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What You Need to Know
Talk of travel restrictions, at both the federal and provincial
levels, is intensifying as COVID-19 infections continue to rise and
new variants generate increasing concerns for Canadians. Last week,
the federal government announced it would implement mandatory
testing and hotel quarantine for international travellers returning
to Canada.1 On the same day, Ontario’s
Premier announced the province would administer mandatory COVID-19
tests for international air travellers touching down in Ontario, at
least until the federal program is rolled out.2
In addition to these international travel restrictions, some
provinces are considering restricting interprovincial travel.
British Columbia’s Premier, John Horgan, recently announced
that he was reviewing the province’s powers to impose travel
restrictions, leading to speculation that a Maritime-style travel
ban might be in the works.3 However, apparently after receipt of
legal advice, Premier Horgan later pulled back, advising that while
the province has no plans to deny entry to visitors, it will
“impose stronger restrictions on non-essential
travellers” if such travel leads to increased COVID-19
transmission.4 He noted that much of the
interprovincial travel in the British Columbia appeared to be for
work purposes, and that work-related travel “cannot be
restricted”.5 Manitoba saw new restrictions
announced last week, with domestic travellers entering the province
now required to submit to a 14-day period of self-isolation.6
Questions abound as to the kinds of interprovincial restrictions
provinces might seek to impose and with respect to the
constitutional validity of such restrictions.
The 2020 decision in Taylor v Newfoundland and Labrador7
(“Taylor“) provides a useful
starting point as to what is possible and as to the constitutional
underpinnings of such restrictions. The Newfoundland and
Labrador Supreme Court held in Taylor held that in
appropriate circumstances the provinces can lawfully impose
restrictions on interprovincial travel, including a complete entry
ban for certain non-essential travellers from other provinces. This
decision provides useful guidance as to how such restrictions may
be construed by the courts and provides an instructive analytical
framework for reviewing the constitutionality of such laws.
Provinces intent on pursuing COVID-19 travel restrictions will no
doubt look to the Taylor decision for guidance.
Newfoundland and Labrador’s Non-Essential Travel
Restriction
One of the most significant interprovincial travel restrictions
imposed in Canada to date—and the only to have received
judicial consideration—was imposed by Newfoundland and
Labrador in May 2020 by orders of the Newfoundland and Labrador
Chief Medical Officer of Health (the “Chief Medical
Officer“). The orders were issued under s. 28(1)(h)
of the Public Health Protection and Promotion Act8 (the
“PHPPA“), which empowers the
Chief Medical Officer to impose provincial travel restrictions
while a public health emergency declaration is in effect.
On May 4, 2020 Special Measures Order (Amendment No. 11) (the
“Travel Restriction Order“) came into
effect, preventing all individuals from entering Newfoundland and
Labrador, except for (1) residents9, (2) asymptomatic workers and
individuals receiving an exemption who were subject to a 14-day
quarantine, and (3) individuals permitted by the Chief Medical
Officer to enter under extenuating circumstances.
On May 5, 2020 Special Measures Order (Travel Exemption
Order) (the “Exemption“) came into
effect, exempting certain persons from the Travel Restriction
Order, including individuals who were visiting to care for
relatives, persons permanently relocating to the province,
unemployed persons living with family, and persons fulfilling
short-term contracts or educational placements.10 Together, the
Travel Restriction Order and Exemption were designed to prevent
non-essential travellers from entering the province.
In Taylor, the Supreme Court of Newfoundland and
Labrador upheld s. 28 of the PHPPA as being within the
province’s legislative competence and dismissed a
constitutional challenge that the Travel Restriction Order violated
mobility and liberty rights under ss. 6 and 7 of the Canadian
Charter of Rights and Freedoms.11
The challenge in Taylor was brought by Ms. Kimberley
Taylor after she was fleetingly denied the opportunity to enter the
province to attend her mother’s funeral. Ms. Taylor was a
Canadian citizen who resided in Nova Scotia and who was prepared to
quarantine for 14 days upon arrival in Newfoundland. The exemption
was initially denied, however, it was granted 8 days later, when
Ms. Taylor submitted a reconsideration request. Ms. Taylor
challenged s. 28(1)(h) of the PHPPA as being outside the
province’s legislative competence. She also brought a
constitutional challenge in respect of the 8 day period for which
she was denied entry, arguing that the Travel Restriction Order
violated her rights ss. 6 and 7 of the Charter (rights to mobility
and liberty, respectively). The Canadian Civil Liberties
Association (“CCLA“) joined her
challenge as a public interest litigant (together, Ms. Taylor and
the CCLA are the “Applicants“). The
Applicants have announced their intention to appeal the decision.12
Provinces Competent to Implement Public Health-Focused Travel
Restrictions
The first challenge addressed by the Court was the
Applicants’ argument that s. 28(1)(h) of the
PHPPA fell outside the province’s legislative
competence and intruded into federal legislative jurisdiction. The
Applicants argued that the impugned legislation was an attempt by
the province to legislate in respect of interprovincial works and
undertakings13, naturalization and aliens14,
or the power to make emergency laws concerning the peace, order and
good government of Canada15, all of which fell within the
exclusive domain of the federal government. The Court, however,
found that the purpose of s. 28 of the PHPPA was in pith
and substance the protection and promotion of the health of those
in Newfoundland and Labrador. Accordingly, it fell validly within
the province’s power to legislate in respect of matters of a
local and private nature,16 or alternatively, its power to
regulate property and civil rights.17 In Justice
Burrage’s words, s. 28(1)(h) of the PHPPA was
“[a]t its core… a public health measure”18
and “health is ‘an amorphous topic, which can be addressed
by valid federal or provincial legislation, depending in the
circumstances of each case on the nature or scope of the health
problem in question'”.19 The Court also held that the
federal government had not attempted to regulate interprovincial
travel and had left the provinces to “devise their own
solutions, in response to local conditions and on the advice of
their respective health experts”.20
Interprovincial Mobility and the Charter
Section 6(1): The Right to “Remain” in Canada
Includes a Right to Interprovincial Travel
Section 6(1) of the Charter guarantees Canadian
citizens the right to “enter, remain in and leave
Canada”.21 Section 6(2)(a) and (b), which
extend to both citizens and permanent residents, guarantee the
rights to “move and take up residence in any province”
and to “pursue the gaining of a livelihood in any
province”. Since Ms. Taylor was neither seeking to travel for
relocation nor seeking to earn a livelihood in the province, s.
6(2) was not implicated and the Court’s decision hinged on s.
6(1). The Court rejected the Applicants’ argument that
s(6)(2)(a) encompassed two distinct rights, the first being
“the right ‘to move to’ any province, which the
Applicants would interpret as synonymous with ‘to travel
to’ any province, and the second being the right to ‘take
up residence’ in any province”.22 Justice Burrage
found instead that a right to travel across provincial and
territorial boundaries logically follows from the right to
“remain in” Canada, using a simple analogy: “In
common parlance, we would regard the right to come and go from
one’s home, and to remain in it, as surely including the right
to wander freely from room to room”.23 The Court
accepted that Ms. Taylor’s s. 6(1) right to remain in Canada
was infringed by her fleeting denial of entry into Newfoundland,
but found s. 6(2) was not engaged on the facts.
Section 7: The Right to Make Fundamental Personal Choices Not
Engaged
Section 7 of the Charter, which extends to
“everyone”, guarantees the “right to life, liberty
and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental
justice”. Section 7 liberty rights extend to protect “the
right to make fundamental personal choices free from state
interference”.24 The Court found that s. 7 was not
engaged in the circumstances because mobility rights are expressly
provided for by s. 6 of the Charter and to adjudicate the
same rights under both ss. 6 and 7 risked introducing incoherence
by creating “parallel rights with different tests and
standards”.25 It noted in the alternative that
Ms. Taylor’s liberty rights were not infringed, as her reason
for visiting—to attend a funeral—did not engage the
type of fundamental personal choice protected by s. 7
(e.g., choices related to physician-assisted suicide,
abortion, and medical care). The choice to attend a funeral was
qualitatively different from any such choices. However, Justice
Burrage left open the possibility that other choices related to
interprovincial mobility—such as the right to live or work
where one chooses—could amount to a fundamental personal
choice under s. 7.
Section 1: Interprovincial Travel Restrictions are Justified
Infringements of Mobility Rights
Section 1 of the Charter guarantees that the rights and
freedoms set out in the Charter will only be subject to
“such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society”. An
infringement will be justified where the party seeking to uphold
the infringement (i.e., the state actor) demonstrates that
(1) the objective of the impugned legislation is of sufficient
importance to warrant limiting the right or freedom in question and
(2) the means chosen to limit the right or freedom are reasonable
and demonstrably justified. The latter assessment requires the
state actor to demonstrate that the means in question are
rationally connected to the objective, that they impair the right
or freedom as minimally as possible, and that the effects of the
chosen measure are proportionate to the objective in question. The
rights contained in s. 6 of the Charter are not subject to
the s. 33 “notwithstanding clause” that permits the
government to declare a law to operate notwithstanding s. 2 or ss.
7-15 of the Charter – thus, governments may only
infringe s. 6 where its actions are justified in accordance with s.
1, and do not have an option to proceed “notwithstanding”
citizens’ s. 6 rights where the infringement cannot be
justified.
The Applicants argued that since other public health measures
had already effectively minimized COVID-19 transmission in the
province, the Travel Restriction Order did not serve a valid public
health objective, and rather, merely aimed to exclude non-residents
from the province. The Court rejected this argument, finding that
the Travel Restriction Order had the pressing and substantial
objective of protecting those in Newfoundland and Labrador from
COVID-19 importation by travellers. It went on to find, based on
medical evidence, that the Travel Restriction Order was rationally
connected to its objective and minimally-impairing, noting that
significant deference was necessary as “the courts do not have
the specialized expertise to second guess the decisions of public
health officials”.26 Justice Burrage observed that in
public health contexts where serious illness or death could result,
the margin for error was small and public health guidance requires
erring on the side of caution. Thus while other measures—such
as requiring individuals to self-isolate, mandating social
distancing, and providing enhanced COVID-19 testing—might
also assist in combatting the spread of COVID-19, none of these
measures, alone or in combination, were an effective substitute for
the travel restriction. The deleterious effects of the Travel
Restrictions Order were proportionate to the mental anguish it
caused for Ms. Taylor, as “the collective benefit to the
population as a whole must prevail” and the “right to
mobility must give way to the common good”.27 The Travel
Restriction Order’s infringement of Ms. Taylor’s s. 6(1)
mobility rights was thus justified in accordance with s. 1.
What Could Taylor Mean for Future Interprovincial
Travel Restrictions?
What is clear from Taylor is that the provinces can
validly enact health-based travel restrictions to prevent Canadians
from entering for non-essential purposes (particularly for travel
or vacation purposes), and that such restrictions are likely to be
justified under s. 1, especially in view of courts’ general
unwillingness to second-guess public health decisions.
Although the Taylor decision does not bind the courts of
other provinces, its reasoning—including the deference it
accords to government decision-makers and its focus on promoting
the common good—will be persuasive, absent compelling factual
differences or a successful appeal. Much like Newfoundland and
Labrador’s aging population and rural medical system, many
communities across Canada are at a high risk for COVID-19,
including remote Indigenous communities with limited access to
healthcare and medical resources,28 and rural areas whose medical
systems have limited capacity. As Justice Burrage remarked in
Taylor, “the margin for error is small” and
“the public health response is to err on the side of caution
until further confirmatory evidence becomes available”.29
Although the restrictions in Taylor only implicated s.
6(1) of the Charter, it is possible that future travel
restrictions or bans could implicate ss. 6(2) and 7 as well, and it
remains to be seen whether such infringements could be justified
under s. 1 of the Charter. While a decision to attend a
funeral was found in Taylor to not engage the type of
“fundamental personal choice” protected by s. 7 liberty
rights, it is possible that a decision to pursue residence or
livelihood in another province might rise to this level, in
addition to engaging s. 6(2) protections. Likewise, myriad personal
circumstances may push up against the “fundamental personal
choices” jurisprudence to engage the s. 7 right to liberty, or
the rights to life or security of the person protected by s. 7.
Although s. 7 of the Charter is subject to legislative
override by s. 33, this section confers a broader right that
extends to “everyone” rather than just citizens (s. 6(1))
or citizens and permanent residents (s. 6(2)). Section 7 is
“not easily overridden by societal interests”30
– thus, governments bear a heavy onus of justification in
circumstances where it is engaged.
Whether any particular infringement of ss. 6 or 7 will be
justified according to s. 1 is a fact-driven inquiry requiring
balancing of the particular rights infringement(s) against the
objective of the law or state action. Where government-imposed
travel restrictions or bans are in breach of several
Charter rights, or cause serious infringements of ss. 6 or
7, this may assist in tipping the scales towards the applicant and
invalidating the law or state action. However, the reasoning in
Taylor that the “collective benefit to the population
as a whole must prevail”31 and that the
“Charter right to mobility must give way to the
common good”32 may pave the way for even serious
Charter infringements to be justified in view of
provincial governments’ attempts to manage a potentially fatal
disease. Additionally, if provinces do not ban travel and merely
place restrictions on entry (such as quarantine or testing
requirements), such restrictions are likely to either not infringe
ss. 6 and 7 in the first place, or to be justified under s. 1,
given their limited nature.
Footnotes
1 Raisa
Patel, “Travellers should prepare for post-flight testing,
hotel quarantine as soon as Thursday: Alghbra” CBC
News (31 Jan 2021), online:
https://www.cbc.ca/news/politics/new-pandemic-travel-measures-soon-1.5895349.
2 Mira
Miller, “Here are all the new travel restrictions coming into
effect for Ontario”, blogTO (1 Feb 2021), online:
https://www.blogto.com/city/2021/02/new-travel-restrictions-ontario/.
3 Justine
Hunter, “British Columbia looks to create its own pandemic
bubble”, The Globe and Mail (14 Jan 2021), online:
https://www.theglobeandmail.com/canada/british-columbia/article-british-columbia-looks-to-create-its-own-pandemic-bubble/.
4 British
Columbia, “Premier’s statement on restricting
interprovincial travel” (21 Jan 2021), online: https://news.gov.bc.ca/23636.
5
Ibid.
6 Kayla
Rosen, “New interprovincial travel restrictions now in effect
in Manitoba”, CTV News (29 Jan 2021), online:
https://winnipeg.ctvnews.ca/new-interprovincial-travel-restrictions-now-in-effect-in-manitoba-1.5287530.
8 S.N.L.
2018 c. P-37.3.
9
Residents were defined as persons lawfully entitled to be in Canada
who make their home in the province and who are ordinarily present
in the province, excluding tourists, transients, and visitors
– see Taylor at para 37.
10
Taylor at para 38.
11
Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11 (the
“Charter“).
12
Taylor et al. v HMQ, 2020 01H No. 0067, Notice of Appeal
(filed 20 October 2020).
13
Constitution Act, 1867, 30 & 31 Victoria, c. 3 (UK)
(the “Constitution“) at s.
92(10).
14
Constitution at s. 91(25).
15
Constitution at s. 91.
16
Constitution at s. 92(16).
17
Constitution at s. 92(13).
18
Taylor at para 241.
19
Taylor at para 265, citing to Schneider v British
Columbia, 1982] 2 SCR
112 at para 75.
20
Taylor at para 295.
21
Charter at s. 6(1).
22
Taylor at para 368.
23
Taylor at para 353.
24
Taylor at para 385, citing to Blencoe v. British
Columbia (Human Rights Commission), 2000 SCC 44 at para
54.
25
Taylor at para 378.
26
Taylor at para 458.
27
Taylor at para 492.
28
Amanda Follett Hosgood, “Northern BC, Indigenous Communities
in Race to Be Ready for COVID-19”, The Tyee (16 Mar
2020), online:
https://thetyee.ca/News/2020/03/16/Northern-BC-Indigenous-Communities-Prepare-For-COVID-19/;
Angela Sterritt, “COVID-19 cases among First Nations in some
B.C. regions double rest of population”, CBC News (17
Dec 2020), online:
https://www.cbc.ca/news/canada/british-columbia/covid-19-cases-in-some-first-nations-double-non-first-nations-1.5845679.
29
Taylor at para 467.
30
Ibid, citing to Carter v Canada (Attorney
General), 2015 SCC 5 at para 95.
31
Taylor at para 492.
32
Taylor at para 492.
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