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Yukon contractors launch Charter challenge to COVID-19 restrictions

A group of contractors involved in mining and other activities say the territorial government has gone too far.

The lawsuit was filed on Tuesday with the Yukon Supreme Court

A group of business people have petitioned the Yukon Supreme Court to declare the territory's COVID-19 restrictions unconstitutional. (Dave Croft/CBC)

A group of contractors involved in mining and other activities say the territorial government has gone too far.

On Tuesday, the Yukon contractors launched a lawsuit in Yukon Supreme Court challenging the territorial government's COVID-19 restrictions.

They say the laws violate the Charter of Rights and Freedoms and are beyond the legislative powers of the Yukon government.

The document says the government has been exercising its powers since March, "with an unprecedented lack of oversight, transparency and accountability."

"It now proposes to continue doing so until September 2020," it reads in part.

The lawsuit petitions the Yukon Supreme Court to declare that restrictions found to be unconstitutional have "no force and effect."

It also challenges the orders of Yukon's Chief Medical Officer of Health, Dr. Brendan Hanley, whose "advice ... has been elevated to legal imperative," and "permeates all aspects of Yukoners' lives and all areas of business."

Yukon Premier Sandy Silver, foreground, and Chief Medical Officer of Health Brendan Hanley at a Whitehorse briefing in April. (Government of Yukon/Alistair Maitland)

One of the contractors who has joined the suit is Trent Jamieson. His company, Midnight Sun Drilling, works on mining, environmental and geotechnical projects.

Jamieson has copied CBC on emails sent to the government and others in recent weeks.

In one, he references the impact the COVID-19 restrictions have had on his business, particularly cross-border travel restrictions which, he says, have prevented him taking on projects that involve bringing in employees from outside the Yukon.

"We currently employ 25 full-time and up to 10 part-time staff — that's 35 families we are personally responsible for," he says in the email.

"So it goes without saying that I lay awake at night worrying about the future."

Other groups have also called out territory's restrictions

Workers in industries that are deemed essential jobs — like mining-related jobs — can enter the territory, but they must self-isolate in Yukon for 14 days.

The lawsuit notes the territory has had no active cases of COVID-19 since May 1.

It's not the first group calling out the territory's border restrictions.

In late May, the Canadian Civil Liberties Association argued that the territory's border restrictions were unconstitutional. The territory's opposition, Yukon Party, also questioned the legality of the restrictions in an email last week.

Speaking to reporters Wednesday, Hanley didn't address the court challenge directly, but said it's a fundamental principle of public health to use the least restrictive measures possible to control disease. 

"In the beginning, we had a blunt instrument that we needed to act on quickly," he said. "We needed to make some big decisions in a short amount of time for a very important purpose and that was to protect ourselves, to protect Yukon, to protect a fragile health care system ... and to protect against something that was still new and not very well known."

Hanley said officials will have to keep balancing personal freedoms with public health concerns until a COVID-19 vaccine is available.

This week, Yukon Premier Sandy Silver maintained the restrictions are constitutional.

He said the restrictions are for a short term and conform to the principle of reasonable limits to Charter rights.

The Yukon border is expected to be opened to travellers from British Columbia on July 1 with no 14-day self-isolation required. But Silver said it's too early to predict when it might be safe to open the border to people from other jurisdictions.

The court document says the territorial government has seven days to respond to the lawsuit.

With files from Chris Windeyer

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