The majority said the ban’s public health benefits ‘outweighed the temporary limits on free movement’
A travel ban issued by Newfoundland and Labrador during the early days of the COVID-19 pandemic violated ss. 6(1) and 6(2) of the Canadian Charter of Rights and Freedoms, which guarantee citizens’ rights to enter and move within Canada, but the provincial government has shown that the ban was justified under the Charter’s “reasonable limits” provision, the Supreme Court of Canada ruled in a split decision on Friday.
Justices Andromache Katrakatsanis and Sheilah Martin wrote the opinion for the majority. Justices Nicholas Kasirer and Mahmud Jamal dissented in part, while Justice Malcolm Rowe dissented for different reasons.
“Travel restrictions were a reasonable component of a comprehensive government response to the extraordinary crisis of the pandemic – especially its early stages,” Karakatsanis and Martin wrote. “The record shows that Newfoundland and Labrador had a population that was uniquely vulnerable to COVID-19, and a low capacity to provide medical treatment in case of widespread illness.”
The justices added, “In these circumstances, the benefits of saving lives and protecting health outweighed the temporary limits on free movement.”
Speaking about the decision on Friday, Anaïs Bussières McNicoll of the Canadian Civil Liberties Association, which had filed the challenge against the travel ban, says the organization was disappointed in the high court’s finding that the pandemic justified the travel restrictions.
However, she says, “what’s truly important from this decision is that this is the highest court of the land’s first in-depth examination of how the uncertainty arising from the pandemic may affect courts’ evaluations of the constitutionality of government actions.”
Bussières McNicoll adds, “today's decision clarifies the legal parameters that are applicable so officials can govern effectively and in accordance with the Charter during future crises.”
The case involves Kimberley Taylor, a Nova Scotia resident who tried to enter Newfoundland and Labrador when her mother died the day after the province implemented its travel ban. When the province declined to give her permission to enter, she requested an exemption to the travel ban. She was granted permission to visit her family after 10 days.
Taylor sued the province with the Canadian Civil Liberties Association, seeking a declaration that Newfoundland and Labrador had violated s. 6 of the Charter. The court determined that the travel ban violated her s. 6 rights, but held that the violation was justified under s. 1 of the Charter, which allows limitations on Charter rights if those limits can be reasonably justified.
Both sides appealed, but the travel ban was lifted before the appeal was heard. The Court of Appeal said the appeal was moot and declined to decide the Charter issues.
Taylor then appealed to the SCC, arguing that the issue was not moot. She argued that while the COVID-19 pandemic was over, future pandemics would occur and the s. 6 issues would likely arise again.
According to Karakatsanis and Martin, Taylor v. Newfoundland and Labrador is the first case to ask the high court to simultaneously consider the scope of ss. 6(1) and 6(2).
While s. 6(1) stipulates that every Canadian citizen has the right to enter, remain in, and leave Canada, s. 6(2) states that every citizen and permanent resident has the right to move to and live in any province, and pursue a livelihood in any province.
The justices concluded that both subsections of the Charter guarantee a “broad right of movement.” History, international law, other Charter provisions, and legislative debates all suggest that s. 6(1) includes a right to free movement within the country. Meanwhile, the right to free movement is a condition of s. 6(2), since “an entitlement to go where you please to work or take up residence makes little sense unless you can, in general, go where you please,” the justices wrote.
The majority’s analysis considered both French and English versions of the Charter. While Newfoundland and Labrador argued that parts of the English text could be interpreted to mean that s. 6(2) only guarantees an individual’s right to move to a different province if they were to live there, the majority found that the clause “protects distinct but related rights of travel and establishment.”
Interpreting the section more narrowly would “not offer the most generous available protection of s. 6(2)’s purposes,” Karakatsanis and Martin added. The justices had written earlier in the decision that where there is ambiguity, “a purposive approach to bilingual Charter interpretation requires courts to select the reading that better protects the right – which will generally be the broader of the two.”
Based on this reading of s. 6, the majority concluded that Newfoundland and Labrador’s travel ban violated both ss. 6(1) and 6(2), since it “imposed a real limit on Canadians’ freedom to move throughout Canada.”
However, Karakatsanis and Martin found that the breaches were still constitutional, since they were saved by s. 1 of the Charter.
“In the early days of the pandemic, governments across Canada – including Newfoundland and Labrador – were confronted by a new and deadly disease. Growing numbers of cases and deaths paired with a lack of concrete medical and scientific evidence created an extraordinarily difficult situation where decisions had to be made swiftly to attempt to protect health and reduce further loss of life,” the justices wrote.
“The travel restrictions amounted to a limitation of freedoms, and governments must exercise significant caution when engaging in such restrictions,” the justices added. “However, Newfoundland and Labrador’s travel restrictions were a reasonable and justified measure in a free and democratic country in the COVID-19 pandemic.”
The dissents
In their dissent, Kasirer and Jamal wrote that while they agreed that Newfoundland and Labrador’s travel ban breached Taylor’s s. 6(2)(a) rights, it did not breach her s. 6(1) rights or s. 6(2)(b) rights. S. 6(2)(a) guarantees the right to move to and take up residence in another province, while s. 6(2)(b) guarantees the right to pursue a living in any province.
Like the majority, however, they concluded that the infringement of Taylor’s rights was justified under s. 1 of the Charter.
Kasirer and Jamal said their conclusion is based on a “settled understanding” that s. 6(1) protects international movement for Canadian citizens, while s. 6(2) protects interprovincial movement within Canada for both citizens and permanent residents.
When Taylor was denied permission to enter Newfoundland and Labrador under the travel ban, her right to move freely from one province to another under s. 6(2)(a) was violated. However, Taylor’s right to international travel under s. 6(1) and her right to earn a living in another province under s. 6(2)(b) were not, the justices found.
In his dissent, Rowe wrote that while he believed Taylor’s s. 6(1) rights were violated, her s. 6(2)(a) rights were not.
“Section 6(1) provides for the right to ‘remain in’ Canada, which connotes a right to remain within the borders of Canada,” Rowe wrote. “Contrarily, the text of s. 6(2)(a) provides for a right of interprovincial mobility only for the purpose of establishing residence.”
Like his colleagues, Rowe said he believed the s. 6(1) infringement was justified by under s. 1 of the Charter.
John Drover, a partner at Roebothan, McKay & Marshall who represented Taylor in the case, told Canadian Lawyer he believes the decision speaks for itself.
“We are thankful to the SCC for hearing the case, to our co-counsel representing the CCLA, for the respectful participation of NL government counsel, and to all the intervenors,” he said.
The Newfoundland and Labrador Department of Justice did not immediately respond to a request for comment.
