Travellers walk past the Air Canada domestic check-in area at Vancouver International Airport in July, 2021. The top court deemed the pandemic travel rules to be in bounds with the reasonable limits on rights and freedoms in Section 1 of the Charter.DARRYL DYCK/The Canadian Press
In the early days of the pandemic, May, 2020, Kimberley Taylor’s mother, Eileen, died in St. John’s at age 75 of natural causes.
Kimberley lived in Halifax and sought to attend the small memorial service but because of travel restrictions, the Newfoundland government rejected her initial request.
She missed the burial that was attended by her father, sister and niece. “I was denied the ability to join my family to grieve my mother,” said Ms. Taylor earlier this week.
Soon after missing the service, Ms. Taylor, along with the Canadian Civil Liberties Association, launched a legal challenge. They asserted that the strict travel restrictions violated mobility rights within Canada as guaranteed by Section 6 of the Charter of Rights and Freedoms.
On Friday morning, all nine judges of the Supreme Court of Canada provided an expansive view of Canadians’ Charter mobility rights. The top court ruled that Ms. Taylor’s rights were in fact violated by Newfoundland’s pandemic rules. However, because of the “grave emergency,” the court deemed the pandemic travel rules to be in bounds with the reasonable limits on rights and freedoms in Section 1 of the Charter.
“This is a great ruling – and an important one,” said Jessica Kuredjian, a lawyer at Cassels in Toronto who was counsel for the Canadian Constitution Foundation, an intervener in the case. “It’s a very human case. It’s a great example of where Charter rights impact the real rights of everyday citizens.”
The ruling – at more than 200 pages and more than 50,000 words – is significant on various fronts: political powers, constitutional rights, legal analysis.
First, it will serve as a precedent for the ambit of government actions and restrictions during potential health emergencies in the future. The court was deferential in its view of Newfoundland’s strict travel restrictions as reasonable, when it could have said other less strict measures may have achieved the same goal of limiting the spread of a deadly virus.
While all the judges agreed on the main points, the judgment split into several camps on an analysis of the Charter.
A majority of five judges, in a decision written by justices Andromache Karakatsanis and Sheilah Martin, said deaths and medical-scientific unknowns early in the pandemic “created an extraordinarily difficult situation where decisions had to be made swiftly to attempt to protect health and reduce further loss of life.”
This is the latest big-court judgment that delineates individual rights against government powers coming out of major decisions made during the pandemic. A month ago, the Federal Court of Appeal ruled that the federal government’s use of the Emergencies Act in 2022 to quell large protests was not legally justified.
Friday’s ruling is also an important addition to the legal annals that detail facets of the 1982 Charter of Rights. Many sections of the Charter have been subject to extensive legal wranglings and numerous court decisions over the years. But Section 6, mobility rights, is not one of those.
“There really was a dearth of jurisprudence on the topic,” said Anaïs Bussières McNicoll, director of the Civil Liberties Association’s fundamental-freedoms program.
The decision on pandemic travel restrictions is effectively the Supreme Court’s first in-depth consideration of the meaning of Section 6 of the Charter as it relates to Canadians’ general freedom to move around the country.
The majority of five judges wrote of a “generous protection” that must be seen in the words of a Charter right to safeguard those rights. On the concept of mobility, they evoked rights stretching back nearly a millennium in the common law to the 1200s, and back further beyond that to “ancient customs.”
They also said mobility rights play a unique role in the Charter’s “nation-building objective.”
Specifically, the majority concluded that Section 6(1) “guarantees citizens a right to move throughout Canada without restriction.”
This is important because the text of Section 6(1) does not clearly state such a right: “Every citizen of Canada has the right to enter, remain in and leave Canada.”
But the majority’s ranging analysis deemed this to include movement within the country.
Despite the court’s unanimity in the case on the main questions of expansive mobility rights and reasonable limits, it split on how Section 6 should be read.
In the main partial dissent, written by justices Nicholas Kasirer and Mahmud Jamal, and joined by Chief Justice Richard Wagner, the group said Section 6(1) protects rights related to international mobility for Canadian citizens.
They instead said it is Section 6(2) that protects unrestricted mobility within all of Canada for both citizens and permanent residents.
The text of Section 6(2) speaks of people being able to move and take up residence in other provinces, and to pursue work throughout the country.
The majority of five judges also concluded that Section 6(2) guarantees mobility rights without restrictions.
“This is a big win for freedom of movement,” said Christine Van Geyn, executive director of the Canadian Constitution Foundation. “It’s one thing to say your Section 6 right to mobility can be limited under Section 1. It’s another thing entirely to say that the Section 6 right to move freely about the country doesn’t exist at all. That was the government’s outrageous position and they were defeated entirely.”
The Newfoundland government did not immediately respond to a request for comment on Friday.
