Unconstitutional travel bans are causing real harm

Unconstitutional travel bans are causing real harm

This article by CCF Executive Director Joanna Baron was originally published in the National Post.

While the urge to close down some provincial borders to stop the spread of COVID-19 is understandable, such restrictions on the free movement of Canadians are draconian and arguably unconstitutional, and they are causing real harm by preventing people from attending the funerals of their family members.

Jacqui Delaney, who lives in Ottawa, was denied entry into New Brunswick on May 21. Her father, Roy Budden, had undergone emergency surgery on May 19, after being diagnosed with colon cancer less than a week prior. His condition steadily declined and on May 31, he died. Due to COVID-19 restrictions, there was no one at the hospital to hold his hand in his last days in the ICU. Even his wife of 25 years was not allowed to be there until the last 30 minutes of his life. Delaney attempted to fly to New Brunswick, so that she could comfort her grieving family and attend the funeral. She was even willing to self-quarantine upon her arrival. The province, however, did not respond to her reasonable request to enter in time. On June 3, she attended her father’s funeral over Skype, unable to comfort her loved ones in person.

Delaney’s story is not unique. I’ve been in touch with numerous people in similar situations who were denied entry into the province to attend the funerals of immediate family members.

A vocal number of New Brunswickers seem to be content with the province’s restrictions. Premier Blaine Higgs enjoys one of the highest approval ratings in the country. And after I was quoted by the CBC discussing the Canadian Constitution Foundation’s view that these border restrictions are unjustified violations of our constitutional liberties, I received more threats and hate mail than ever before — and I’ve defended accused murderers and challenged Canada’s ban on private health insurance.

Fear, it seems, is a powerful motivator, yet our country has enjoyed peace and prosperity despite geographic, cultural and linguistic divides, precisely because of our adherence to our Constitution and our serious commitment to delineating the sphere of human liberty that cannot be violated by government, at least in the absence of a very clear justification.

The border restrictions are unconstitutional in two ways, in our view. First, they violate the Charter of Rights and Freedoms’ guarantee in Sec. 6(2)(a), which states that every citizen and permanent resident may “move to and take up residence in any province.” Even the emergency legislation that provinces are relying on to place restrictions on travel must be compliant with the charter. Second, restricting travel between provinces is well-established as an exclusively federal power, like interprovincial highways and pipelines.

Some have argued that Sec. 6 is subject to the charter’s balancing clause, Sec. 1, which allows for reasonable limits to be placed on charter rights, so long as they are demonstrably justified in a free and democratic society. But it’s dubious whether these restrictions would pass that test even during a pandemic, given that every other province has been able to flatten the curve by imposing mandatory 14-day quarantine requirements on travellers. The severity of the restrictions must also be taken into account, as the more severe the restriction, the more onus is placed on government to justify it.

To add insult to injury, the New Brunswick government has outsourced the job of deciding who is allowed to grieve for their dead family members to a private organization. From what we know, the government has functionally delegated not just the processing of requests to enter the province, but also the decision-making itself, to the Red Cross, and it has not put in place any means of oversight or appeal.

In other words, New Brunswick has delegated the function of a governmental power that directly infringes upon the rights of Canadians to a private non-governmental organization. And it has done this with no mechanism to appeal or review the NGO’s decisions. Is this really a state of affairs that bears any proportionality to the nature of the COVID-19 threat?

The Red Cross is not democratically accountable to the people. New Brunswick’s Office of the Chief Medical Officer of Health, which receives statutory authority to determine exemptions to the travel ban in Sec. 9 of the province’s Emergency Management Order, cannot delegate its authority to another actor, much less a private NGO. This is based on the administrative law principle of delegatus non potest delegare: the beneficiary of a statutory power cannot delegate its exercise.

What we have is a government that has outsourced its moral responsibility to its citizens and is actively denying Canadians their constitutional right to free movement, and it’s doing so at the expense of grieving families, which only adds insult to injury.