Our mobility rights underneath Part 6 of the Constitution are receiving uncommon consideration. That’s as a result of imposing journey bans is simpler mentioned than performed.
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, until the federal government takes a firmer hand. Which is why Quebec Premier François Legault has repeatedly referred to as on Ottawa to ban all non-essential worldwide journey or, on the very least, drive 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 might “considerably impede” the flexibility of Canadians to return residence “with out warning.” Earlier this month, his authorities enacted testing necessities for air travellers coming into the nation to stop 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 forestall 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 provides 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 folks depart, or whether or not it is qualifying the fitting to enter Canada as a result of you must clear a [COVID] take a look at, it is the identical situation as a result of it is an absolute proper.”
Complicating issues additional, says Froc, mobility rights underneath Part 6 had been thought-about 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 may attempt to justify journey restrictions by arguing that they’re affordable and demonstrably justified in a free and democratic society underneath Part 1. It must persuade a court docket that there’s a rational connection to a urgent and substantial concern – containing a pandemic – that will justify the restrictions 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 prior to now that Constitution rights not contemplated underneath Part 33 have a particular standing. “Whereas deference could also be applicable on a call involving competing social and political insurance policies, it’s not applicable on a call to restrict elementary rights,” the Supreme Court docket of Canada rule in Sauvé v. Canada, a landmark choice holding that prisoners have a proper to vote underneath 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 in the case of Part 1.”
Following that logic, the federal government would possible have to satisfy a better bar to justify a violation of mobility rights, as it might for voting rights underneath Part three.
A court docket will even contemplate completely different contextual parts for an all-out ban than it might for an interim order on testing necessities for all air travellers coming into Canada. “The Part 1 argument is clearly going to be just a little bit completely different,” says Froc. “Governments have a very powerful time exhibiting that absolute bans are minimally impairing. The courts often 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 effectively.”
It is price 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 underneath 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 world ban, the federal government must exhibit, “based mostly on the science that journey will increase the danger” of contagion and stability that towards a minimal impairment of rights.
“While you put a variety of measures in place, they could work together,” says Sullivan. “And that is what public well being is: the precautionary methodology […] However I actually consider that the rational connection and the least intrusive measures have to be based mostly in science […] And once you do the balancing train, the federal government has to take a look at the financial impression. The federal government has to take a look at the social impression — these issues that do not usually 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 might 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 is known as a coverage name. And that is why a lot deference is given to authorities. What court docket needs 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 folks dying every single day? My intestine sense is court docket may err on the aspect of warning. However on the similar time, they’ll be involved about what precedent this units.”
Yves Faguy is the Editor-in-chief of CBA Nationwide Journal.