by Jack Ball
The views expressed in this post are my own.
One day, in July, I went to the grocery store and the fresh produce was almost entirely picked over. In the dry foods aisle, the only pasta shape left was macaroni. It reminded me of March 2020 and when I checked the local news, I found out that the empty shelves were indeed caused by supply chain issues but in this case the reason was flooding, not Covid-19. Whitehorse (and, by extension, Yukon as a whole) is supplied by one main trucking route, a two-lane highway that winds its way up to the territory from British Columbia. A section of that road had been washed away, spurring people to rush to the grocery stores.
That same week, Yukon was experiencing the peak of its wildfire season, with fifty or so wildfires burning in the territory. The sky was hazy, and you could smell the smoke when the wind picked up in the evenings. One of my coworkers at the Commission pointed out that because of Yukon’s geography and climate, its mountain ranges and sharp seasonal shifts, there can be avalanche and wildfire risks simultaneously in the summer. Climate change’s growing impact on the region will probably only exacerbate Yukon’s dramatic seasons.
While the washed-out road was being repaired, the internet was suddenly knocked out across the whole territory. The repair crew had broken a key fiber-optic cable. Yukon, like many regions in Canada, is supplied by a single internet provider. In their efforts to restore the physical supply chain, the repair crew had knocked out its digital counterpart. Debit and credit machines stopped working. I went to the bank to take enough money out to buy lunch and as I was walking in to try the ATM, a bank employee intercepted me, asking how much money I was planning to withdraw. He allowed me to carry on once I had assured him that I was only taking out $20. That day at work, there was an unexpected fire drill, just to add to the commotion.
Ask locals about this week and they’ll probably remember it but not as all that exceptional. Apparently, there was a similar week of drama the summer before. And the internet goes down regularly, my coworkers told me. It’s all characteristic of living on the settler-colonial frontier, where the margin is still being actively connected to the centre. When the Rogers Outage impacted large swathes of Canada just a few days later, Yukon was unphased.
The legal system I was working within also felt like a frontier. Because Yukon is such a small jurisdiction, its judges hear relatively few cases. The Yukon Supreme Court and Territorial Court have three full-time judges each, and the Court of Appeal for the territory only releases a handful of decisions per year, many of which are criminal appeals. As a result, the territory’s own laws are not interpreted and judicially scrutinized as often as they might be in more heavily populated jurisdictions. Yukon’s population is only around 40 thousand people — just a couple thousand more than McGill’s total student body. In my research memos, I often turned to caselaw from other Canadian jurisdictions, especially BC, since that province’s precedents are generally considered the most persuasive in the territory.
Naturally, concepts in Yukon’s Human Rights Act (the “Act”) are explained by case law that did not originate in Yukon itself, such as Supreme Court of Canada jurisprudence like Moore v British Columbia, which lays out the three-step test for establishing discrimination (“ground-area-nexus”) that helps interpret sections 7 and 9 of the Act. Other concepts, however, are vaguer and have not been clarified in case law. One of my memos looked at section 11(2) of the Act, which establishes an exemption that permits individuals to give preference to members of their family but, unlike parallel provisions in other human rights legislation in Canada, does not specify whether this protects nepotism in any potential area of discrimination (public services, employment, union membership, housing, or public contracts) or only in certain types of situations, like renting an apartment to a family member. This raised the question of whether section 11(2) protects, for example, public servants who want to hire family members for government jobs.
Human rights legislation across jurisdictions in Canada is relatively similar when it comes to major concepts like the test for discrimination and the protected areas, but the differences are amplified in a place like Yukon. The answer to a legal question may not be as readily available.