The Constitutionality of Interprovincial Boundary Closures (Part II)

INTRODUCTION

In my post last week, I blogged the background to an analysis of constitutional challenges to interprovincial border closures. I briefly referred to the Supreme Court of Canada’s decision in Comeau, which considered the constitutionality of barriers to interprovincial trade represented by section 134 of the New Brunswick Liquor Control Act limitations on the amount of liquor and beer that someone could bring into New Brunswick from another province. I also set out some of the border closures established by provinces and territories during the coronavirus pandemic, with an emphasis on the situation as the jurisdictions begin to reopen businesses, recreational and other facilities. In this post, I consider the constitutionality of the border closures.

The main provisions under the Canadian Charter of Rights and Freedoms that the border closures are said to contravene are sections 6 and 7. However, 8 and 9 may also ground a challenge to specific aspects of the mandatory orders, the enforcement provisions.

The Canadian Civil Liberties Association (“CCLA”) mounted a challenge to Newfoundland and Labrador Bill 38 (amending the Public Health Protection and Promotion Act (“PHPPA”), given royal assent on May 6, 2020). A Nova Scotia woman was denied entry into Newfoundland in order to attend her mother’s funeral, even though she had been prepared to isolate for 14 days. According to the CBC news report, she was subsequently given an exemption. However, the CCLA believes Bill 38 warrants scrutiny both because of the closure provisions and also the police enforcement provisions, which it believes are the most severe in the country.

In Newfoundland and Labrador, the minister responsible for the PHPPA may, on the advice of the chief medical officer of health, declare a public health emergency for 14 days, as long as certain conditions are met, and may extend the declaration for further periods of 14 days (s. 27 PHPPA). Similar provisions exist in other provinces and territories, although there are important variations (for example, in Ontario the lieutenant-governor in council can make a declaration for 14 days, after which it can be extended for subsequent 28 day periods by the legislative assembly [see the Emergency Management and Civil Protection Act, ss.7.0.1 and 7.0.7]).

Section 28 of the PHPPA provides for the enforcement of special measures taken by the Chief Medical Officer of Health during a public health emergency. Among the orders the Chief Medical Officer of Health may make are those “restricting travel to or from the province or an area within the province”; they also may “take any other measure the Chief Medical Officer of Health reasonably believes is necessary for the protection of the health of the population during the public health emergency.” Bill 38 adds section 28.1 to the PHPPA. Section 28.1 provides that during the time a measure implemented by the chief medical officer of health under section 28(1) is in effect, “the Minister of Justice and Public Safety may, upon the request of and following consultation with the minister [“the minister appointed under the Executive Council Act to administer this Act”], authorize a peace officer” to locate, detain and take to a particular location, including an entry point to the province an individual “who is in contravention of the measure” and “provide the necessary assistance to ensure compliance with the measure”. The peace officer must advise the individual of the reasons for detention or conveyance, the right to instruct counsel without delay and where they are taking the individual.

REVIEW OF FEDERAL, PROVINCIAL AND TERRITORIAL BORDER CLOSURES

A quick review of the federal, provincial and territorial closure measures at this stage in the pandemic, as jurisdictions are gradually returning to increased public activity, indicates some similarities with those in Newfoundland and Labrador, as well as differences in severity.

The closure of Canada’s borders is designed to implement the directive to avoid non-essential travel outside Canada. Among other requirements, all travellers returning to Canada must provide specified information; Canadian citizens or permanent residents with symptoms are not allowed to enter by air and are subject to mandatory quarantine for 14 days (under prescribed conditions) and those with symptoms must also self-isolate. Penalties for failing to comply with requirements could lead to 6 months in prison and/or $750,000 in fines; and someone who wilfully or recklessly contravenes the Quarantine Act could be subject to a fine of up to $1,000,000 or imprisonment of up to 3 years or both. RCMP, provincial and local police have the authority to ticket people who do not comply with the Quarantine Act, with fines between $275 and $1,000. There are exemptions to these provisions for people in specified categories as long as they have no symptoms.

Non-essential travel between the US and Canada for foreign nationals is also restricted until at least June 21, 2020, including “immediate family members, such as spouses/partners”. Foreign nationals not entering from the US will not be allowed to enter Canada, although there are exemptions as long as a person does not have symptoms.

New Brunswick prohibits all “unnecessary” travel into the province and anyone who is entering must comply with certain requirements; anyone entering including returning residents, must self-isolate for 14 days. Peace officers may turn visitors away. There are the usual exemptions, as well as others not usually specified, including people just passing through the province to elsewhere, although they must stop only for necessary reasons (also see a similar provision for people transiting through the NWT to Nunavut for less than 12 hours and for non Yukon residents travelling to a neighbouring jurisdiction, allowed a maximum 24 hours), “a family unit of parents and children, to facilitate shared custody of children as per a court order or formal custody agreement” and, if approved and possibly required to self-isolate, to provide care or companionship to a palliative care patient, to access child care services not available by other means or to provide care for similar humanitarian needs. (See sections 6 to 8 of NB’s Renewed and Revised Mandatory Order dated May 22, 2020.)

Visitors are not allowed to enter the Northwest Territories. Residents may return, although they are discouraged from leaving, and must self-isolate in one of only four places Yellowknife, Inuvik, Hay River or Fort Smith, regardless of where they actually live. Otherwise, persons in specific categories may enter. Among others, this includes individuals “participating in traditional harvesting and on the land activities that cross the NWT border but do not enter any communities as part of this”.

Yukon also prohibits non-residents from entering Yukon, with some exceptions, including family members who will be living with the Yukon resident, and persons “exercising an Aboriginal or treaty right (for the time needed to exercise the right)”. Enforcement officers may turn individuals seeking to enter back if they do not satisfy requirements; as of May 22nd, 60 people had been turned back out of 8,369 travellers (for the north generally, see this CBC report that 100 people had been denied entry as of May 7th). (See the Yukon border control measures order here.)

Nunavut also restricts entry with exceptions, including those exercising Inuit or Aboriginal or treaty rights, and foreign workers; as does NB, Nunavut has a “basket clause” that someone who has the authorization of the Chief Public Health Officer and has “an urgent and substantial need to enter Nunavut”. However, residents returning to Nunavut must complete a 14 day self-isolation period outside Nunavut (in Ottawa Ontario, Winnipeg Manitoba, Edmonton Alberta, or Yellowknife Northwest Territories) before they will be allowed to enter. (See the Travel Restriction Order #3 under the Public Health Act here.)

Nova Scotia requires people who have travelled outside the province to self-isolate for 14 days when they enter, regardless of whether they have symptoms of COVID-19 or not (see sections 3 and 4 of the Medical Officer of Health’s Order under the Health Protection Act).

In some provinces, non-essential travel to other provinces is discouraged, although not prohibited. Although travellers may enter British Columbia, for example, they must provide a self-isolation plan that will be reviewed at specified entry points, unless exempted (also see the requirement for travellers returning to Alberta from outside Alberta by air). As with other jurisdictions, travellers to and from BC must observe the rules governing travel from and to other jurisdictions. Highways linking BC and the Northwest Territories and BC and the Yukon may be closed to non-essential travel. And intraprovincial travel may be affected by the rules governing modes of travel, such as inland ferries. Manitoba requires self-isolation for persons entering the province whether residents or not and regardless from where, from within or outside Canada; again, there are exemptions.

Some jurisdictions prohibit intraprovincial travel to some areas of the province. Manitoba, for example, prohibits travel to northern Manitoba and remote communities) and Saskatchewan has recently restricted travel from and into the northwest region, whether from within Saskatchewan and elsewhere, although this is subject to a number of specific provisions (see the Public Health Order: Updated Travel Restrictions in Northwest Region (May 20, 2020)). Quebec has gradually been easing restrictions on intraprovincial travel, but discourages travelling from one region to another and has established checkpoints in some regions into which only essential travel is allowed “in order to protect the most vulnerable populations”.

Other jurisdictions do not impose or discourage intrajurisdictional travel, but do recommend safe practices (Alberta, for instances, advises people travelling within the province to “pack your own food and stop for gas only if necessary”). Ontario does not have restrictions.

Provinces also provide for penalties for failing to comply with isolation requirements (see, for example, Alberta’s provision for a $1,000 fine and its statement that [c]ourts could administer fines of up to $100,000 for a first offence and up to $500,000 for a subsequent offence for more serious violations”. Saskatchewan has jailed people who refuse or are unable to self-isolate.

I also note that First Nations are blocking access to reserves in order to control the spread of COVID-19 and, in particular, out of concern for the anticipated second wave of the virus in the fall (see a story in the National Post for details). In some cases, the community has instituted a complete lockdown, in others, the approach has been less restrictive forms of border control. These are community decisions and I do not address them here.

This survey of provincial and territorial border restrictions reveal that each jurisdiction has developed an approach relevant to its own circumstances. They are all subject to federal rules governing the closure of the Canadian border to the extent people seeking to enter Canada are subject to those rules regardless of where they seek to enter. Beyond that, however, they have formulated measures that differ from each other in severity and to some extent, in the exceptions to the general restrictions. Given the different resource, geographic and other factors that characterize the provinces and territories, we cannot expect them to implement the same schemes. It is also not surprising that in some jurisdictions, there are formal restrictions governing intraprovincial travel.

SUSCEPTIBILITY OF BORDER CLOSURES TO CHARTER CHALLENGES

The question, then, is whether provincial/territorial border closures or restrictions implemented during the pandemic are prohibited by rights guaranteed under the Charter, particularly if the travel across the border is for recreational or short term purposes (that is, not to move into the province or territory and take up residence) (on this last point, New Brunswick explicitly identifies as a particular category of entry someone intending to relocate there permanently).

My main focus is on sections 6 and 7 of the Charter.

Section 6

Section 6 provides as follows:

(1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

A few comments before undertaking a more thorough analysis of section 6:

section 6(1), “the right to enter, remain in and leave Canada”, is applicable only to “citizens” of Canada. It does not apply to permanent residents and it does not on its face refer to movement within or across Canada. This guarantee is why when the federal government closed the Canadian borders, it had to allow Canadians to return from other countries, albeit with requirements to quarantine or self-isolate unless it could justify not doing so under section 1 of the Charter.

subsection 2(a) and (b), the right “to move to and take up residence in any province” and “to pursue the gaining of a livelihood in any province” are on the wording of section 6(2) one right. Subsection (2)(a) on its face does not include the right to vacation in another province or territory, but appears to be limited to a “permanent” move. Subsection 2(b), while appearing related to subsection 2(a), also appears to allow working in a province without taking up residence there. Subsection 6(2) appears to exclude vacationing visitors or people entering a province for any other purpose.

Subsections 6(3) and (4) do not directly apply here. However, subsection 6(4) does support the purpose of section 6 as being in relation to economic rights and not a general mobility provision.

Two final general points about section 6: 1) it is not subject to section 33’s override; 2) By virtue of section 30 of the Charter, it also applies to the Yukon and the Northwest Territories, extended to Nunavut by caselaw (see, for example, R. v. Ippak, in which the Nunavut Court of Appeal explained, “Nunavut and Sanikiluaq [location of the search and seizure at issue] are not Charter free zones” (paras. 3 and 86) and Chwyl v. Law Society of Nunavut, based in part on section 6).

Section 6(1) would apply in this scenario if a Canadian citizen — and only a citizen, as defined by citizenship legislation — left Canada via, for example, Manitoba, to a country permitting entry to non-residents and then sought to return to Canada by flying into a province that had closed its borders (for example, New Brunswick). Assuming the individual were refused entry to NB from outside Canada, this would constitute a denial of the right to enter Canada guaranteed by section 6(1).

The other issue raised by subsection 6(1) is whether “remain” within Canada encompasses movement within Canada. As Abella J. in Divito v. Canada (Public Safety and Emergency Preparedness) explains, article 12 of the International Covenant on Civil and Political Rights (ICCPR), to which Canada is a signatory, is helpful in interpreting section 6:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. (emphasis added)

4. No one shall be arbitrarily deprived of the right to enter his own country.

(Also see the Universal Declaration of Human Rights, article 13 of which declares, “Everyone has the right to freedom of movement and residence within the borders of each State” and otherwise refers to the right to work.)

Section 6(1) does not state that remaining in Canada includes a right to remain in a particular part of Canada (especially if one is not already in that part of Canada). It does not explicitly include a right to move within Canada; it would have been easy to have drafted section 6(1) to refer to liberty of movement within Canada, but it does not refer to any such right. Its wording connotes entering into or leaving to go to another country (although the other country may determine entry to that country), or not being required to leave Canada; it refers to the relationship of Canada with other countries. Put another way, it is a right that operates on the national level. Article 12 of the ICCPR does refer to “liberty of movement” within the territory of the State, joined with the right to choose one’s residence, which infers movement within Canada. This right is addressed in section 6(2).

The cases addressing section 6(1) are concerned with issues such as extradition, the right to a passport and the like, all related to national questions, not questions in relation to intra-Canada mobility.

Most persons during the pandemic seeking to enter a province refusing entry to most travellers or to a province allowing entry but requiring an extensive self-isolation period (usually 14 days) would be entering from another province. While this might be said to be “entering Canada”, it is more accurately described as interprovincial travel.

The first Supreme Court of Canada decision about section 6(2) (indeed, the first SCC case dealing with the Charter at all) involved a South African lawyer seeking admission to the British Columbia bar, but unable to satisfy the citizenship requirement (Law Society of British Columbia v. Skapinker). He was unsuccessful because the Court held section 6 was about mobility, not about the right to work. (The citizenship requirement was subsequently struck down under section 15 of the Charter in Andrews v. Law Society of British Columbia.)

After considering various interpretations of section 6(2), Estey J., for the Court, concluded,

para. (b) of subs. (2) of s. 6 does not establish a separate and distinct right to work divorced from the mobility provisions in which it is found. The two rights (in para. (a) and in para. (b)) both relate to movement into another province, either for the taking up of residence, or to work without establishing residence. (Skapinker, para. 33) (emphasis added)

In Black v. Law Society of Alberta (1989), the decision resulting in the development of national law firms, La Forest J., for the majority, placed section 6 of the Charter within the intention of the drafters of the British North America Act, 1867 to establish an economic union. As he then explained,

Before the enactment of the Charter, however, there was no specific constitutional provision guaranteeing personal mobility, but it is fundamental to nationhood, and even in the early years of Confederation there is some, if limited, evidence that the courts would, in a proper case, be prepared to characterize certain rights as being fundamental to, and flowing naturally from a person’s status as a Canadian citizen.

Justice La Forest then refers to comments by Rand J. in Winner v. S.M.T. (Eastern) Ltd. to the effect that “Canadian citizenship carries with it certain inherent rights, including some form of mobility right. The essential attributes of citizenship including the right to enter and the right to work in a province, he asserted, cannot be denied by the provincial legislatures.” The benefit of being able to move across the country is to be able to work. Justice Rand reached the following conclusion: “It follows, a fortiori, that a province cannot prevent a Canadian from entering it except, conceivably, in temporary circumstances, for some local reason as, for example, health.” (emphasis added)

The economic union had not yet been achieved with the advent of the Charter and, in La Forest J.’s view, section 6 was intended to help achieve it (Comeau, discussed briefly in Part I, reveals the extent to which this project remains unfinished), specifically with respect to the relationship of Canadian citizens to their country:

This approach is reflected in the language of s. 6 of the Charter, which is not expressed in terms of the structural elements of federalism, but in terms of the rights of the citizen and permanent residents of Canada. Citizenship and nationhood are correlatives. Inhering in citizenship is the right to reside wherever one wishes in the country and to pursue the gaining of a livelihood without regard for provincial boundaries. Under Charter disposition, that right is expressly made applicable to citizens and permanent residents alike.

Furthermore, provisions that do not seem to affect the pursuing of a livelihood may nevertheless do so; it is therefore necessary to examine the substance of the provisions, in a way similar to an indirect discrimination analysis.

In its 1997 decision in Canadian Egg Marketing Agency v. Richardson, the Supreme Court of Canada viewed section 6 mobility rights as human rights:

The mobility right, grounded in a concern with fundamental human rights, is conceptually distinct from a mobility right which is essentially concerned with interjurisdictional immunity. It may demand a different scope in order to satisfy a different purpose. Section 6 is rooted in a concern with human rights, not the conditions or operation of the federal structure of Canada [as the right to move about Canada and “settle where one wished” was previously]. (Richardson, para. 59)

Thus section 6 “responds to a concern to ensure one of the conditions for the preservation of the basic dignity of the person” (Richardson, para. 60). It is the combination of sections 6(2) and 6(3) that “advance this purpose by guaranteeing a measure of autonomy in terms of personal mobility” that is free from discriminatory treatment based on residence. These comments must be viewed in the context of section 6 as a whole.

Challenges to the border closures and restrictions under section 6 must address the purpose and context of section 6. The claim of persons seeking to visit a province or territory denying entry to non-residents for the purpose of visiting their cottage for the summer or to take a camping or other type of vacation does not fit into the purpose of section 6, which is related to mobility for the purpose of taking up residence and employment or working while living elsewhere. Equally, section 6 does not address claims based on humanitarian grounds. Claims on these sorts of grounds do not contravene section 6.

Whether a current non-resident could rely on section 6 if they are intended to take up residence there for employment purposes is a more complicated matter. This fits squarely within the purpose and wording of section 6. Many provinces have exemptions that might relate to this claim (New Brunswick refers to “unnecessary” travel, for example, and Nunavut has its “basket clause”); others do not. Provinces requiring self-isolation would either not contravene section 6 or would satisfy section 1 (I address section 1 below). I also note that all jurisdictions have exemptions that allow persons to enter for the purpose of essential work and thus refusals for other work would have to be assessed against public health orders that have closed non-essential workplaces for residents of the jurisdiction and not only those entering from outside the jurisdiction.

Section 7

Restrictions on mobility in non-economic contexts might run afoul of section 7 of the Charter: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” I limit my discussion of section 7 at this stage to actual closures as opposed to the requirement to complete forms or to spend a period of self-isolation after entry.

Section 7 applies to “everyone” and thus is not limited, as is section 6, to Canadian citizens (s.6(1)) or to permanent residents of Canada (ss.6(2)). It can be argued that denying someone the right to cross a provincial border and spend time in another province or territory interferes with someone’s liberty interest to move around Canada. Even so, would all reasons for wanting to cross the border of a province denying the opportunity constitute a contravention of the section 7 liberty interest? Would a denial of someone’s opportunity to spend time at their summer home, for instance, constitute a sufficient denial of the liberty interest to amount to an infringement of the first part of section 7?

It might also be argued that someone who is unable to visit a dying parent in another province, for example, because of “closed” borders suffers a psychological impact that is protected by section 7’s security interest. Or could someone who requires medical treatment not available in their home province make a credible claim to a contravention of their security — and potentially — life interest?

A broad range of claims have been protected by section 7. Most cases relating to the protection of “life” in section 7 have tended to treat the term narrowly and have been based on state action having a nexus to death or increased risk of death. Citing Chaoulli (a case actually under Quebec’s Charter of Human Rights and Freedoms, as well as the Canadian Charter) and PHS Community Services Society (denial of required exemption to operate safe injection site), the Supreme Court of Canada stated in Carter, holding that the Criminal Code prohibition against assisted suicide was unconstitutional, that “the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Conversely, concerns about autonomy and quality of life have traditionally been treated as liberty and security rights. We see no reason to alter that approach in this case.” (Carter, para. 62)

Chaoulli has particular relevance for the scenario in which someone requiring medical treatment might be denied entry, since it involved a claim that Quebec’s ban on private medical insurance resulted in long waiting times and thus delayed medical treatment. I note here again residents of a province or territory have been denied potentially life-saving medical treatment through the conservation of medical resources to fight cases of COVID-19; in some cases, treatment might have been delayed (although if absolutely necessary, likely addressed) or people have been afraid to go to hospital for needed treatment.

New Brunswick has recognized there may be a need to travel into the province for medical treatment as an example of “necessary travel” (section 8 of the Mandatory Order). Even under Newfoundland and Labrador’s strict border closure provisions, the Chief Medical Officer of Health may approve entry “in extenuating circumstances”. While other jurisdictions may not specify medical treatment as an “essential reason” or have the “basket clause”, it is possible that rather than find border closure orders as contravening section 7, a court would interpret “essential” travel as including this reason, unless there were a specific statement otherwise.

The majority of the Supreme Court of Canada decided Godbout, which concerned a municipal requirement that its employees reside within the municipality or have their employment terminated, under Quebec’s Charter of Human Rights and Freedoms, reluctant to consider section 7 of the Canadian Charter when it was not necessary to do so; however, three judges also considered section 7’s liberty interest. Justice La Forest, speaking for himself and two other judges, discussed the section 7 jurisprudence at length (concluding that the liberty interest protected one’s choice of where to live). He summarized his view in general terms as follows:

…[T]he right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as “private”. Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. (Godbout, para. 66)

He continued, “choosing where to live will be influenced in each individual case by the particular social and economic circumstances of the person making the choice and, even more significantly, by his or her aspirations, concerns, values and priorities” and is therefore an example of personal autonomy as protected by section 7 (Godbout, para. 68).

Godbout was decided in 1997. In 2015, the Supreme Court of Canada considered the liberty interest section 7 in Carter. The Court held that the prohibition against assisted suicide was a contravention of a person’s “sense of dignity and personal autonomy” (Carter, para. 65), citing Blencoe, in which the majority of the Court held that “the s. 7 liberty interest is engaged ‘where state compulsions or prohibitions affect important and fundamental life choices'” (Carter, para. 68).

If the denial of entry to provinces or territories for reasons discussed does infringe the section 7 interests, is the denial in accordance with the principles of fundamental justice?

In Godbout, La Forest J. considered whether the deprivation of the right to liberty conformed to a principle of fundamental justice, which, as he noted, refers not only to procedural but also to substantive matters; thus, “if deprivations of the rights to life, liberty and security of the person are to survive Charter scrutiny, they must be ‘fundamentally just’ not only in terms of the process by which they are carried out but also in terms of the ends they seek to achieve, as measured against basic tenets of both our judicial system and our legal system more generally” (Godbout, para. 74). This requires a balancing within section 7 of the right of the individual and the goal sought by the state:

…[D]eciding whether the principles of fundamental justice have been respected in a particular case has been understood not only as requiring that the infringement at issue be evaluated in light of a specific principle pertinent to the case, but also as permitting a broader inquiry into whether the right to life, liberty or security of the person asserted by the individual can, in the circumstances, justifiably be violated given the interests or purposes sought to be advanced in doing so. To my mind, performing this balancing test in considering the fundamental justice aspect of s. 7 is both eminently sensible and perfectly consistent with the aim and import of that provision, since the notion that individual rights may, in some circumstances, be subordinated to substantial and compelling collective interests is itself a basic tenet of our legal system lying at or very near the core of our most deeply rooted juridical convictions. (Godbout, para. 76)

As Carter pointed out, the Court has identified several principles of fundamental justice, but “three have emerged as central in the recent s. 7 jurisprudence: laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object” (Carter, para. 72). The applicable principle must be compared to the law at issue (Carter, para. 73). However, crucially, this exercise does not include considering societal interests, which are more appropriately addressed under section 1 of the Charter; rather it is the impact on the individual that must be considered (Carter, paras. 80 and 85).

Nevertheless, it is difficult to avoid the societal concern at the root of a law (or, in this case, order under a law), since it is necessary to compare the deprivation with the object: for example, in Carter, the Court identified the object of the Criminal Code provision as protecting vulnerable persons; the comparison, though, is whether in catching the individual or other non-vulnerable individuals, it is overbroad. The Court held that it was. (See Carter, para. 86)

Justices Gonthier and Binnie, speaking for the majority in the Supreme Court of Canada’s decision in Malmo-Levine, described the notion of a principle of fundamental justice as follows:

for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. (Malmo-Levine, para. 113)

What principle of fundamental justice might be relevant to the restrictions on people’s liberty to enter a province at will or receive medical treatment (if not explicitly or indirectly permitted) or on people’s opportunity to spend time with a dying relative or attend their funeral, assuming any of these would be a deprivation of section 7?

Applying Carter‘s three principles of fundamental justice, do any restrictions on the section 7 interests have arbitrary, overbroad or grossly disproportionate effects? The object of the border closures is to protect the health of the residents of the jurisdiction, to control the spread of COVID-19, without overburdening health resources. In some cases, the mandatory orders recognize vulnerable populations and restrict intrajurisdictional movement accordingly.

Who do the mandatory orders (those that do exclude everyone who is not exempted explicitly or potentially) exclude? People who want to vacation in the jurisdiction: this is the group that jurisdictions are particularly seeking to exclude and the desire to vacation is not likely to contravene any of section 7’s interests. People from other jurisdictions who, for example, own cottages, may have a stronger case, but even so, it is difficult to think of this as such a fundamental right as to warrant the protection of section 7.

The other major group whose section 7 rights may be contravened are those who require medical care they cannot receive in their own jurisdiction or one with open borders, those who wish to spend time with a dying relative or attend their funeral and those who are separated from partners who have custody of their children. These matters are more likely to constitute protected interests under section 7. As already indicated, some of these reasons are already explicit or potential exemptions under the mandatory orders and thus these orders would not contravene section 7. (On this point, the woman who wished to enter Newfoundland and Labrador to attend her father’s funeral received an exemption; it would be within the Medical Officer of Health’s purview to decide this was an “extenuating circumstance” that permitted entry, although it appears that did not occur initially.) The mandatory order provisions relating to some of these reasons may also affect persons resident in the jurisdiction; or, having affected residents, might now have been loosened as part of the “opening up” process.

If the mandatory orders do not permit entry for the reasons related to medical treatment, access to children, visiting ill relatives or attending funerals, the provisions might be considered overbroad or grossly disproportionate and thus a contravention of section 7. (As in other circumstances, however, it might be that, for example, the parent resident in a province who does not have children living with them, might not be able to see their children during the stay-at-home restrictions and thus the non-resident does not have a stronger claim on the basis of the closure.)

Section 1

Assuming that the mandatory closures do contravene section 6 or 7, are they likely to be saved by section 1 of the Charter? Section 1 states, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” I consider both sections 6 and 7 together.

However, as the Court said in Carter, “It is difficult to justify a s. 7 violation”, given that the rights are fundamental and “‘not easily overridden by societal interests'”; in addition, if the impugned law is not consistent with fundamental justice, the government would likely have difficulty justifying it under section 1. It is this last point that may be the most important, since other the section 2 rights are listed under “Fundamental Rights” and the courts have not had difficulty addressing justifications for contraventions of those rights. Furthermore, neither the section 2 nor the section 7 rights are so fundamental that they cannot be overridden by section 33 of the Charter.

Protecting the health of a jurisdiction’s residents during a pandemic and in contemplation of a second wave of COVID-19 in the fall is a pressing and substantive objective. Controlling entry to the province of people from elsewhere who may have been subject to different responses to the pandemic and who may at some point require use of the jurisdiction’s resources may be considered rationally connected to the objective; the extent of exemptions and how persons fitting the exemptions are treated may be relevant here. The exemptions illustrate the jurisdiction has considered its own circumstances and attempted to tailor the closure order. Some reasons for claiming a contravention, if successful at the rights stage, may be considered minimally impairing (not being able to spend one’s vacation in the jurisdiction), while others may not (not being able to see one’s children). However, the risks inherent in exercising even those rights may be considered proportionate with, on balance, the salutary effect of protecting the jurisdiction’s residents outweighing the deleterious effects of the mandatory closure order.

Factors that a court might consider or that might influence a court’s decision in the case of a challenge include the following:

granting deference to a jurisdiction to develop its own response to the pandemic, especially since jurisdictions differ with respect to their vulnerable populations and in how they have approached the pandemic so far, including “reopening”;

the fact that one jurisdiction cannot affect another jurisdiction’s response;

whether closures are more restrictive compared to other jurisdictions and if so, why;

whether (under section 6 or other sections that might ground a challenge) the restrictions are overbroad or whether the exemptions are so extensive that they raise questions about the validity of the restrictions (that is, whether the mandatory order is actually rationally connected to the objective);

the relevance of data about the rate of infection, the number of cases, the likelihood of a second wave;

the section 7 interests of the residents, especially in comparison with the infringement of non-residents’ rights (that is, the needs or wishes of temporary visitors);

if the mandatory closures would not pass muster under section 1, whether constitutional exemptions or reading down/in would save it (for example, if there is not a “humanitarian” exception, could the court read one in or allow a constitutional exemption).

I have not considered the mandatory orders that do not actually close the border to non-essential travel, but rather have instituted other measures, such as the requirement to complete questionnaires or answer questions, and to self-isolate. These could also be vulnerable to challenge under the Charter; however, even if they were to be found to contravene a Charter guarantee, it is likely they would be saved under section 1.

Underlying a judicial assessment of the closures is the courts’ deference when it comes to public health, whether on division of powers or Charter cases. (For example, see Rand J.’s comment at p.190 of Winner v. S.M.T. (Eastern Ltd.) to which I referred last week: “[A] province cannot prevent a Canadian from entering it except conceivably, in temporary circumstances, for some local reason as, for example, public health”. As for the Charter, it is admittedly more mixed, given Chaoulli and other cases in which the Court has struck down health-related legislation.) This becomes even more significant here. The range of responses in different jurisdictions suggest there is no absolutely “right” way to deal with the pandemic and the Court is not in a better position, given what we do not know about the coronavirus, to substitute their assessment of how to address it for that of the provinces. Thus constitutional exemptions or reading down/in might be more appealing than striking down mandatory orders or even parts of them.

The enforcement provisions in several of the provincial and territorial orders are significant. The fines may be considerable and it is possible that contravention of self-isolation or quarantine provisions may result in a jail term. These provisions may attract section 7’s liberty interest and would require consideration of whether they are in accord with principles of fundamental justice.

Next Week: The Constitutionality of Interprovincial/Territorial Boundary Closures (Part III): Do the enforcement provisions in mandatory orders for self-isolation and other requirements contravene the Canadian Charter of Rights and Freedoms?