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The Federal Travel Requirements: Musing About Constitutional Questions

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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.

The Requirements

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

Travel

  • The Canadian government permits international travel, but does make it more difficult to leave through arrangements with the airlines and more inconvenient on return by requiring tests and staying at an approved hotel at the traveller’s own expense. Assuming that the restrictions themselves do not prevent citizens from entering (or staying or leaving) Canada, “Is it reasonable to challenge these requirements under section 6(1) of the Charter on the basis that they are so severe that they indirectly infringe the right guaranteed by that section?” Put another way, “does discouraging travel through various measures equate to prohibiting travel as contemplated by section 6(1)?”

    • 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

  • Do mandatory Covid-19 tests before being allowed to enter the country constitute an infringement of section 8’s right to be free from unreasonable search and seizure? Are the tests a search and seizure? Do they infringe the right of privacy? Do they infringe a person’s right to dignity, personal integrity and autonomy? To the extent this is an issue at all, section 8 contains an internal qualifier and raises this question even at this first stage of a Charter challenge: “what is the state’s interest in requiring the test and whether that interest warrants subjecting people who choose to travel to a test?” (On this, see the Law Times here.)
  • Assuming being in quarantine or self-isolation is a deprivation of liberty under section 7 of the Charter (with the degree of deprivation differing depending on the particular restrictions), there are two questions: “is the deprivation in the particular case minor, given the time period and circumstances involved, and therefore not a contravention?” and, perhaps more significantly, “is the deprivation of liberty in accordance with the principles of fundamental justice?”
  • Do the mandatory quarantine and self-isolation constitute an arbitrary detention? Failure to observe quarantine/self-isolation can result in imprisonment; in themselves, while quarantine and self-isolation (including and perhaps especially the three-day quarantine requirement) do constitute a physical restraint on a person’s liberty, is the detention arbitrary? Does it matter that the quarantine or self-isolation is a general requirement, unrelated to the particular circumstances of the traveller? Does it matter that persons entering Canada have notice of the quarantine or self-isolation? Are quarantines resulting from non-compliance with the requirements in a different category?

    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?

    Section 1

    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).

  • What is the purpose of the new requirement(s)? Assuming the answer is, “protecting the population from Covid-19”, is the purpose “pressing and substantial”? (See, for example, the government’s explanation of mandatory quarantine or isolation here where it explains the purpose “is to slow the spread of COVID-19 in Canada”. Like most Charter infringements, the answer will likely be “yes” during this time period. (For an argument that travel restrictions, initially justified, were no longer justified last July because Covid-19 was less serious then, see here.) Under the circumstances, even though rather general, protecting the populace from the spread of Covid-19 is likely to be considered a pressing and substantial objective, although if challenged separately, each requirement should have its own objective. (In the rare case, the court might find that the government’s stated purpose is not the purpose at all; here, for example, is the purpose merely a way of responding to the fact people who have observed the strong recommendation not to travel, even to visit ill or dying relatives, are feeling ill-done by by those have travelled just for vacations, especially politicians?)
  • Are requirements such as quarantine in a specified hotel at the cost of the traveller rationally connected to the purpose? Can the government establish a causal link between, for example, the quarantine requirement and minimizing the spread of Covid-19? Or the suspension of flights by Canadian airlines, which is at the behest of the Canadian government? Does this relate to an upswing in travel to Mexico and the Caribbean at this time of year? What is the evidence relating to travellers being responsible for Covid-19 outbreaks in Canada or more restrictive quarantine measures and the mandatory test helping to keep Covid-19 under control (here evidence of the number of people arriving with infection despite pre-flight tests might be helpful)? Are treating all countries from which travellers arrive in Canada as if they are all risky rationally connected? Or is it sufficient to maintain that all the requirements, or each of them, is rationally connected to the purpose (that is, they all are intended to limit extension of the spread of Covid-19)?
  • Do these restrictions limit the impugned rights as little as possible (do the restrictions or requirements minimally impair the right?)? Are these restrictions within a range of reasonable alternatives? Is the availability of flights by American airlines relevant here and if so, in what direction: does the fact that citizens may find ways to circumvent the government’s efforts mean that there is minimal impairment (or, indeed, that the requirements are not rationally connected to the purpose?) Why was the less minimally impairing quarantine and self-isolation requirement, allowing people to go to their own homes, not adequate? The time limits on the restrictions or requirements are important; they must be renewed and it is therefore possible to consider whether the circumstances leading to them, that would have justified them, have improved.
  • Do the benefit(s) of the requirements outweigh the detriment to the rights (is there “proportionality between the deleterious and salutary effects of the law?”)? Here, even if there are limitations on rights, are the limitations less significant (they are limited in time, for example, or even with respect to tests, they are no more than the population generally experiences where appropriate) than efforts to control or bring further under control Covid-19?

    • Comments

    1. Joe Watson
      February 3rd, 2021 at 9:56 am

      Good analysis, I have a hard time believing that the law requiring people to stay in quarantine would pass the Oakes test given that there is testing being done at both ends of an international flight.

    2. Patricia Hughes
      February 3rd, 2021 at 3:27 pm

      Fair point, Joe. There seem to have been a surprising number of people who get off flights who have Covid-19, despite the testing and airlines’ statements that they won’t allow people with Covid to fly, and they have to isolate; the government would have to show that the numbers raise sufficient concern that this mandatory three day quarantine is necessary to catch those who might not have shown being positive but have been in contact with people since their (the travellers’) pre-boarding test, people who are infected. Maybe still heavy-handed? But the other “justification” is that the government wants to discourage people travelling; they can’t actually stop them (probably) so they want to make it as difficult as possible: does that pass muster?

    3. Brian
      February 26th, 2021 at 4:46 pm

      From the material I have read all OIC and Orders must have short term effect periods…….the PC # 2021-0011 appears to expire Feb 21, 2021….(OIC 42 also expired on that same date).

      Is this correct??? Or was it replaced. (in the same manner the orders were continuously done in 2020…wow, there was alot of that)

      I located some info on Canada Gazette Part 1 Volume 155 Number 3 Orders In Council but have been unable to locate a subsequent volume or additional “currently enforced” orders

      Do you have any additional info?????? As it relates to legitimacy/ enactment of “The Minimizing….Covid-19 …(Quarantine, Isolation and Other Obligations) for the current period of enforcement

    4. Patricia Hughes
      February 27th, 2021 at 4:55 pm

      Brian, I believe you’re looking for PC Number: 2021-0075 Date: 2021-02-14. It expires on April 21, 2021 at 11:59 EDT.

      I agree it can be frustrating looking for these orders. The Canadian government website refers to an Emergency Order as if it is the current order; as you point out, it actually expired on February 21st. It’s necessary then to go hunting for the one that actually is current. I find working with the provincial OICs/regs relating to the pandemic also frustrating at times, although at least it is possible to find the regs and revoked/spent regs on the same tab as the statute (once current ones are posted).

    5. Brian
      February 28th, 2021 at 3:30 pm

      So…if the emergency orders only refer to section 58 of the Quarantine Act and the fine structure is outlined in sections 68 to 73…..are the fines/imprisonment valid??

      Section 67(1), as you mentioned, refers to fines/prison as it relates to imminent death/ bodily harm………how does the govt substantiate this claim if you pay fines upfront and go home to quarantine and in fact test negative

    6. Brian
      February 28th, 2021 at 3:36 pm

      It would appear that 2021-0075 is an ANNEXED document which I think implies that the previous emergency order is still in effect with the annexed version effectively in place and combined until April 21.

    7. Bruce Sanders
      March 8th, 2021 at 2:08 am

      The challenge with the testing on arrival is the current “screening” contravenes the Quarantine Act.
      “14 (1) Any qualified person authorized by the Minister may, to determine whether a traveller has a communicable disease or symptoms of one, use any screening technology authorized by the Minister that does not involve the entry into the traveller’s body of any instrument or other foreign body.”

      A swab test is therefore in contravention of the Act.

    8. Alexander Kholodenko
      March 20th, 2021 at 9:24 pm

      When the government has limited an individual’s right, there is an onus upon the Crown to show, on the balance of probabilities, firstly, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility; and secondly, that it is justified in a free and democratic society, which means that it must have a justifiable purpose and must be proportional.

      Forcing all international travellers to isolate even if testing negative by virtue of them having left the country, regardless if the country they left from has lower infection rates doesn’t pass the Oakes Test. Additionally “essential” workers are neither required to get tested nor quarantine. Does the virus and variants know to leave them alone?