What is a reasonable limit on our right to travel?
Our mobility rights under Section 6 of the Charter are receiving unusual attention. That’s because imposing travel bans is easier said than done.
With March break approaching, Canadian politicians are urging travelers to cancel their plans and not undermine efforts to limit the spread of COVID-19.
Many Canadians, accustomed to heading to warmer climates as a coping mechanism to survive the last leg of winter, will grudgingly oblige. Others will do as they please, unless the government takes a firmer hand. Which is why Quebec Premier François Legault has repeatedly called on Ottawa to ban all non-essential international travel or, at the very least, force anyone returning to Canada from vacation to quarantine for two weeks at their own expense. The Prime Minister is now warning of new measures that could "significantly impede" the ability of Canadians to return home "without warning." Earlier this month, his government enacted testing requirements for air travellers entering the country to prevent the spread of the virus and variants of COVID-19 in the country.
The question is, how far can the government go in imposing travel restrictions that effectively prevent Canadian citizens from leaving and entering the country – measures that on their face violate Section 6(1) of the Canadian Charter of Rights and Freedoms?
"Section 6 is pretty clear, in black and white," says Kerri Froc, a law professor at the University of New Brunswick. "It gives an unqualified right to enter, remain in, or leave Canada. So, whether it's a ban on international travel that won't let people leave, or whether it's qualifying the right to enter Canada because you have to clear a [COVID] test, it's the same issue because it's an absolute right."
Complicating matters further, says Froc, mobility rights under Section 6 were considered to be of such fundamental importance that the Charter's drafters decided that governments could not override them by invoking Section 33, the notwithstanding clause.
The government could try to justify travel restrictions by arguing that they are reasonable and demonstrably justified in a free and democratic society under Section 1. It would have to convince a court that there is a rational connection to a pressing and substantial concern – containing a pandemic – that would justify the limitations to Section 6; and that the government's actions are proportionate in addressing that concern.
This is where the notwithstanding clause re-enters the picture. Courts have ruled in the past that Charter rights not contemplated under Section 33 have a special status. "While deference may be appropriate on a decision involving competing social and political policies, it is not appropriate on a decision to limit fundamental rights," the Supreme Court of Canada rule in Sauvé v. Canada, a landmark decision holding that prisoners have a right to vote under Section 3 of the Charter." The governments of the day didn't dare put them in Section 33, so they have a special status when it comes to Section 1."
Following that logic, the government would likely have to meet a higher bar to justify a violation of mobility rights, as it would for voting rights under Section 3.
A court will also consider different contextual elements for an all-out ban than it would for an interim order on testing requirements for all air travellers coming into Canada. "The Section 1 argument is obviously going to be a little bit different," says Froc. "Governments have a really tough time showing that absolute bans are minimally impairing. The courts usually like to see better 'tailoring' of the infringement and that government has been thoughtful about it… But by the same token, you're consigning some Canadians to exile abroad, and so that raises pretty fundamental issues as well."
It's worth noting that, last summer, the Supreme Court of Newfoundland and Labrador upheld a provincial travel ban. It found it to be in violation of Section 6(2) of the Charter, which guarantees interprovincial travel to Canadians and permanent residents, but lawful under Section 1. The Canadian Civil Liberties Association, which challenged the ban, is appealing the decision.
Rosellen Sullivan, who represented the CCLA at trial, says that in the context of an international ban, the government would have to demonstrate, "based on the science that travel increases the risk" of contagion and balance that against a minimal impairment of rights.
"When you put a lot of measures in place, they might work in combination," says Sullivan. "And that's what public health is: the precautionary method […] But I really believe that the rational connection and the least intrusive measures must be based in science […] And when you do the balancing exercise, the government has to look at the economic impact. The government has to look at the social impact — those things that don't typically get factored in or discussed when we're talking about public health. Or that don't get the attention they deserve."
Restrictions on travel may seem like a draconian measure to many Canadians. But that's not to say the courts won’t lend the government a sympathetic ear, says Froc. "Section 1 is really a policy call. And that's why so much deference is given to government. What court wants is to have it on its shoulders that it strikes this down and then we're into a pandemic where there's double the number of people dying every day? My gut sense is that a court might err on the side of caution. But at the same time, they're going to be concerned about what precedent this sets."