Seite - 129 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

129Municipal Power and Democratic Legitimacy in the Time of COVID-19 Municipal councils have a perplexing role within Canada’s fed-eral system, stemming from the constitution.1 On the one hand, under s. 92 of the Constitution Act, “In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated,” which includes “Municipal Institutions in the Province.”2 Provincial governments and some courts have interpreted this section to mean that provinces alone set the rules regarding what municipalities can and cannot do. On the other hand, much jurisprudence from the Supreme Court of Canada (SCC) has referenced municipalities as “governments,” giv- ing deference to municipal decision makers on the grounds that local governments are closest to the people and thus aware of the on-the- ground realities that residents face. This chapter focuses on the conflicting legal position vis-à-vis municipal authorities and puts it in the context of the role municipalities have played in addressing COVID-19. First, I situate municipal author- ity within Canadian federalism based on jurisprudence and legislation. Next, I discuss how selected Canadian cities have responded to the crisis, focusing on the closure of public space, fines for violating physical dis- tancing by-laws, and increased policing. I conclude that despite lacking proper authority and proper stable funding, municipalities are playing a governmental role in response to the pandemic within a complex inter- governmental landscape that includes federal and provincial govern- ments, First Nations, and public bodies like health authorities. Moving forward, cities must be granted clear authority within provincial legisla- tion, including powers to declare emergencies and secure revenue, in part to ensure that the needs of the most vulnerable are considered. Municipal Authority in Canada The Constitution  Act,  1867 provides that municipal institutions in a province are within that province’s exclusive jurisdiction, which legally speaking makes them administrative bodies subject to judicial review.3 Provinces set out municipal authority in legislation, often a 1. Ron Levi & Mariana Valverde, “Freedom of the City: Canadian Cities and the Quest for Governmental Status” (2006) 44 Osgoode Hall LJ 409. 2. Constitution  Act,  1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, s 92(8). 3. See, e.g. R  v  Greenbaum, [1993] 1 SCR 674 at 688-689, 100 DLR (4th) 183; Shell Canada  Products  Ltd  v  Vancouver  (City), 1994 1 SCR 231, 110 DLR (4th) 1; Nanaimo