Mobility Rights: CCLA Files Appellant’s Factum Before the Supreme Court of Canada in Constitutional Challenge of Interprovincial Travel Restrictions

On July 22, 2024, CCLA and Ms. Kimberley Taylor filed before the Supreme Court of Canada (SCC) their appellants’ factum in the constitutional challenge of the travel restriction imposed by the government of Newfoundland and Labrador (NL) during the COVID-19 pandemic. Our position is that interprovincial travel restrictions infringe on the mobility rights of people residing in Canada. These mobility rights are protected by s. 6 of the Charter. They should not be limited in a free and democratic society, unless specific limits are necessary, proportionate, and as minimal as possible.  

Back in May 2020, in response to the COVID-19 pandemic, NL’s Chief Medical Officer of Health prohibited all individuals from entering the province, except for residents of NL, asymptomatic workers, and individuals permitted entry in extenuating circumstances. Taylor, a Canadian citizen residing in Nova Scotia, was denied an exemption to enter NL to attend her mother’s funeral. A week later, after submitting a reconsideration request, she was finally granted an exemption. No reasons were provided to her in either instance.  

CCLA and Taylor challenged the constitutionality of NL’s travel restriction. In September 2020, the trial court found that the travel restriction did violate s. 6, but that this violation was justified under a s. 1 analysis. We took the case to NL’s Court of Appeal. In August 2023, the Court of Appeal refused to settle the merits of the appeal, finding that the issue was moot as the travel restriction had been lifted and the COVID-19 pandemic was now over. On April 25, 2024, the SCC granted CCLA and Taylor leave to appeal this case. 

In our factum, we argue that even though the travel restriction has been lifted, the merits of the appeal should still be decided by the SCC because of the tremendous importance of the constitutional issues raised and the dearth of jurisprudence addressing them. Whether s. 6(2) of the Charter does protect the right of Canadian residents to travel freely across provincial borders, and what limitations may reasonably be imposed on this right under s. 1, are issues that are sorely in need of clarification. SCC’s involvement is all the more important in light of the near-inevitability of a future emergency – be it public health, climate change, or even war – and the need for governments of all levels to plan for this eventuality in accordance with the Charter. 

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

CCLA and Taylor’s appellants’ factum can be read here.