The Constitutionality of Interprovincial/Territorial Boundary Closures (Part I)

Efforts to respond to and get under control the coronavirus pandemic have led to government actions that many people would be unlikely to accept in less dire times. Many of these have been at the provincial and municipal levels with emergency measures that have restricted a wide range of business, social and recreational activities that we had previously taken for granted. Another set of restrictions have been in relation to whether we can visit other provinces. Some provinces closed their boundaries early in the pandemic and some are now restricting who can enter provinces as they open their business, social and recreational activities. Is the closure of provincial borders constitutional? Here I discuss the background to the closures. In Part II, I consider the application primarily of section 6 of the Canadian Charter of Rights and Freedoms and to a lesser extent, sections 2(d) and 7 of the Charter.

The vast majority of individuals have been willing to comply with the various restrictions imposed by emergency orders and with the “instructions” or “guidelines” of medical officers of health, such as maintaining physical distance of two metres or six feet. This does not mean there have not been some concerns. In the first rush of new restrictions, for example, the apparent overzealous enforcement of municipal orders relating to the closure of park facilities brought criticism (see here and here). (The Canadian Civil Liberties Association (“CCLA”) is inviting people to let them know if they” have been stopped for information, or have received tickets, charges, fines or other penalties for failing to comply with new COVID rules”.)

The CCLA and The 519 have written letters to the Prime Minister about the treatment of the homeless and attacks on queer and trans communities. As The 519 letter states,

The impact of public health measures, emergency management and enforcement strategies, and the shuttering of organizations and institutions mandated to protect the most vulnerable are not actions that impact our society equally despite government and media narratives that would lead one to believe otherwise.

A court case about how Toronto has dealt with homeless people during the COVID-19 crisis will be heard on June 8th. One issue is whether cots or mats in homeless shelters are far enough apart to satisfy physical distancing requirements.

The CCLA, with other organizations, has also filed a constitutional challenge to the way the federal government has addressed problems facing prisons as a result of the coronavirus. On another front, the CCLA has issued a booklet about the issues that can arise in relation to privacy and access to information during the pandemic.

In Alberta, the following provisions of the Public Health Act are being challenged under the constitution: those providing for retroactivity of orders made under the province’s emergency declaration (to no earlier than the date of the declaration of the emergency), for a minister to make changes to an enactment for which the minister is responsible and for the health minister to have the power to add to an enactment or to substitute for it, without consultation if in the public interest (see Public Health (Emergency Powers) Amendment Act) .

Although there are important questions about the federal, provincial and municipal responses to the coronavirus pandemic, in the scheme of things, challenges or threatened challenges have been few. Until very recently, the restrictions have been accepted as necessary and recommendations such as “stay-at-home” voluntarily followed by the vast majority of people in Canada. Essential workers and workers who cannot work remotely have been excluded from the expression “everyone is at home”. However, the status of the pandemic is beginning to change. More people will be joining those who are not staying home until eventually only older persons and those with underlying conditions will live under the semi-isolation conditions. Provinces and territories are opening businesses and recreational locations and permitting greater social interaction, some more quickly than others; Quebec is reopening schools, although most provinces and territories have closed the schools for the remainder of the school year or are extending closures (see here) (update on this CTV news report of May 4th: Ontario announced today there will be no resumption of the school year). As the openings progress, unless there is a serious outbreak requiring renewal of closures, life will begin to seem more normal and restrictions abnormal.

One response to the pandemic has been to close Canada’s and provincial and territorial borders or to establish checkpoints at the border; in some cases travellers, including returning provincial/territorial residents, are required to self-isolate for 14 days. (For a detailed review of the measures as of early April, see here.) Other provinces, such as British Columbia, chose to discourage cross-border travel, not to prohibit it. There have been exceptions for essential business travel, but no inessential travel.

Some provinces that are beginning to return to pre-pandemic levels of activity are nevertheless maintaining closed borders. In some provinces, there have been strong recommendations to limit intraprovincial travel (in Ontario, to “cottage country”, for example), while in others, there is no restriction (or discouragement) on visiting other parts of the province; in some cases, the provinces has been divided, with some parts accessible and some not (see here).

My focus is on the closure of provincial and territorial borders to non-essential travel now. For example, Prince Edward Island, New Brunswick, Yukon, the Northwest Territories and Nunavut prohibit entry for non-essential reasons. Does it matter if non-residents are able to enter, but must self-isolate for 14 days, as in Nova Scotia and Newfoundland and Labrador, since self-isolation effectively limits entry to visitors planning to remain in the province for an extended period of time. (See here.) Ontario’s premier is strongly encouraging people from outside Ontario to stay at home (also see here regarding Manitobans crossing the border to visit their cottages and cabins in Ontario).

Are the border closures or restrictions vulnerable to a successful challenge under the Charter, particularly as these provinces see a decline in COVID-19 cases?

Can the provinces/territories impose restrictions on people moving from jurisdiction to jurisdiction, in particular in the context of a pandemic? The most significant constitutional provision here is section 6 of the Canadian Charter of Rights and Freedoms:

6. (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.

Section 7 of the Charter might also be applicable: “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 7 has been interpreted to encompass many activities, despite its inclusion among the Charter’s “legal rights”. Depending on the circumstances (the desire to join others in the destination province), someone might also invoke section 2(d), the fundamental freedom of association.

We know that provinces have the power to impose restrictions on interprovincial trade, thanks to the Supreme Court of Canada decision in the “beer case”. In R. v. Comeau, the Supreme Court of Canada held that provincial restrictions on the amount of beer that someone can buy in another province and then bring into New Brunswick do not infringe section 121 of the Constitution Act, 1867. Section 121 reads as follows: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”

Section 134(b) of the New Brunswick Liquor Control Act (“LCA”) provides that the only liquor (including beer) someone in New Brunswick may have is from the New Brunswick Liquor Corporation:

134 Except as provided by this Act or the regulations, no person, within the Province, by himself, his clerk, employee, servant or agent shall
(a) attempt to purchase, or directly or indirectly or upon any pretence, or upon any device, purchase liquor, nor
(b) have or keep liquor,
not purchased from the Corporation.

Section 43 of the LCA tempers this apparently absolute prohibition against liquor or beer from another province by permitting a person to enjoy a small amount of liquor or beer purchased outside Canada or in another province or territory.

Mr. Comeau purchased liquor and beer in Quebec in excess of the permitted amounts and returned to New Brunswick where he was arrested by the RCMP and charged under the LCA. He argued that the operative provisions contravened section 121 of the Constitution Act, 1867, which he considered to be an interprovincial/territorial “free trade” provision. The trial judge acquitted Mr. Comeau and the Court of Appeal declined to grant the Crown leave to appeal. The Supreme Court described Mr. Comeau’s position as “‘admitted free’ in s. 121 means that provincial laws cannot do anything that impedes, or makes more difficult, the flow of goods across provincial borders, directly or indirectly” (Comeau, para. 49). The SCC found this interpretation would mean “federal and provincial legislative schemes of many types — environmental, health, commercial, social — may be invalid” (para. 51) and therefore rejected it, concluding,

Section 121 does not impose absolute free trade across Canada. We further conclude that s. 121 prohibits governments from levying tariffs or tariff-like measures (measures that in essence and purpose burden the passage of goods across a provincial border); but, s. 121 does not prohibit governments from adopting laws and regulatory schemes directed to other goals that have incidental effects on the passage of goods across provincial borders. (Comeau, para. 53)

An important reason why section 134 does not contravene section 121 is because it is not an outright prohibition (as a tariff would be). It is “not divorced” from the larger scheme, which is “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale, and use of alcohol within New Brunswick” (Comeau, para. 124).

Thus provinces are able to impose restrictions on goods moving from province to province. But do they have the authority to impose restrictions on people moving from province to province, in particular in the context of a pandemic?

Next Week: The Constitutionality of Interprovincial/Territorial Boundary Closures (Part II): Do the closure of provincial or territorial borders or requirements to self-isolate when crossing a provincial/territorial contravene the Canadian Charter of Rights and Freedoms?