The forthcoming travel requirements issued by Transport Canada have raised some ire in certain quarters, primarily among those who desire to travel for vacations or to spend time at winter homes during the pandemic and now must face an increased cost. The travel requirements do not prohibit international travel; rather, they make it difficult and come with additional cost. What are the constitutional implications of these regulations?
The federal government announced on January 29, 2021 that with the agreement of major Canadian airlines, flights to and from Mexico and the Caribbean have been suspended as of January 31, 2021, until April 30th. This affects people who had already booked flights and arranged trips, as well as vacationers currently in these locations. (As far as the latter are concerned, arrangements are being made to ensure they can return to Canada.) Other new regulations come into effect on February 3, 2021. (For the announcement of the new restrictions, see the government’s news release here.) (As of writing, the news release provides all the information available from the government of Canada.)
These new restrictions apply to all travellers, including Canadian citizens. Citizens’ “right to enter, remain in and leave Canada” is guaranteed by section 6(1)of the Canadian Charter of Rights and Freedoms. Here I consider the new rules, to the extent they are available, comparing them in part to existing restrictions, specifically in relation to travel, Covid-19 testing and self-isolation and quarantine.
Information for travellers on Canadian government websites, requirements under the Quarantine Act and particularly the orders in council restricting travel is detailed. I do not intend to rehearse all the details, but merely to give an overview of some of the restrictions and requirements for the purpose of highlighting changes through the new restrictions.
Despite the federal and provincial governments’ strong recommendations not to travel for vacations outside Canada, people have been travelling. In some cases, people have travelled to Florida in order to get vaccinated ahead of when they might be vaccinated in Canada (see CTV news here). (Florida has now restricted access to people who can show proof of residency or semi-residency in Florida, which would, presumably, capture “snowbirds” rather than the occasional visitor or someone travelling solely to get a vaccination.) There have also been numerous cases of politicians travelling to sun destinations, in spite of their own governments’ discouragement of travel, as well as of others in prominent administrative positions, with some losing cabinet positions or other jobs. (For an overall review, see Politico here.)
The first set of requirements relate to travel itself.
I mentioned above that major Canadian airlines have agreed to suspend their flights to “sun destinations” (Mexico and the Caribbean). Two caveats to note here: first, people are able to take flights to other countries that allow people to enter for vacations or, in the case of the United States especially, to US destinations, such as Florida; second, and more specifically related, it is possible to book a flight on an American airline to Mexico and the Caribbean.
Making it difficult to fly to certain locations that are attractive to Canadians during the winter by limiting air travel continues and strengthens the federal government’s approach. Canadians will be able to travel if they want to figure out how to do so.
The federal government treats Canadian citizens (and permanent residents and people with status under the Indian Act) differently from “foreign nationals” who are prohibited from entering Canada for discretionary reasons from any country other than the United States under section 2 of PC Number: 2021-0010 (expiring February 21, 2021), although there is a lengthy list of exceptions under section 3. Even if they satisfy an exemption, however, a foreign national is not allowed entry if they show symptoms of Covid-19, suspect they have Covid-19 or have Covid-19 (s. 3(2)) or if they cannot comply with quarantine requirements (s.3(3)). For foreign nationals entering from the United States, see PC Number: 2021-0009, dated January 20, 2021 (also expiring February 21st). (I note that the land border between the Canada and the United States is currently closed for non-essential travel; only people who satisfy exemptions are allowed to cross.)
Up to now, some commercial flights have been restricted to landing in Canada at one of four airports: Montréal-Trudeau International Airport, Toronto Pearson International Airport, Calgary International Airport and Vancouver International Airport. However, under the new requirements, “scheduled commercial passenger flights arriving from the United States, Mexico, Central America, the Caribbean and South America, which were exempted from the previous restriction,” will be required to land only at these airports, as will private/business and charter flights from all countries.
There are also requirements relating to Covid-19 testing and self-isolation/quarantine. Most of these continue existing requirements; however, there will be strengthened rules around quarantining itself and increased enforcement.
The new requirement that has probably created the most fuss is that all air travellers “must reserve a room in a Government of Canada-approved hotel for three nights at their own cost” (estimated to be about $2,000) and “take a COVID-19 molecular test on arrival at their own cost” (the cost varies, but might be about $160, for example). Up to now, people have been allowed to quarantine in their own location, unless they do not have an adequate plan for quarantining and then they are housed in a federal location. The new three day initial quarantine allows for the test and the result. Land entrants must also take a test 72 hours prior to arriving in Canada. Travellers will still be required to satisfy the 14 day quarantine and persons with positive tests must continue to self-isolate, according to government requirements currently in place.
Currently, there are requirements applicable to all travellers related to testing for Covid-19 before boarding a flight to Canada; it is necessary to show proof of the test. There are also requirements related to being exposed to someone who shows symptoms of Covid-19 and if a traveller tests positive within 14 days of entering Canada. There are, however, exemptions, including, for example, emergency providers who return to Canada after serving elsewhere and who is required to provide their services in Canada within 14 days of having entered Canada. (For these restrictions, see here or here, as well as rules when someone has been on a flight on which a traveller has tested positive here.)
Enforcement has been enhanced, with employees of security firms visiting people in quarantine to check on compliance. Up to now, enforcement has generally taken the form of phone calls, unless people do not answer. According to the Canadian government, and police have made follow-up calls. According to the Transport Canada website, the Public Health Agency of Canada “currently contacts more than 6,500 travellers each day through phone calls, which verify their compliance with the mandatory isolation order” and “[a]s of January 26, 2021, 99% of the 48,682 interventions by law enforcement have resulted in compliance by travellers. However, in a minority of cases, verbal warnings, written warnings, tickets, and charges have been issued.”
Penalties for non-compliance remain the same and are severe. For example, if someone doesn’t comply with the Quarantine Act or emergency orders, they may be liable for a fine of up to $1,000, while breaking mandatory quarantine or isolation, if doing so results in the death or serious bodily harm to another person, carries a penalty of a fine of up to $1,000,000 or imprisonment of up to 3 years or both.
The federal government’s requirements obviously restrict the ability of foreign nationals to enter Canada; however, this does not raise any constitutional issues. Countries are entitled to determine who may enter or leave their territory unless they have determined otherwise (see, for example, the case of the European Union, which has free movement across borders, but which has also introduced restrictions during Covid-19: “COVID-19 and free movement in the EU: Things to consider for a workable framework” here).
Do the restrictions affecting citizens and in some cases permanent residents contravene the Canadian Charter of Rights and Freedoms, however? Section 6(1) of the Charter guarantees citizens “the right to enter, remain in and leave Canada” and section 6(2) guarantees “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.” Section 7 provides as follows: “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.” Section 8 states, “Everyone has the right to be secure against unreasonable search or seizure” and section 9 says, “Everyone has the right not to be arbitrarily detained or imprisoned.” Limitations on rights are, of course, subject to justification under section 1 of the Charter: “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.”
Stated briefly (and oversimplifying), the issues these provisions raise are the following: 1. do the travel restrictions interfere with the right to enter, stay or leave Canada? 2. do the travel restrictions affect the right to move and take up residence in a province? 3. are the requirements for quarantine and self-isolation an infringement on the right to liberty under section 7 or an arbitrary detention under section 9? and 4. do the mandatory tests infringe the right against unreasonable search and seizure? And if rights are affected, what are the considerations under section 1?
My intention here is to raise questions that are relevant to the analysis of the government’s restrictions and requirements under the Charter, but not to undertake a full analysis or provide specific answers.
Possible Constitutional Questions
As for section 6(2), “Do these restrictions (delays from quarantine) impede the right of citizens and permanent residents to move to take up residence in any province?” One might ask, “would this delay constitute more than a minor inconvenience at best?”
Mandatory Covid-19 Tests and Quarantine
In all these cases, is there a difference between those travelling for non-essential purposes — who are making a clear choice — and those travelling for other purposes acknowledged as exemptions under the requirements?
Unless a court is willing to accept that the requirements related to travel for citizens are equivalent to a denial of the right to leave or enter Canada, the requirements do not seem to constitute a limitation on the right guaranteed by section 6(1); nor are any returning citizens or permanent residents prevented from moving to any province (and taking up a livelihood there, at least by these requirements) under section 6(2). However, the quarantine restrictions might be said to be a denial of liberty or a detention (albeit perhaps not arbitrary) and the mandatory tests, especially since they apply to all travellers and not only those engaging in non-essential travel where there is a choice, might be said to be a search and seizure, albeit not unreasonable.
Let us assume, however, that the requirements do limit one or more of these Charter guarantees, what questions are relevant for the analysis under section 1? These requirements are prescribed by law. For example, they may take the form of Emergency Orders under section 62 of the federal Quarantine Act (for instance, see PC Number: 2021-0011, dated January 20, 2021).