CCLA Proud to Have Advanced Mobility Rights and Government Accountability at Supreme Court of Canada

OTTAWA — Today, the Supreme Court of Canada released its decision in the Canadian Civil Liberties Association (CCLA)’s challenge of unprecedented travel restrictions enacted during the COVID-19 pandemic.

“The pandemic was the first time in Canadian history that provincial borders became barriers to the free movement of people,” said Anaïs Bussières McNicoll, director of CCLA’s Fundamental Freedoms program. “The question of whether the Charter right to mobility protects Canadian residents’ right to travel freely across provincial borders became a matter of immediate importance to countless people in Canada”

The Court agreed with the CCLA that the interprovincial travel ban enacted by Newfoundland and Labrador infringed on mobility rights. However, the Court also found that the restrictions were justified in the particular circumstances.

“While we would have preferred a different outcome, ultimately the Supreme Court of Canada confirmed that both citizens and permanent residents have the constitutional right to move freely between provinces,” Bussières McNicoll continued.

“This precedent-setting decision clarifies that interprovincial mobility has not only an economic purpose, but is also anchored in human rights,” Bussières McNicoll added. “Section 6 of the Charter is designed to protect a broad interest in human mobility, to facilitate individual autonomy and dignity, and to promote national unity, sovereignty, and a common Canadian identity.”

“Importantly, the Court also articulated a methodology for bilingual Charter interpretation that requires courts to select the reading that better protects the right – a decision likely to affect not only this case, but future cases involving the interpretation of Charter rights,” added Bussières McNicoll.

Today’s decision marks the Supreme Court of Canada’s first in-depth examination of how the uncertainty arising from the pandemic may affect courts’ evaluations of the constitutionality of government actions.

“A public health crisis is not a ‘blank check’ that allows the government to ignore Charter rights” said Howard Sapers, CCLA’s Executive Director. “Times of crisis are precisely when the civil liberties and fundamental freedoms that define our society are at the greatest risk.”

“A future emergency — be it public health, climate change, or other — is inevitable,” Sapers added. “Today’s decision clarifies the legal parameters so officials can govern effectively — and in accordance with the Charter — during future crises.”

The CCLA is immensely grateful for the outstanding pro bono legal services of Paul J. Pape, Shantona Chaudhury, and Mitchell McGowan of Pape Chaudhury LLP. The CCLA is also deeply grateful for the pro bono assistance of Rosellen Sullivan of Sullivan Breen Defence LLP at the application level.