May 26, 2020.
May 25, 2020
Hon. Jeannie EhaloakMinister of JusticeGovernment of NunavutPO Box 1000 Station 200Iqualuit, Nunavut X0A 0H0
Re: Mobility Rights and Travel to Nunavut
We are writing you regarding the Chief Public Health Officer’s Travel Restriction Order #3, dated April 26, 2020. As you know, the effect of this Order is to prohibit travel into Nunavut by non-residents, subject to certain exceptions. The Order also puts in place stringent requirements for residents returning to Nunavut – mandating self-isolation for a minimum fourteen-day period at a place designated by the Chief Public Health Officer outside of the territory. In our view, the Order is contrary to section 6 of the Canadian Charter of Rights and Freedoms and may also be beyond the territory’s jurisdiction. As the superintendent of the rule of law in the territory, you will have reviewed that order to determine its constitutional risks. We are encouraging a second look at this Order, in light of the following.
Regarding mobility rights, pursuant to section 6(2) of the Charter, individuals may take up residence in any province and have the right to earn a livelihood in any province. Pursuant to s. 30 of the Charter, this right similarly applies to Yukon and the Northwest Territories, and a purposive interpretation would indicate that it is similarly applicable in Nunavut. The mobility rights of Canadians are sacrosanct; not even the notwithstanding clause in the Constitution Act, 1982 can oust their application. The only derogations from section 6 that are permitted are those that can be justified pursuant to section 1 of the Charter, namely those that are both reasonable, and demonstrably justified. In our view, the territory’s current restriction on travel is neither.
We also have concerns about whether your Order is ultra vires. Allowing one province or territory to dictate mobility rights does not appear consistent with the division of powers in the Constitution Act, 1867. Further, the Order’s requirement that residents self-isolate outside of the territory may well impinge on the federal government’s quarantine power under s. 91(11).
The current Order purports to require a period of mandatory self-isolation for residents entering the territory. It is unclear why this type of restriction is insufficient to address concerns associated with non-residents entering the territory. The layering of these restrictions belies their constitutional sufficiency. If there is evidence that one is justified, then it follows that the other is disproportionate. Moreover, Nunavut is in the fortunate position of having not a single confirmed case of COVID-19. While we appreciate the risk that the virus poses, the territory’s current circumstances simply cannot justify such stringent restrictions on travel.
We do not suggest that there is a one-size-fits-all solution to emergency management in Canada. It goes without saying that the territories face unique circumstances and challenges and your approach must be suitably tailored. Each province and territory has adopted an emergency management approach that fits the particular public health and distinctive circumstances of the region. But all must do so within the confines of the Constitution.
The CCLA is an independent, non-profit NGO, standing up to power and defending freedom in Canada since 1964. We have appeared in courts across Canada hundreds of times, and have commenced litigation against governments during COVID-19 in other jurisdictions: https://ccla.org/coronavirus/. We would be grateful for the opportunity to discuss all this with yourself or your officials, and would appreciate your attention to this important matter.
Michael BryantExecutive Director
Cara ZwibelFundamental Freedoms Program Director
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