Our mobility rights beneath Part 6 of the Constitution are receiving uncommon consideration. That’s as a result of imposing journey bans is less complicated stated than achieved.
Photograph by L.Filipe Sousa on Unsplash
With March break approaching, Canadian politicians are urging vacationers to cancel their plans and never undermine efforts to restrict the unfold of COVID-19.
Many Canadians, accustomed to heading to hotter climates as a coping mechanism to outlive the final leg of winter, will grudgingly oblige. Others will do as they please, except the federal government takes a firmer hand. Which is why Quebec Premier François Legault has repeatedly known as on Ottawa to ban all non-essential worldwide journey or, on the very least, power anybody returning to Canada from trip to quarantine for 2 weeks at their very own expense. The Prime Minister is now warning of recent measures that would “considerably impede” the flexibility of Canadians to return dwelling “with out warning.” Earlier this month, his authorities enacted testing necessities for air travellers coming into the nation to forestall the unfold of the virus and variants of COVID-19 within the nation.
The query is, how far can the federal government go in imposing journey restrictions that successfully stop Canadian residents from leaving and coming into the nation – measures that on their face violate Part 6(1) of the Canadian Constitution of Rights and Freedoms?
“Part 6 is fairly clear, in black and white,” says Kerri Froc, a regulation professor on the College of New Brunswick. “It offers an unqualified proper to enter, stay in, or depart Canada. So, whether or not it is a ban on worldwide journey that will not let individuals depart, or whether or not it is qualifying the appropriate to enter Canada as a result of it’s a must to clear a [COVID] take a look at, it is the identical concern as a result of it is an absolute proper.”
Complicating issues additional, says Froc, mobility rights beneath Part 6 have been thought of to be of such elementary significance that the Constitution’s drafters determined that governments couldn’t override them by invoking Part 33, the however clause.
The federal government might attempt to justify journey restrictions by arguing that they’re cheap and demonstrably justified in a free and democratic society beneath Part 1. It must persuade a court docket that there’s a rational connection to a urgent and substantial concern – containing a pandemic – that might justify the constraints to Part 6; and that the federal government’s actions are proportionate in addressing that concern.
That is the place the however clause re-enters the image. Courts have dominated up to now that Constitution rights not contemplated beneath Part 33 have a particular standing. “Whereas deference could also be acceptable on a choice involving competing social and political insurance policies, it’s not acceptable on a choice to restrict elementary rights,” the Supreme Court docket of Canada rule in Sauvé v. Canada, a landmark determination holding that prisoners have a proper to vote beneath Part three of the Constitution.” The governments of the day did not dare put them in Part 33, in order that they have a particular standing with regards to Part 1.”
Following that logic, the federal government would seemingly have to fulfill a better bar to justify a violation of mobility rights, as it will for voting rights beneath Part three.
A court docket can even take into account completely different contextual components for an all-out ban than it will for an interim order on testing necessities for all air travellers coming into Canada. “The Part 1 argument is clearly going to be a little bit bit completely different,” says Froc. “Governments have a extremely robust time displaying that absolute bans are minimally impairing. The courts normally wish to see higher ‘tailoring’ of the infringement and that authorities has been considerate about it… However by the identical token, you are consigning some Canadians to exile overseas, and in order that raises fairly elementary points as nicely.”
It is value noting that, final summer season, the Supreme Court docket of Newfoundland and Labrador upheld a provincial journey ban. It discovered it to be in violation of Part 6(2) of the Constitution, which ensures interprovincial journey to Canadians and everlasting residents, however lawful beneath Part 1. The Canadian Civil Liberties Affiliation, which challenged the ban, is interesting the choice.
Rosellen Sullivan, who represented the CCLA at trial, says that within the context of a global ban, the federal government must reveal, “primarily based on the science that journey will increase the chance” of contagion and steadiness that in opposition to a minimal impairment of rights.
“Once you put numerous measures in place, they could work together,” says Sullivan. “And that is what public well being is: the precautionary technique […] However I actually consider that the rational connection and the least intrusive measures have to be primarily based in science […] And once you do the balancing train, the federal government has to take a look at the financial affect. The federal government has to take a look at the social affect — these issues that do not sometimes get factored in or mentioned once we’re speaking about public well being. Or that do not get the eye they deserve.”
Restrictions on journey could seem to be a draconian measure to many Canadians. However that is to not say the courts gained’t lend the federal government a sympathetic ear, says Froc. “Part 1 can be a coverage name. And that is why a lot deference is given to authorities. What court docket desires is to have it on its shoulders that it strikes this down after which we’re right into a pandemic the place there’s double the variety of individuals dying day by day? My intestine sense is that a court docket may err on the aspect of warning. However on the identical time, they are going to be involved about what precedent this units.”
Yves Faguy is the Editor-in-chief of CBA Nationwide Journal.