During the early days of the COVID-19 pandemic, Newfoundland and Labrador implemented a series of travel restrictions that effectively closed provincial borders to non-residents, except under very limited circumstances. This action led to a constitutional challenge by Kimberley Taylor. She was initially denied entry to the province to attend her mother’s burial. She was joined in the challenge by the Canadian Civil Liberties Association.
The Supreme Court of Canada has finally made a decision this past week, in a case called Taylor v. Newfoundland and Labrador. This case provides an important look at the limits of government power during a crisis. Although the travel rules have long since been repealed, the court’s majority decision serves as an important guideline for future government decisions of how our mobility rights function under the Charter.
You may be wondering why the Supreme Court heard this case at all, given that the travel ban has not been in effect for about five years now. In legal terms, the case was moot, meaning there was no longer a live dispute between the parties. However, courts still retain discretion to hear cases that are moot in order to provide important guidance and interpret rights-based issues.
In this case, the court chose to exercise its discretion to hear the appeal because the issues involved were considered to be of manifest public importance. The majority noted that because emergency measures are often temporary, they could easily evade judicial scrutiny if courts only look at active laws. Further, given the possibility of future pandemics, the court felt it was essential to provide legal guidance to the government and the public about the constitutionality of these extreme measures.
The legal debate focused on Section 6 of the Charter, which covers mobility rights. The government argued these rights were mostly about the right to move for work or change your permanent residence. However, the Supreme Court disagreed.
The majority held that Section 6 guarantees a broad right to move freely throughout Canada for any reason. It found that Section 6(1) protects a citizen’s right to remain in Canada, and that this naturally includes the right to move freely between provinces. Similarly, it held that Section 6(2) protects the right to personal travel. Because the law required state authorization for to enter or leave the province, the court found it was a clear infringement of these fundamental rights.
Despite its finding the government had violated the Charter, the court did not strike down the law.
This is because Section 1 of the Charter allows the government to place reasonable limits on our rights if they can be justified in a free and democratic society. The court used a four-part framework known as the Oakes test. First, they found that the government’s goal of protecting residents from illness and death during a global pandemic was a pressing and substantial objective. Second, they agreed there was a rational connection between the ban and this goal, as evidence showed that restricting travel helped slow the spread of the virus.
A key part of the justification was the minimal impairment stage of the test. There, the court looks at whether the government could achieve its goals in a less intrusive way. The argument was that the government could have simply required travellers to self-isolate instead of banning them. However, the majority found that self-isolation was not a perfect substitute because the government could not guarantee compliance.
The court noted the travel ban was not total; it included exemptions for essential workers and extenuating circumstances. This suggested the government had tried to tailor the rule as much as possible. The province’s unique vulnerabilities, including an older population and limited ICU beds, justified the stricter border control.
Finally, the court looked at the overall balance between the good and the bad. They concluded that the salutary effects of saving lives and preventing an overwhelmed healthcare system outweighed the deleterious effects like the temporary loss of the right to travel and the emotional distress caused to people like Ms. Taylor. After all, this was a grave emergency and so the common good may temporarily outweigh individual liberties. Consequently, while the law technically infringed on constitutional rights, it was a legal and justified response to the extraordinary crisis of the COVID-19 pandemic.
This decision provides a blueprint for how courts will evaluate future emergency measures by balancing personal freedom against public safety.
