Supreme Court upholds Newfoundland and Labrador’s COVID-era restrictions

In a mixed decision, the Supreme Court of Canada has held unanimously that Newfoundland and Labrador’s COVID-era travel restrictions were justified, even though they violated Charter mobility rights.

Just how those rights were violated split the court’s decision. A five-judge majority ruled that both Sections 6(1) and 6(2) of the Charter were violated by the restrictions, while three judges held that only 6(2) was violated. Another judge felt that only 6(1) was violated. In all cases, those restrictions were upheld by Section 1 of the Charter as “reasonably justified” in a free and democratic society.

Section 6 of the Charter protects Canadian citizens’ right to enter, remain in, and leave Canada. It also protects their right to live or seek work anywhere in the country. Governments can't discriminate based on the province someone used to live in or currently lives in.

Kim Taylor of Nova Scotia had challenged Newfoundland and Labrador’s travel ban after she was prohibited from travelling home to the province to attend her mother’s funeral in the spring of 2020.

"People who are grieving the loss of a loved one, such as a mother, father, sister, brother, a child, should not be subjected to this level of cruelty by a government entity," she told CBC News at the time.

‘A precedent-setting decision’

The majority decision, penned jointly by Justices Andromache Karakatsanis and Sheilah Martin, which interestingly included all five women on the Court, found that in the early days of the pandemic, growing numbers of cases and deaths, paired with a lack of concrete medical and scientific evidence, created a situation where decisions needed to be made quickly to protect lives.

“These unprecedented circumstances, factoring in the capacity of their healthcare system and high volume of vulnerable populations, entitled Newfoundland and Labrador to act as it did,” Karakatsanis and Martin wrote. 

“The travel restrictions amounted to a limitation of freedoms, and governments must exercise significant caution when engaging in such restrictions. However, Newfoundland and Labrador’s travel restrictions were a reasonable and justified measure in a free and democratic country in the COVID-19 pandemic.”

Anaïs Bussières McNicoll, director of the Canadian Civil Liberties Association’s (CCLA) Fundamental Freedoms program, says that although the outcome isn’t exactly what they hoped for when they brought the challenge, the decision is still important for how it articulates Canadians’ mobility rights.

“The Supreme Court of Canada finally confirmed that both citizens and permanent residents have the constitutional right to move freely between provinces,” she says. 

“We see this as a precedent-setting decision that codifies mobility rights.”

She appreciates that the majority decision recognizes that mobility rights are not only for economic purposes but also a human right that facilitates individual autonomy and dignity, thereby promoting national unity, sovereignty, and a common Canadian identity.

“We’re satisfied with that approach,” Bussières McNicoll says, noting that the three different sets of reasons on how mobility rights were affected confirm the CCLA’s decision to bring the case. 

“There was no clarity about the proper scope of Section 6 rights. There are definitely interpretations that different judges reached, but we are satisfied with the broad and purposive interpretation that the majority decision landed on.”

She also points to the interesting methodology related to bilingual interpretation, in which the English and French versions of the same section of the Charter are read differently, as was the case here.

Up until now, Bussières McNicoll says there was no clear Supreme Court jurisprudence on how to read the section when you could reach different conclusions in each language. While statutory interpretation principles typically err on the side of the most restrictive reading, when Charter rights are at stake, the Court confirmed that courts should err on the side of the broader interpretation.

“That’s a very meaningful precedent for many future Charter cases.”

Jason Gratl of Gratl & Company in Vancouver and a member of the CBA’s constitutional and human rights section, says although the interprovincial travel restrictions were administrative in nature, the Court declined to do a Doré administrative law analysis of whether the measures breached a constitutional right and were otherwise justified.

“The analysis of the putatively administrative actions proceeded on the same footing as a challenge to legislation with the strict Oakes test, following an assessment of the breach, rather than the Doré framework of assessing reasonableness in the context of Charter values,” he says. 

“This decision is a positive step in the advancement of a rigorous conceptual framework for constitutional breaches involving administrative action.”

As for the Section 1 analysis, Bussières McNicoll says that governments across the country argued that the precautionary principle should be included in the test to afford a high level of deference, but the Court disagreed.

“We acknowledge that Charter rights are not absolute and can be limited, and our perspective was that public health crises are not a blank cheque to allow governments to ignore Charter rights,” she says. 

“Today’s decision confirms that the precautionary principle should not be embedded into the Section 1 analysis. While context is important, it can be taken into account in a Section 1 analysis.”

In an inevitable future crisis, Bussières McNicoll says the decision clarifies the legal parameters, enabling leaders to govern effectively in accordance with the Charter. It also makes clear that deference owed to them is not infinite and will be evaluated under the usual Section 1 analysis.

Public health an integral value

Joshua Shaw, a law professor at the University of Saskatchewan, says the decision is an affirmation that there are proper limits to liberty in medical emergencies, and that we have collective responsibilities to one another. The majority was clear that public health is an integral value in a free and democratic society, and that it constitutes a pressing and substantial objective for government action.

“It’s a positive decision for those very reasons, recognizing that there are exceptional situations like a pandemic of the scale of COVID that require limitations on our liberties and freedoms,” he says. 

“It was interesting to see that affirmed, especially at a point where there is such low trust among the public in our public institutions and in those institutions involved in public health.” 

Shaw adds that in the face of a severe threat of illness and death due to a contagion, legitimate efforts to contain it were rooted in values that are important to Canadians and find their basis in the right to life, dignity, and worth of the human purpose.

He also points to something that Justice Malcolm Rowe, who is from the province, wrote in his solitary dissent, adding to the Section 1 analysis that Newfoundland’s geography as an island with limited air or sea access was key to the province’s efforts to maintain a “cordon sanitaire” that could not exist in most parts of the country.

“It’s part of the factors the majority thought about in determining if this is an appropriate limit to the rights in emphasizing that it’s something that can effectively be done,” Shaw says. 

“With Justice Rowe, it’s interesting that he wants to underline that and emphasize that other jurisdictions, in similar circumstances, may not be able to enjoy this justification to the limit.”