Infringement on mobility rights justified? Only in Canada

The Canadian Civil Liberties Association (CCLA) has recently received what appears to be a favourable ruling from the Supreme Court of Canada. Let us dissect this decision and, most importantly, why there are no reasons to celebrate here.

During the pandemic, the Chief Medical Officer of Health for Newfoundland and Labrador took it upon himself to enact an interprovincial travel ban on citizens. This meant that there were restrictions on the movements of the citizens of this province.

This did not go well with many people, and as a result, the CCLA took the parties responsible for these restrictions to court. CCLA wanted to prove whether these restrictions infringed on the mobility rights of the citizens.

It is important to realize that when a matter reaches the Supreme Court, which is the highest court in the land, smaller courts have most likely refused to hear the case, or did not rule in the complainant’s favour; that said, the Supreme Court ruled 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 circumstances.

This is where I feel that my intelligence has been insulted. No matter how I try to understand this, it just is not making sense. How do you infringe on someone’s rights and, in the same breath, be justified in so doing? What message is the Supreme Court of Canada sending to those in the Canadian government who, as we have seen over the past six years, have enjoyed trampling on our rights as citizens?

This is when I decided to speak with Anaïs Bussières McNicoll, director of CCLA’s Fundamental Freedoms program. I asked McNicol what this ruling means for Canadians.

“We believe that this is a weighty decision for mobility rights and government accountability coming from the Supreme Court of Canada. We know that the pandemic was the first time in Canadian history that the Canadian borders became barriers to the free movement of people,” McNicol said.

McNicol spoke of the touching case concerning Miss Kimberly Taylor, who was residing in Nova Scotia at the time and refused entry to Newfoundland and Labrador to visit and grieve with family members at her mother’s funeral. Even though Taylor was granted access later; the damage was done. This sparked outrage and prompted the CCLA to act.

McNicol said her organization had a partial victory initially in Newfoundland and Labrador, which they appealed, but it was told that the pandemic was over; travel restriction was waived, and so the court of appeal declined to rule on the issue. That is how this case arrived at the doorstep of the Supreme Court of Canada.

“The highest court in the land clarified that the court of appeal should have decided and ruled on this issue even though it was moved and went on to issue the judgment on the merits of the appeal,” McNicol said.

Howard Sapers, CCLA’s Executive Director, weighed in by saying, “A public health crisis is not a blank check that allows the government to ignore Charter rights. Times of crisis are precisely when 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.”

As I mentioned earlier in this piece, this ruling by Canada’s Supreme Court speaks from both sides of the mouth, and at best, it is deceptive.  I also wished that CCLA would have made it possible for me not only to speak with Miss McNicol, for which I am thankful, but also with Mr. Howard Sapers, CCLA’s Executive Director, too.