CCLA Granted Leave to Challenge Arbitrary Travel Restrictions Before the SCC

Arbitrary travel restrictions infringe on the mobility rights of Canadians. CCLA’s challenge of Newfoundland government’s Bill 38 will continue before the Supreme Court of Canada (SCC), so that Canadians have clear, predictable, and stable answers to fundamental questions affecting their basic mobility rights.

Back in May 2020, CCLA challenged the constitutionality of the Newfoundland government’s Bill 38 before the province’s Supreme Court. This Bill provided for a travel ban between provinces and other restrictive measures in the context of the COVID-19 pandemic. CCLA asked the Court to declare Bill 38 in violation of s. 6 (mobility rights), as well as other Charter rights. CCLA also argued that the law could not be saved by s. 1, which says that limits on rights must be reasonable and demonstrably justified.

In September of 2020, the province’s Supreme Court found that the travel ban did violate the s. 6 Charter right to mobility, but that such infringement could be justified under s. 1. CCLA pursued this case before the Newfoundland and Labrador Court of Appeal. In August of 2023, the Court of Appeal refused to settle the merits of the appeal under the motive that it was moot, since the ban had been lifted. This was done despite all the parties urging the Court of Appeal to decide the appeal on the merits.

CCLA is pleased to learn that the SCC just granted its application seeking leave to appeal in this case. This will allow the SCC to address novel questions about the scope of mobility rights in Canada and the extent to which government can limit Canadians’ rights to move freely around the country.

CCLA is grateful for the excellent pro bono work of Paul Pape, Shantona Chaudhury and Mitchell McGowan from Pape Chaudry LLP in this file.