas of jurisdiction under section 92, this particular authority goes to the federal order of government by default under section 91 – triply so, in this case. The authority to set up internal border checkpoints would fall to Ottawa under the Peace, Order, and Good Government (POGG) Clause, whereby non-enumerated authorities fall to the federal order of government, as well as, more precisely, under both sections 91(10), “Navigation and Shipping”, and 91(11), “Quarantine and the Establishment and Maintenance of Marine Hospitals” — with the emphasis on “Navigation” and “Quarantine” in this case. The fact that the Government of Canada has chosen not to exercise this authority does not somehow transfer it to the provinces, nor can the provinces invoke the Doctrine of Necessity to impose it. The division of powers cannot be loaned out or delegated without a constitutional amendment, such as the Constitution Act, 1940 that added “Unemployment Insurance” as item “2A” to Ottawa’s jurisdiction under section 91. Yet this pandemic has defenestrated the Constitution of Canada, and very few seem to notice or care.

The Doctrine of Necessity – a concept little known in Canadian law, but perhaps better known in political science in Canada – refers to the idea that the executive under exceptional circumstances must sometimes act outside of the confines of the constitution in order to save the constitution and the overall order and continuity of the State.[1] President Lincoln had to impose drastic measures, such as suspending the writ of habeas corpus, to save the Union and prosecute the Civil War. In The Dark Knight, Harvey Dent mentions that the Romans would suspend their constitution and elect a temporary dictator to protect the city from invasion. These examples would fall under the Doctrine of Necessity. Anne Twomey, Professor of Law at the University of Sydney and the foremost expert in the entire Commonwealth on these matters, continues:

The key conditions to an exercise of the principle of necessity are that there must be no other course of action reasonably available and any action must be: temporary only; undertaken bona fide; proportionate to the problem faced; and for the purpose of the preservation of the State and its people and the restoration of constitutionality, rather than the achievement of other aims, such as constitutional change. Such a power cannot be exercised to support the continuation in office of an illegal regime or to breach fundamental rights. It is only available to protect, not to destroy, the legal and constitutional order.[2]

What Quebec, New Brunswick, and Nova Scotia have done fails to meet this test. First and foremost, the course of action reasonably available would come from Ottawa or not at all. These provinces are subverting the division of powers under the constitution and not for the purposes of restoring constitutionality.

In a recent post on Centre of Constitutional Studies’ website, Sujit Choudhry, an expert in constitutional law, pointed out that these border checkpoints also violate sections 6 and 7 of the Charter in addition to the division of powers under sections 91 and 92.

Interprovincial travel restrictions also raise potential constitutional issues. A number of provinces are reported to have set up border checkpoints — for example, along the Nova Scotia-New Brunswick border and on the Alexandra Bridge in Gatineau. Provincial governments are reportedly stopping vehicles, requesting identification, asking travelers about the purpose of their visit, and enforcing a ban against “non-essential” travel. If this is in fact occurring, it raises three constitutional issues. First, under s. 6(2) of the Charter, Canadians and permanent residents have the right to economic mobility — that is “to move to and take up residence in any province” and “to pursue the gaining of a livelihood in any province.” This right would encompass the inter-provincial provision of a service. However, it does not extend to strictly social travel — for example, to visit an ailing family member. Second, travel for non-economic purposes is arguably protected by s. 7 of the Charter, which protects the right to liberty. Third, interprovincial transportation falls under federal jurisdiction, under s. 92(10)(a) of the Constitution Act, 1867, which entails that a province “must not prevent or restrict interprovincial traffic”, as the Privy Council held in Attorney-General (Ontario) v. Winner.[3]

I concur with his findings here as well. Perhaps it’s also worth noting that the Notwithstanding Clause, section 33 in the Charter, expressly saves the freedom of mobility under section 6. The Parliament of Canada and provincial legislatures “may expressly declare in an Act of Parliament or of the legislature […] that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” Under no circumstances may parliament or the legislatures enact a statute which knowingly and obviously violates the freedom of mobility, which suggests that the Framers in 1982 placed great importance upon it. While it is possible that these border checkpoints violating our freedoms of movement within Canada and basic personal liberties could survive judicial scrutiny and be saved under the Reasonable Limits Clause as a justified and temporary infringements on our rights, nothing within the Constitution of Canada permits temporary violations of the division of powers between the federal and provincial orders of government. This is absolute.

The police were tearing down this border checkpoint on Quebec’s side of the approach to the Alexandra Bridge when I walked by on 2 April 2020.

In his analysis, Choudhry qualifies his description of Quebec’s border checkpoints with Ontario with “If this is in fact occurring.” I can understand why – after all, we cannot travel within Canada so easily at the moment. However, I will like to use this blogpost to confirm, from my own observations, that this has, in fact, occurred. On the afternoon and early evening of 2 April 2020, I walked a loop in Ottawa and Gatineau across the Alexandra Bridge and west along Laurier Street in Gatineau to the Portage Bridge. At both locations, I found active border checkpoints where Gatineau’s municipal police were stopping vehicles coming across from Ottawa. I took photos at both locations and also shot this video footage of the border checkpoint at the Portage Bridge. I observed the latter checkpoint for about twenty minutes.

Quebec’s border controls are not only unconstitutional; they’re also laughably inept. A utilitarian argument in favour of these controls and checkpoints based on the Doctrine of Necessity would thereby fall quickly unravel. The police only set up these checkpoints at certain times of the day (from what I’ve heard and seen, from around 0800 to 2000), thus removing the allegedly necessary protection against spreading the Coronavirus at night. Furthermore, as my video footage shows, the police were not wearing masks (at least in early April when they first erected the checkpoints) and were breathing moistly on all the motorists whom they stopped. The police stood directly beside the open windows of these vehicles, not even maintaining physical distancing. Ironically, these police officers could therefore have become unwitting vectors of transmission for the very disease the spread of which they were trying to contain. Finally, as my video footage shows, you can see that this police officer on 2 April 2020 only stopped traffic trying to turn left from the Portage Bridge onto Laurier Avenue, but vehicles could continue straight on Maisonneuve Boulevard or even turn right onto Laurier Avenue unmolested. What if those drivers had been carrying the Coronavirus? Even if this were not unconstitutional, the utilitarian argument based on efficacy disintegrates.

In a way, my original thought on these border checkpoints – that the announcement on 1 April constituted a bad April Fool’s Day prank – wasn’t far off the mark. These border checkpoints were an unconstitutional and ineffective joke, amounting to nothing more than a show of force and a desperate attempt by Premier Legault to be seen to be doing something. Quebec announced that its police forces will finally drop the charade and dismantle the checkpoints as of 18 May 2020.

Only the federal order of government has the authority to do what Quebec, New Brunswick, and Nova Scotia have done.

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[1] Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018), 13-15.

[2] Ibid., 14-15.

[3] Sujit Choudhry, “Part Two: COVID-19 & the Canadian Constitution,” blogpost for the Centre for Constitutional Studies at the University of Alberta, 12 May 2020.


About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Constitution (Written), Division of Powers, Doctrine of Necessity. Bookmark the permalink.

7 Responses to On the Doctrine of Necessity: The Division of Powers Does Not Apply During a Pandemic

  1. Pingback: NL Election 2021: Political Science Fiction — The Indy

  2. Pingback: ‘Province Still Ignoring The Constitution’ – Constitution Canadian

  3. Donald Bur says:

    Uncle Bob is exactly right. The 1867 Act refers to the “distribution” of powers rather than the division of powers. The latter term is often used in the US, interchangeably to refer to the separation of powers or the distribution of powers, but in Canada separation is the correct term.
    The main problem with the article is that it is wrong from a separation of powers point of view. Sections 91 and 92 provided an exhaustive distribution of powers, and accordingly any concept of necessity is irrelevant. Either Parliament has the power, or the provinces do. There is lots of authority for the proposition that provinces can enact laws in relation to health, prevention of harm and even local emergencies. Given this authority, (and ignoring for the moment that POGG actually means anything), there is no reason to try to bring this type of matter within the federal residual clause in the introduction to section 91. Further, the class of navigation and shipping makes no sense.
    The most likely federal class, as you point out, is s. 91(11) which is Quarantine and Marine Hospitals. This class was designed, in part, to ensure that people coming on boats could be separated from the rest of the population if they were considered to be sick. That federal power can no doubt be used today for people arriving by plane, or by car across the border. There is no reason why it couldn’t also be the basis for requiring certain Canadians, already in the country, to stay in a particular place for a period of time if they have been infected. However, the law that you wrote about was not about quarantining sick people, it was preventing people from crossing provincial borders and s. 91(11) would likely not be useful in that regard.
    You also referred to Sujit Choudhry’s comment that “interprovincial transportation falls under federal jurisdiction, under s. 92(10)(a) of the Constitution Act, 1867, which entails that a province “must not prevent or restrict interprovincial traffic”, as the Privy Council held in Attorney-General (Ontario) v. Winner.” However, s. 92(10)(a) of the 1867 Act allows the federal Parliament to make laws in relation to interprovincial works and undertakings. In Winner that was an international bus service and the Privy Council decided (wrongly in my view) that that was an interprovincial undertaking. While I agree that the provinces cannot legislate in relation to matters of interprovincial works and undertakings, in preventing people from one province to come to another for weddings, or funerals, to visit friends or as tourists has nothing whatsoever to do with interprovincial works and undertakings. It is simply a matter of health.
    Finally, while my main concern was with the distribution of powers issues, I can’t leave without commenting on the Charter. There is no doubt that these types of laws engage certain provisions. S. 6 guarantees people the right to (a) move to a province to take up residence and (b) move to a province to pursue the gaining of a livelihood. I don’t know if there is any evidence that these laws prevented people from doing those things, as opposed to simply coming to the province for other reasons. Was anyone moving to other provinces to take up jobs during the pandemic, when jobs were being lost everywhere? Certainly s. 7 is also engaged. However, let us not forget section 1. Are we really saying that these types of laws, that prevented people from socializing including cross-border socializing, could not be justified?


  4. Rand Dyck says:

    As one of his former profs and greatest admirers, I would advise: don’t argue with James. I don’t!!! LOL I never heard of the doctrine of necessity before!


  5. P B says:

    Very good piece. I would also like to read your views on how our Parliament has completely stopped functioning under this modern-day War Measures Act.


  6. very good again …. except it’s 91 – VI. DISTRIBUTION OF LEGISLATIVE POWERS


    • “Division of powers” is a standard term in law and political science to denote how a constitution allocates different competencies and areas of jurisdiction to two or more orders of government. Look it up. I’m not trying to quote the Constitution Act, 1867 when I say “division of powers.”

      Liked by 1 person

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