CCLA Writes to David Lametti and Marc Garneau: Canadians Must be Allowed to Come Home

January 6, 2021 

The Honourable Marc Garneau
The Honourable David Lametti
Government of Canada Ottawa, ON

By Email:    David.Lametti@parl.gc.ca; marc.garneau@parl.gc.ca

Dear Ministers, 

We are writing to you about the Government of Canada announcement of December 31, 2020 stating that, as of January 7, 2021, individuals flying into Canada must have proof of a negative COVID-19 test taken within 72 hours of their flight. This new “requirement” was announced by way of news release, but, to the best of our knowledge, has not been codified in a legal order or regulation – at least not one that is accessible to the public.  An imagined or secret law is not a law, to be sure.  As a result, the airline industry has been put in an impossible situation;  Canadian passengers’ rights are obviously breached, absent a law prescribing this limitation upon their Charter rights. 

It is outrageous that your government would so disrupt Canadians’ mobility guarantees, and so threaten the fundamental right of return afforded to all citizens, without any legal authority whatsoever.  Not for the first time, we are gravely concerned by the federal government’s penchant for legislating from the podium. Most significantly, there is a risk that your executive bungling will strand Canadians abroad, violating mobility rights protected by the Canadian Charter of Rights and Freedoms.   

The government’s announcement, absent a detailed regulation, has resulted in alarm amongst Canadians abroad and confusion for those in the industry charged with implementation. Leaving aside the shortcomings in the ‘plan’ to be discerned from the communication itself, there is no way to require any such changes without legal authorization.  The rule of law requires laws, without which there is chaos.   

We understand that the Minister of Transport has already been contacted by those in the airline industry requesting that implementation of the new requirement be delayed. This is the minimum step the government should take at this stage, given the significant constitutional concerns that arise, the absence of a legal instrument and the many questions about implementation of the new requirement that remain unanswered. Indeed, in our view, absent a legally binding and accessible regulation or legal order, there is a very real question as to whether the airline industry is even under any obligation to implement the new “requirement” — notwithstanding Transport Canada’s news release.  

Finally, the government should be aware of the risks that arise if and when Canadians are unable to return to the country because of this debacle. We urge you to urgently correct this legal vacuum, and to delay its implementation until an official order or regulation has been published and those charged with implementation have had sufficient time to put the necessary protocols in place. And we beseech you to cease governing by podium, and start governing by laws immediately disclosed to the public, alongside your press releases. 

Sincerely, 

Michael J. Bryant , Executive Director & General Counsel