Executive Summary: Key Legal and Evidentiary Issues

• Newfoundland and Labrador’s COVID-19 travel restrictions preventing most non-residents from entering the province limited mobility rights guaranteed by s. 6(1) and s. 6(2) of the Charter.
• The Supreme Court held that s. 6 guarantees a broad right to move freely within Canada, including across provincial borders, to both citizens and permanent residents.
• Even though the case was moot when it reached the Court of Appeal, the Supreme Court decided the appeal on its merits because of the importance of the issues.
• The Court found that the travel restrictions infringed s. 6(1) and s. 6(2), but that the infringement was demonstrably justified under s. 1 of the Charter using the Oakes test in the context of a grave emergency.
• The reasons emphasize that Charter interpretation is purposive and future-oriented, and that English and French versions of Charter rights are equally authoritative and must be read together, with persistent divergences resolved in favour of better protecting the right.
• The judges disagreed on whether interprovincial mobility falls under s. 6(1), s. 6(2), or both, but agreed that Taylor’s interprovincial mobility right was infringed and that the limit was justified under s. 1.

Background and facts of the case

During the early days of the COVID-19 pandemic, Newfoundland and Labrador declared a public health emergency. Under provincial public health legislation, the Chief Medical Officer of Health (CMOH) issued general orders authorizing various measures to protect health and to prevent, remedy, or mitigate the effects of the emergency.

One order prohibited entry into Newfoundland and Labrador for everyone except residents of the province, asymptomatic essential workers, and persons in certain towns on the Labrador-Quebec border. A subsequent order allowed exemptions for individuals in extenuating circumstances, if approved in advance by the CMOH. Together, these orders are described as the “travel restrictions.”

In May 2020, Kimberley Taylor, a non-resident of Newfoundland and Labrador, requested an exemption so she could enter the province after her mother unexpectedly passed away, to be with her family and attend the burial. Her initial request was denied on May 8, but a reconsideration request was approved on May 16 and she was eventually permitted to enter.

Despite having been granted entry, Taylor, joined by the Canadian Civil Liberties Association (CCLA), sought a declaration that the travel restrictions infringed her mobility rights as guaranteed by s. 6 of the Charter.

Procedural history and lower court decisions

The application judge held that s. 6(1) of the Charter guarantees Canadian citizens a right to travel across provincial borders, but that s. 6(2) does not. He therefore found that the travel restrictions infringed Taylor’s right to mobility under s. 6(1), but that the infringement was justified under s. 1 of the Charter.

Taylor and the CCLA appealed, arguing that the application judge correctly interpreted s. 6(1) but erred in his interpretation of s. 6(2). Before the appeal could be heard, the travel restrictions were repealed. The Court of Appeal of Newfoundland and Labrador dismissed the appeal as moot, without addressing the merits of the claims under ss. 6 and 1.

On further appeal, the Supreme Court of Canada held, by majority, that the appeal should be allowed in part, that the Court of Appeal’s order dismissing the appeal as moot should be set aside, and that the application judge’s order should be modified to reflect that the travel restrictions limited mobility rights under both s. 6(1) and s. 6(2) of the Charter.

Policy and Charter framework on mobility rights

The Supreme Court majority (Karakatsanis and Martin JJ., with Côté, O’Bonsawin and Moreau JJ. concurring) explains that Charter interpretation is different from statutory interpretation. The Charter is drafted with an eye to the future and is meant to provide a continuing framework for the exercise of governmental power and the protection of individual rights and liberties. It is a purposive document, and a court must first identify the nature of the interests a right is meant to protect, considering the character and larger objects of the Charter, the text and headings of the provision, the history of the concept, international and comparative law, related Charter rights, drafting history, and other relevant sources. The text is then interpreted to provide the most generous protection it can support.

The Court states that the usual methodology for bilingual statutory interpretation is unsuitable in the Charter context. Instead, Charter interpretation must begin with a broad, liberal, and purposive reading of the text, and each Charter right must be placed in its linguistic, philosophic, and historical contexts. The French and English versions of Charter rights are equally authoritative. When there is an apparent difference, both versions inform the purpose; if divergence persists, courts are to select the reading that better protects the right, generally the broader one.

Applying this methodology, the majority concludes that s. 6 of the Charter “includes a broad right to free movement” guaranteed by both s. 6(1) and s. 6(2). The text of s. 6, which refers to rights against exile and banishment and rights to move for travel, residence, or work, indicates a broad underlying interest in free mobility and establishment across provincial and national borders.

The reasons trace mobility rights in the Anglo-Canadian legal tradition, noting that such rights have existed for centuries and were seen as ancient customs even in the 1200s. The Court also notes that mobility rights have strong protection in international human rights law and in the constitutional traditions of other democratic common law countries, where the freedom to choose where one wants to be, without state approval, is treated as essential and worthy of constitutional protection.

The majority explains that s. 6 is designed to protect a broad interest in human mobility, to facilitate individual autonomy and dignity, and to promote national unity and a common Canadian identity. Freedom of movement without constraint or coercion is described as “quintessential to the Canadian concept of a constitutional democracy” and as foundational to Canada’s free and democratic federal structure. The Charter’s protections are aimed at limits on movement that strike at these purposes, such as curfew laws, requirements to carry identity papers in public, or outright blockades on movement, rather than at trivial or fleeting limits.

The Court states that free movement is protected in both s. 6(1) and s. 6(2), with each subsection addressing additional related entitlements: s. 6(1) also deals with rights against exile and banishment, and s. 6(2) with the entitlement to establish residency and pursue a livelihood and with provincial regulation of these matters.

Section 6(1) is said to guarantee citizens a right to move throughout Canada without restriction. The words “enter, remain in and leave Canada” are interpreted so that “Canada” includes the land over which Canadian sovereignty extends, and the right to “enter” and “leave” implies movement within Canada, including crossing provincial borders.

For s. 6(2), the Court adopts a bilingual interpretation. The French text of s. 6(2)(a) — “de se déplacer dans tout le pays et d’établir leur résidence dans toute province” — is read as conferring two distinct rights: a right to travel throughout the country and a right to establish residence in any province. Nothing in the French text suggests that the second right qualifies or limits the first, and the English text can support this dual-rights approach.

The Oakes test, the precautionary principle, and justification

Where a Charter right is infringed, the government may seek to justify the limit under s. 1, and the Oakes test supplies the framework. The test asks whether there is a pressing and substantial objective and, if so, whether the means are reasonable, assessed through rational connection, minimal impairment, and proportionality between salutary and deleterious effects.

The majority notes that while it is not an error of law to refer to the “precautionary principle” in a s. 1 analysis, there is no need to embed it into the analysis. The precautionary principle is described as originating in environmental policy, encouraging preventive action despite scientific uncertainty, but not providing a clear legal framework; incorporating it into Oakes could cause confusion. The Court observes that concerns underlying the principle are already reflected in s. 1 because Oakes is applied flexibly and contextually, governments are given deference on complex policy issues, and courts acknowledge a “margin of appreciation” at each stage of the test.

Finding of infringement of mobility rights

In applying these frameworks, the Court concludes that the travel restrictions prevented Taylor from entering Newfoundland and Labrador for several days, until she received state authorization. The restrictions are described as “not fleeting or trivial” and as imposing “a real limit on Canadians’ freedom to move throughout Canada.” The Court therefore holds that the travel restrictions infringed s. 6(1) and s. 6(2) of the Charter.

The majority links this conclusion to its general statement that any law that limits, in a non-fleeting or non-trivial way, the ability of citizens or permanent residents to move within Canada, or that makes movement contingent on state authorization, will infringe s. 6.

Overall outcome and characterization of the ruling

Although the Court finds that Taylor’s mobility rights under s. 6(1) and (2) were infringed, it concludes that the travel restrictions were “demonstrably justified under s. 1.” The majority notes that, in the early days of the pandemic, there were growing numbers of cases and deaths and a lack of concrete medical and scientific evidence, which created a situation in which decisions had to be made swiftly to protect health and reduce further loss of life. The Court states that Newfoundland and Labrador’s travel restrictions were “a reasonable and justified measure in a free and democratic country in the COVID-19 pandemic.”

In separate reasons, Wagner C.J. and Kasirer and Jamal JJ. agree that the appeal is moot but should nonetheless be heard; they agree that Taylor’s right to interprovincial mobility was infringed and that the infringement was justified under s. 1. They differ from the majority by concluding that it was Taylor’s right under s. 6(2)(a), not s. 6(1), that was infringed, and they interpret s. 6(1) as protecting international mobility and protection against removal from Canada.

Rowe J. also agrees that the Court of Appeal erred in refusing to hear the appeal on mootness grounds, and agrees that Newfoundland and Labrador’s travel restrictions infringed s. 6 of the Charter and that the limitation was justified under s. 1. He differs from the majority by concluding that interprovincial travel simpliciter is protected by s. 6(1) but not by s. 6(2)(a).

The text provided does not specify any monetary award, damages, or specific amount ordered in favour of any party, and the Supreme Court’s summary indicates that the principal relief consists of allowing the appeal in part, setting aside the Court of Appeal’s mootness ruling, and modifying the application judge’s order to recognize that the travel restrictions limited mobility rights under s. 6(1) and (2) of the Charter.