May 16, 2020.
Friday, 15 May 2020
Hon. Bloyce ThompsonMinister of Justice and Public SafetyGovernment of Prince Edward Island4th Floor South, Shaw Building95 Rochford StreetPO Box 2000Charlottetown, PE CIA 7N8
Re: Mobility Rights and Travel to P.E.I.
We are writing you regarding the Ministerial Order you issued on April 30th, 2020 which prohibits all “non-essential” travel into the province of Prince Edward Island. The effect of this order is to prohibit residents of one province to enter another. Its very purpose is to violate the mobility rights of Canadians not resident in PEI, contrary to section 6 of the Charter of Rights and Freedoms. As the superintendent of the rule of law in the province, you will have reviewed that order to determine its constitutional risks. In brief, 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. 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 province’s restrictions on non-essential travel is neither.
The most recent order from PEI’s Chief Medical Officer of Health (dated May 8, 2020) requires individuals entering the province to answer any questions posed including questions related to symptoms, contact information and reason for entering the province. In addition, all individuals entering the province after March 21, 2020 are required to self-isolate for the length of their stay (if less than 14 days), subject to limited exceptions. On top of that, there exists the aforementioned April 30, 2020 order prohibiting all ‘non-essential’ travel into PEI. The layering of these restrictions themselves belie their constitutional sufficiency. If there is evidence that one is justified, then it follows that the other is disproportionate.
It is unclear why the self-isolation requirement would be considered insufficient to manage the public health risk posed by the COVID-19 pandemic; or, why the “non essential” travel to PEI for non-residents is insufficient without the March and May orders, or vice versa. Finally, your Province is piling up the restrictions at a time when the curve is flattening nationally and globablly, while your own Province, mercifully, has, at this writing, zero active cases. Put another way, absent evidence that one or more of these restrictions is ineffective, the more restrictive measure is unconstitutional, because it is neither necessary nor proportionate. The end result is that Canadians’ mobility rights are being whip-sawed by your emergency management orders.
We do not suggest that there is a one-size-fits-all solution to emergency management in Canada. It goes without saying that your province has particular considerations unique to Prince Edward Island. 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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