Say your mother lives in New Brunswick and you live in Montreal. She calls you and says she’s worried. She isn’t sick with COVID-19, but her home care nurse has stopped showing up and she’s afraid to go out grocery shopping. She’s hoping you can move into her spare bedroom to help out until the crisis blows over.
You’d do anything for your mom, so you pack your suitcase and drive to the border of New Brunswick. When you get there, an RCMP officer waves you down. He asks whether you’re a New Brunswick resident and why you’re trying to enter the province. You explain the situation.
“Sorry, but the premier has ordered a halt to all unnecessary travel into the province by non-residents,” he says. “I’m ordering you to turn your car around.”
Can he really do that?
Several provinces and territories including New Brunswick, Nova Scotia, Prince Edward Island, Nunavut and Northwest Territories have put up roadblocks or closed their borders in response to the COVID-19 crisis. New Brunswick Premier Blaine Higgs has gone so far as to caution non-residents that “unnecessary travel is no longer permitted.” The New Brunswick government states on its website that “peace officers are authorized to turn away visitors when they attempt to enter.”
These are serious restrictions on liberty that might not be constitutional.
Section 6(2)(a) of the Canadian Charter of Rights and Freedoms guarantees every citizen and permanent resident the right “to move to and take up residence in any province.” The 1982 Charter is part of Canada’s constitution, which means that all other laws need to be compliant, even the emergency legislation that provinces are relying on to place restrictions on travel. That means that even if a provincial act states that a government official can restrict travel—for example, New Brunswick’s Emergency Measures Act says its minister of public safety can “control or prohibit travel to or from any area or on any road, street or highway”—the Charter may override any orders made using that provision.
The Charter’s purpose is to protect Canadians from governments who might violate their rights or unduly restrict their freedoms, so it becomes especially important to consider at times of crisis when governments are making orders without much debate.
Section 6(2) has not come up much in our courts, so it’s unknown whether shutting down borders would be a violation. Section 1 of the Charter allows laws that would otherwise violate our rights and freedoms if they are “reasonable” and can be “demonstrably justified in a free and democratic society.” Full shutdowns of provincial borders to non-residents might not be justified if the law creating them is found to restrict section 6 rights in a way that goes beyond a minimal impairment of the right. For example, shutting down provincial borders completely to non-residents to slow the spread of COVID-19 might not be a minimal impairment if a province could achieve the same goal by enforcing 14 days of self-isolation. That’s what Newfoundland and Labrador have chosen to do.
Asher Honickman, a partner at Matthews Abogado and a constitutional litigator, is skeptical that section 6(2) rights could be used to stop a provincial government from barring a non-resident’s entry. That’s because he says the framers of the constitution might not have meant to create a general right of movement within Canada, but a more limited right to move between provinces for work.
However, he does think these restrictions could be unconstitutional in a different way. Our other main constitutional document, the Constitution Act, 1867, divides powers between the federal and provincial governments. Honickman says the movement of people between provinces is “absolutely a federal power.” He says this means that provinces can’t shut down interprovincial highways. However, that doesn’t mean that provincial governments won’t find creative ways to stop the flow of people into their provinces that courts would accept. It’s also unlikely that any Canadian will ever go to court to challenge these laws.
Besides, if premiers really want to shut down provincial borders, they can just ask Justin Trudeau. Honickman says the federal government almost certainly has the power shut down provincial borders by invoking its Emergency Act. The Constitution Act, 1867 gives Ottawa the power to “make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act,” and that, Honickman says, includes the power to quarantine entire provinces during national emergencies like COVID-19.
This article was written by the CCF Law Intern Josh Dehaas.
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