May 28, 2020.
May 27, 2020
Hon. Tracey-Anne McPheeMinister of JusticeYukon Legislative AssemblyBox 2703Whitehorse, YukonY1A 2C6
Re: Mobility Rights and Travel to Yukon
We are writing you regarding the constitutionality and impact of the Border Control Measures (COVID-19) Order, issued under the Civil Emergency Measures Act. The effect of this Order is to largely prohibit Canadians not resident in Yukon from entering the territory, with limited exceptions. 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. 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 this kind of 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.
The Border Control Measures Order operates in conjunction with other Ministerial Orders and it is clear that many individuals not normally resident within Yukon will be permitted to enter for reasons deemed “critical” or “essential” and with varying restrictions in place on the social contact that they can have once in the territory. With respect, there is no evidence that a total ban on some individuals entering the territory can be justified when less restrictive measures could clearly achieve the same public health goals. Moreover, these harsh restrictions are in place at a time when the territory has no active cases of COVID-19 and when it’s neighbour, British Columbia, has seen a steady decline in cases. In our view, the restrictions placed on travel cannot be justified in the circumstances, and must be rescinded.
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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