Some Canadian provinces, including B.C., have enacted travel restrictions amid fears of covid-19.
In January, 2021, after seeking legal advice, B.C. premier John Horgan stated that 害羞草研究所渨e can害羞草研究所檛 prevent people from travelling to British Columbia. We can impose restrictions on people travelling for non-essential purposes.害羞草研究所�
In 2020, in the Newfoundland Supreme Court considered covid-19 related interprovincial travel restrictions.
In 2018, the province of Newfoundland and Labrador enacted the
S. 28(1)(h) of the PHPPA specifically authorized the provincial Chief Medical Officer of Health (害羞草研究所淐MOH害羞草研究所�) to 害羞草研究所渕ake orders restricting travel to or from the province or an area within the province.害羞草研究所�
On May 4-5, 2020, in an effort to curtail the spread of COVID-19, the CMOH issued two orders under s. 28(1)(h). The orders were designed to prevent non-essential travelers from entering the province.
Kimberley Taylor, a Canadian citizen, was born and raised in Newfoundland. She lived in Nova Scotia with her spouse and children.
On May 6, 2020, her mother died suddenly in Newfoundland.
On May 6, 2020 Ms. Taylor requested an exemption from the travel restrictions, to attend her mother害羞草研究所檚 funeral.
She stated that she needed to grieve with her family.
On May 8, 2020, her request to enter the province was denied. No meaningful reasons were given.
On May 16, 2020, after Ms. Taylor requested a reconsideration, an exemption was granted, permitting her to enter the province.
Ms. Taylor challenged s. 28(1)(h) of the PHPPA as being a matter of federal, not provincial, jurisdiction.
She also challenged the decision denying her entry for 8 days on the basis that it infringed her rights to mobility protected by s. 6, and her right to liberty protected by s. 7, of the
Section 6(1) of the Charter guarantees Canadian citizens the right to 害羞草研究所渆nter, remain in and leave Canada.害羞草研究所� Section 6(2) guarantees the right of citizens and permanent residents to 害羞草研究所渕ove and take up residence in any province害羞草研究所� and to 害羞草研究所減ursue the gaining of a livelihood in any province.害羞草研究所�
Section 7 guarantees 害羞草研究所渆veryone害羞草研究所� with the 害羞草研究所渞ight to life, liberty and security of the person害羞草研究所� and 害羞草研究所渘ot to be deprived thereof except in accordance with the principles of fundamental justice.害羞草研究所�
Section 6 of the Charter is not subject to the 害羞草研究所渘otwithstanding clause害羞草研究所� in s. 33 of the Charter.
This clause allows a government to declare that a law continues to operate, 害羞草研究所渘otwithstanding害羞草研究所� that it unjustifiably infringes s. 2 or 7-15 Charter rights.
The court in Taylor found that the pith and substance of the provision was to protect and promote health of those in the province. It was of a local and private nature or property and civil rights matter.
So, it was within province害羞草研究所檚 constitutional jurisdiction.
With respect to the Charter, the court found that Ms. Taylor害羞草研究所檚 specific case engaged only s. 6, not s. 7.
The court found that the right to 害羞草研究所渞emain in害羞草研究所� Canada surely included 害羞草研究所渢he right to wander freely from room to room.害羞草研究所�
It accepted that her s. 6(1) right to remain in Canada was infringed by briefly being denied entry to the province.
It then considered s. 1 of the Charter.
Section 1 guarantees that the rights and freedoms protected by the Charter will only be subject to 害羞草研究所渟uch reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.害羞草研究所�
To justify an infringement under s. 1, the party seeking to uphold the provision 害羞草研究所� here, the state 害羞草研究所� had to demonstrate that two requirements were met:
- the objective designed to be served by the limitation on the Charter right is of sufficient importance to warrant overriding the right; and
- the means chosen to limit the right are reasonable and demonstrably justified.
This second requirement involves proportionality. The interests of society must be balanced with those of individuals and groups. At this stage, the state must demonstrate three components:
- the means adopted must be rationally connected to the objective.
- the means chosen must impair as little as possible the right in question, and
- the effects of the measure chosen are proportionate to the objective害羞草研究所攖he more severe the harmful effects, the more important must be the objective.
To justify the travel restrictions under section 1, the state offered evidence from Dr. Rahman, an epidemiologist. He proffered predictive analytics modelling which simulated the effects of the travel restrictions.
The court observed that:
no evidence has been adduced to counter this conclusion, nor to impugn the methodology of Dr. Rahman and the predicative analytics group.
The court found that the travel restrictions had the pressing and substantial objective of protecting those in the province from COVID-19 being brought in by travellers.
Based on the statistical modelling, it found that the travel restrictions were rationally connected to the objective and were minimally impairing. The 害羞草研究所渃ourts do not have the specialized expertise to second guess the decisions of public health officials.害羞草研究所�
The court found that in the circumstances of this case, 害羞草研究所渢he collective benefit to the population as a whole must prevail害羞草研究所� and the 害羞草研究所渞ight to mobility must give way to the common good.害羞草研究所�
So, the court upheld travel restrictions in this case as justified under s. 1.
It dismissed Ms. Taylor害羞草研究所檚 challenge.
The decision is
A variety of avenues to legally challenge the travel restrictions were not pursued in this case.
In an article entitled lawyer Edward Conway discusses the model used by public health theorists use to estimate the impact of COVID-19:
- There is a lot of math, always a selling point when you害羞草研究所檙e in the business of telling ordinary people how enormous and dangerous the trivial risk is. Who can confront these public health theorists with their mathematical models, the use of which results in the destruction of civil liberty?
- The SEIRS model is all the rage among 害羞草研究所榩ublic health害羞草研究所� types. It was the SEIRS model that estimated millions and millions of deaths than didn害羞草研究所檛 happen. As Joe Biden would say, 害羞草研究所榩robably 200 million people will die before I finish this talk害羞草研究所�.
It was the SEIRS model that convinced Burrage J. in Taylor v. Newfoundland and Labrador to revolutionize the constitution 害羞草研究所� What is this all-powerful tool that has superior court judges bending the knee?
害羞草研究所� 害羞草研究所榩ublic heath害羞草研究所� theorists have successful[ly] estimated all 200 million of the 200,000 actual deaths that have taken place in the United States. I hope you get my point.
While the Taylor decision is of interest, any challenge to travel restrictions will be fact specific.
Different facts, and different avenues of challenge, may well yield a different result.
How rigorous should courts be in scrutinizing such evidence, particularly when it infringes on civil liberties?
About Susan Kootnekoff:
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.
Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people害羞草研究所檚 lives, including employment law.
She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.
Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada害羞草研究所檚 oil sands industry, took hold. In 2013,
Susan moved to the Okanagan with her family, where she currently resides.
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