Covid-19 and the Constitutionality of Public Health Mobility Orders
A recent decision out of the Supreme Court of Newfoundland & Labrador looked at the issue of a public health order and whether the travel ban imposed by that province on people from outside traveling in was constitutional. The action was brought by Kimberley Taylor who was prevented by the travel ban in that province from attending at her mother's funeral. Ms. Taylor was joined by the Canadian Civil Liberty Association in her position.
Among other arguments Ms. Taylor argued that the order issued by the Chief Medical Officer of Health of Newfoundland and Labrador was unconstitutional as it violated her mobility rights.
The Mobility Rights in the Charter are as follows:
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.
The court found the right to remain in Canada included the right to travel in Canada, and that the order infringed her charter right.
Section 7 of the Charter was also in issue. Section 7 reads:
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.
The Court found, in the fact situation, not being able to attend a funeral, section 7 did not come into play. Section 7 will likely be tested in further litigation regarding the public health orders themselves.
Infringements of Charter rights, however can be justified. This is set out in 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.
The Court, in its final decision decided that the limit was justified, saying at 405:
I conclude that the infringement of Ms. Taylor’s mobility right by the travel restriction wasjustified on the evidentiary record in this case, as a reasonable measure to reduce the spread of COVID-19 in Newfoundland and Labrador.
This not the final say on the matter. Courts within Alberta and across Canada will have to grapple with the issue. Ultimately the Supreme Court of Canada may decide the issue. The Tension between fundamental freedoms and public health is a difficult balance to strike. It will be interesting to see how this issue plays out.
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The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.