Since early 2020, the world has been rocked by the SARS-CoV-2 virus, better known by the disease it causes, COVID-19.1 In response, governments everywhere have been implementing measures to curtail the spread of this contagious disease. Canada is no different, with both the federal and provincial/territorial governments working to control the spread of the virus.
While the measures employed by governments in response to the virus impacted many individual rights and liberties, one right that has been particularly restricted in light of border closures and other travel restrictions is that of citizens’ mobility rights. The Government of Newfoundland and Labrador, for example, took especially drastic steps by restricting travel into the province using the Public Health Protection and Promotion Act of 2018.2 This piece of legislation allows the Chief Medical Officer of Health (“CMOH”)3 to implement measures, including closing the province’s borders to travellers, during a public health emergency such as the COVID-19 pandemic.4 On May 4 and 5, 2020, two orders issued pursuant to this legislation took effect “limiting entry to residents of Newfoundland and Labrador, asymptomatic workers and those in extenuating circumstances.”5
The validity of this travel restriction was at issue in Taylor v Newfoundland and Labrador6 after the applicant, Kimberley Taylor, was denied entry into the province to attend her mother’s funeral.7 Ms. Taylor was allowed entry eight days later,8 so the issue was thus moot by the time of trial. Nonetheless, the Court proceeded to address the novel question of whether a provincial government has the jurisdiction to restrict domestic travel in such a way or if it is beyond their legislative authority.9 In the alternative, the applicant argued that the travel restriction infringed her rights to mobility and liberty, as guaranteed by ss. 6 and 7 of the Canadian Charter of Rights and Freedoms.10
II. THE DECISION
After providing an overview of the relevant provisions of PHPPA and the powers of the CMOH,11 Justice Burrage outlined the vast amount of evidence offered in support of the travel restriction and its effectiveness in reducing the spread of COVID-19.12 He then conducted a thorough division of powers inquiry, analyzing various heads of power including federal jurisdiction over quarantine,13 interprovincial undertakings,14 and citizenship.15 After concluding that the purpose of PHPPA s. 28(1)(h) “is the protection and promotion of the health of those in Newfoundland and Labrador,”16 Burrage J. found the legislative provision to be a valid measure falling under provincial authority over matters of a local and private nature or, alternatively, under provincial authority over property and civil rights.17
After finding that the legislation was intra vires the province, Burrage J. went on to address the constitutionality of the travel restriction imposed by Newfoundland and Labrador with respect to the Charter. As there was no case law dealing with a similar infringement of mobility rights,18 he conducted a novel analysis of such rights and their application to interprovincial travel.19 After determining that Ms. Taylor’s right to remain in Canada, as guaranteed by s. 6(1) of the Charter, included her right to interprovincial travel, the Court concluded that this right was infringed by the travel restriction denying her entry.20 However, Ms. Taylor’s right to liberty argument under s. 7 of the Charter failed.21 Burrage J. held that the focus of the analysis should stay on the expressed right to mobility, rather than creating a parallel right under s. 7 that “would thus give rise to a new constitutional standard for mobility.”22
The final piece of the decision determined if the infringement of Ms. Taylor’s right to mobility could be justified under s. 1 of the Charter, as the Court acknowledged that this right “is not absolute.”23 Drawing on the evidence provided by healthcare professionals, including the CMOH herself,24 Burrage J. took into account the nature of the harm,25 the particular vulnerability of Newfoundland and Labrador’s population,26 fears surrounding COVID-19,27 and the nature of Ms. Taylor’s infringed right28 when conducting the s. 1 test to justify the infringement of a Charter right. Finding the protection of the province’s population from the import of COVID-19 by travellers to be a pressing and substantial objective,29 and finding the travel restriction to be rationally connected to this objective,30 Burrage J. concluded that Ms. Taylor’s mobility rights were justifiably infringed.31 While it was argued that the provincial government had already implemented other, less intrusive means,32 Burrage J. reiterated that “[a] variety of public health measures are required in combination” to combat the spread of COVID-19 from travellers entering the province.33 Further, other measures, including self-isolation, testing, and contact tracing were stated as being not individually or collectively as effective as the imposed travel restriction.34
III. LOOKING FORWARD
Still in the midst of the COVID-19 global pandemic, nearly two years after the World Health Organization first declared “a public health emergency of international concern” on January 30, 2020,35 the exact repercussions of the Taylor decision are still unknown. The case was the first to consider the constitutionality of interprovincial border closures, with the measures found to be both within provincial jurisdiction and justified under s. 1 of the Charter.36 In doing so, Taylor supports the argument that provinces have some legislative authority to impose travel restrictions to prevent or mitigate the spread of COVID-19 and that this is not an area of exclusive federal jurisdiction over quarantine, international and interprovincial transportation, immigration, and citizenship and refugees.37
While Newfoundland and Labrador was not the only Canadian province to implement border controls limiting the entry of individuals who did not reside within the province,38 appellate level courts have yet to voice their opinion as to the validity of such restrictions, so it is unlikely that this matter is settled.39 Recently, British Columbia considered implementing similar measures to restrict interprovincial travel in an effort to reduce the spread of COVID-19, but decided against it after legal advice revealed that the province could not prevent people from entering unless it would cause harm to the health and safety of residents.40 If British Columbia had implemented travel restrictions, the province would have had to supply sufficient scientific and health data to prove that interprovincial travel posed such a risk to public health as to justify border closures, in a manner similar to that of Newfoundland and Labrador.41 This could have proven difficult. In an effort to avoid a Charter challenge similar to that in Taylor, British Columbia public health officials recommended the best course of action was instead to ensure everyone obeyed the health orders currently in place.42
While the Taylor decision is still new and, thus far, without response from appellate level courts, it has opened the door for provincial governments to implement more restrictive measures in response to the COVID-19 pandemic. It establishes a starting point for how far provincial governments can stretch their jurisdictional powers when it comes to protecting their residents. Going forward, the decision will provide guidance to other provinces looking to implement measures that may infringe on the Charter rights of their citizens and offer instruction on how to ensure that the constitutionality of such measures is upheld. Taylor will also provide a framework for how Canadian courts can go about the tricky balancing act between individual rights and public health concerns brought on by an ongoing public health emergency.
Although Taylor did leave some questions unanswered, hopefully these issues will be addressed as other instances of individual rights infringements make their way through the judicial system, especially as new public health concerns continue to emerge. As Newfoundland and Labrador’s Minister of Health and Community Services stated in the legislature when introducing the PHPPA in late 2018, “[w]e are living in a world with SARS and Ebola. You are one plane flight away from a significant public health problem.”43
* JD Candidate (Saskatchewan).
1 Tedros Adhanom Ghebreyesus, “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 - 11 March 2020” (11 March 2020), online: World Health Organization <www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020> [perma.cc/3ZEN-DZTL]. See also “Coronavirus Disease (COVID-19)” (last visited 15 October 2021), online: World Health Organization <www.who.int/health-topics/coronavirus> [perma.cc/RY2T-JSZE].
2 SNL 2018, c P-37.3 [PHPPA].
3 Ibid, ss 2(b), 9.
4 Ibid, s 28(1)(h). For the prerequisites and conditions of a public health emergency, see ibid, ss 2(y), 27.
5 Taylor v Newfoundland and Labrador, 2020 NLSC 125 at para 4,  NJ No 191 [Taylor]. In the decision, the two special measures were referred to collectively as the “travel restriction” (ibid).
7 Ibid at para 5.
8 Ibid at paras 49, 302.
9 Ibid at para 6.
10 Ibid, citing Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
11 Taylor, supra note 5 at paras 11–28.
12 Ibid at paras 55–115.
13 Ibid at paras 272–97.
14 Ibid at paras 242–60.
15 Ibid at para 258.
16 Ibid at paras 215, 241.
17 Ibid at paras 296–97. See also Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ss 92(16), 92(13), reprinted in RSC 1985, Appendix II, No 5.
18 Taylor, supra note 5 at para 303.
19 Ibid at paras 337–75.
20 Ibid at paras 301–02.
21 Ibid at para 376.
22 Ibid at para 380. See also ibid at paras 378–79 for Burrage J.’s conclusion that s. 7 was not “an amalgam of expressed rights.”
23 Ibid at para 397.
24 Ibid at paras 410–11.
26 Ibid at paras 412–13.
27 Ibid at para 414.
28 Ibid at para 415.
29 Ibid at paras 436–37.
30 Ibid at paras 441, 451.
31 Ibid at para 493.
32 Ibid at paras 439–40, 465.
33 Ibid at para 469.
34 Ibid at para 482.
35 Tedros Adhanom Ghebreyesus, “WHO Director-General’s Statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV)” (30 January 2020), online: World Health Organization <www.who.int/director-general/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-(2019-ncov)> [perma.cc/LZ8A-P6DB].
36 Taylor, supra note 5 at para 493.
37 David Robitaille, “COVID-19 in Canada: The Division of Powers over Quarantine and Borders” (2020) 41 NJCL 30 at 47, 53–54.
38 In response to the pandemic, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, Northwest Territories, and Nunavut all implemented similar measures to protect the public health of their residents (ibid at 46). See also Government of Northwest Territories, “Non-residents” (last visited 9 November 2021), online: <www.gov.nt.ca/covid-19/en/non-residents> [perma.cc/BR27-234R]; Department of Health, “Travel and Isolation” (last visited 23 October 2021), online: Government of Nunavut <gov.nu.ca/health/information/travel-and-isolation>.
39 Colin Hoult & Jay Potter, “Constructing a ‘Hard Law’ Framework to Further ‘Soft Law’ Cooperation: Inter-Delegation as a Method to Enhance Federal-Provincial Cooperation on COVID-19 Border Measures” (2021) 15:1 JPPL 31 at 55 (WL Can). The Canadian Civil Liberties Association filed an appeal to the Taylor decision on 20 October 2020: see Taylor v Her Majesty in Right of NL, 2020 01H No 0067 (notice of appeal filed 20 October 2020), online: (pdf) <ccla.org/wp-content/uploads/2021/07/Notice-of-Appeal-Taylor-et-al-v-HMQ.pdf> [perma.cc/8WWQ-J8JN].
40 Office of the Premier of British Columbia, News Release, “Premier’s Statement on Restricting Interprovincial Travel” (21 January 2021), online: BC Government News <news.gov.bc.ca/23636> [perma.cc/9Z6Q-BXKB].
41 Justine Hunter, “British Columbia Looks to Create Its Own Pandemic Bubble”, The Globe and Mail (last modified 1 February 2021), online: <www.theglobeandmail.com/canada/british-columbia/article-british-columbia-looks-to-create-its-own-pandemic-bubble> [perma.cc/YN6T-THJ4].
42 Office of the Premier of British Columbia, supra note 40.
43 Taylor, supra note 5 at para 2, citing Newfoundland and Labrador, House of Assembly Proceedings, 48-3, No 44 (20 November 2018) at 2616 (Hon John Haggie).