TLDR: The trucker protest was really just an anti-Trudeau protest and not about COVID restrictions
Time for a brief history of trucker protest, federal/provincial jurisdictions, and international borders.
Both Canada and the US exempted unvaccinated truckers when it came to crossing borders to help mitigate supply chain issues. Eventually, both Canada and the US decided that you need to be vaccinated to enter Canada or the US. The idea of a host country gets to control who enters their country is fundamental concept of international borders.
What this meant is that US truckers would need to be vaccinated to enter Canada and vice versa. As much as people think Trudeau is all powerful dictator, he doesn't have the power to dictate to the US about their COVID restrictions.
The truckers should have protested at the US embassy or at the border to pressure the US to allow unvaccinated Canadian truckers in.
The protest morphed into general COVID restrictions. Cool, this is something that Canadian protesters can try affect change. The Constitution Act, doesn't just lay out rights and freedoms. It lays out how governments are to operate (the legislative, executive, judicial), judges, the Courts, taxation, etc.
Section 92 lays out what is under Provincial jurisdiction.
- The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
- Generally all Matters of a merely local or private Nature in the Province.
The Supreme Court in Schneider v. The Queen, 1982 CanLII 26 (SCC), [1982] 2 SCR 112 dealt with the issue of public health and Provincial jurisdiction.
The Royal Commission on Dominion-Provincial Relations (the Rowell-Sirois Commission) in 1938 commented on this absence of a specific head of power dealing with the administration of public health at pp. 32-33: In 1867 the administration of public health was still in a very primitive stage, the assumption being that health was a private matter and state assistance to protect or improve the health of the citizen was highly exceptional and tolerable only in emergencies such as epidemics, or for purposes of ensuring elementary sanitation in urban communities. Such public health activities as the state did undertake were almost wholly a function of local and municipal governments. It is not strange, therefore, that the British North America Act does not expressly allocate jurisdiction in public health, except that marine hospitals and quarantine (presumably ship quarantine) were assigned to the Dominion, while the province was given jurisdiction over other hospitals, asylums, charities and eleemosynary institutions. But the province was assigned jurisdiction over "generally all matters of a merely local or private nature in the Province", and it is probable that this power was deemed to cover health matters, while the power over "municipal institutions" provided a convenient means for dealing with such matters.
Dominion rather than by the province". "Dominion jurisdiction over health matters is largely, if not wholly, ancillary to express jurisdiction over other subjects ... " Thus historically, at least, the general jurisdiction over public health was seen to lie with the provinces under s. 92(16) "Generally all matters of a merely local or private Nature in the Province" although the considerable dimensions of this jurisdiction were unlikely foreseen in 1867.
This view that the general jurisdiction over health matters is provincial (allowing for a limited federal jurisdiction either ancillary to the express heads of power in s. 91 or the emergency power under peace, order and good government) has prevailed and is now not seriously questioned (see Rinfret v. Pope (1886), 12 Q.L.R. 303 (Que. C.A.), Re Bowack, supra, Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 CanLII 190 (SCC), [1980] 1 S.C.R. 914, per Estey J.).
The medical treatment of drug addiction is a bona fide concern of the provincial legislature under its general jurisdiction with respect to public health. The constitutional question to be answered is whether the "dominant or most important characteristic" of the Heroin Treatment Act is the medical treatment of drug addiction.
Public health squarely falls into the jurisdiction of the Provinces. Great, we know who have to protest. That would be the Premiers, so let's all head down to the......Canada's capital to protest the Federal Government who doesn't have jurisdiction over public health matters outside very specific situations such as border controls and prisons.
Let's all be clear that the trucker protest really was just an anti-Trudeau protest.
