Are COVID-19 Travel Bans Necessary or Cruel? Maybe Both.

Updated: Mar 29

Policy Brief by Claire Borgaonkar.

Introduction


For much of the COVID-19 pandemic, Newfoundland and Labrador has been the envy of other Canadian provinces. When the virus was first detected in the province back in March of 2020, the provincial government took swift and decisive action to limit the spread. It’s paid off in a big way – to date, NL has only reported 4 COVID-19-related deaths [1] and was even in a stable enough position to allow private gatherings of up to 20 people over the Christmas holidays [2].


But all this success has come at a price, a price that some argue is too steep. The province possesses some of the most stringent interprovincial border controls in the whole country, with current restrictions including both a mandatory 14-day self isolation period for incoming travellers and a ban on non-essential travel by non-residents [3]. In June of 2020, a class-action lawsuit was filed against the province challenging the legitimacy of its tough travel policies, which the plaintiffs claim infringe upon personal liberties entrenched in the Charter of Rights and Freedoms [4]. The situation begs an important and intriguing question: how far is too far when it comes to limiting personal liberties during a prolonged national emergency?


NL’s COVID-era travel policy and legal challenge


Since March 2020, all incoming travellers to NL (both domestic and international) have had to self isolate for 14 days upon arrival, as per the Public Health Protection and Promotion Act [5]. Several other Canadian provinces have enacted similar isolation measures over the course of the pandemic, including the other Atlantic provinces, the three territories, and Manitoba [6]. But unlike these jurisdictions, NL also enacted a full ban on all non-essential travel into the province, with exceptions made only for permanent residents, essential workers, and those who obtain an exemption from the province’s Chief Medical Office [7]r. This means that all incoming travellers must be able to provide proof of residency, work status, or special permission in order to gain entry [8].


While this policy was designed to prevent people from visiting the province casually, it has come under fire for being too restrictive in compassionate circumstances. In June of 2020, Halifax resident Kim Taylor sued the government of Newfoundland and Labrador for infringement of Charter rights after the province initially denied her entry to attend her mother’s funeral in early May [9]. In tandem with the Canadian Civil Liberties Association (who was granted intervener status in the case) [10], Taylor claimed that the province violated her right to free mobility within Canada as guaranteed under section 6(2) of the Charter of Rights and Freedoms [11].


After a week-long trial in the Supreme Court of Newfoundland and Labrador, the court agreed that Taylor’s mobility rights had indeed been infringed [12]. However, it ultimately concluded that the infringement was justified given the severity of the COVID 19 pandemic within the country [13]. Such a justification is permissible under Section 1 of the Charter which gives federal, provincial, and territorial governments temporary authority to limit certain Charter rights in extenuating circumstances [14].


Freedom of movement or freedom from COVID?


Neither Taylor nor the Canadian Civil Liberties Association were satisfied with the ruling, and in mid-October they announced that they would be appealing the Supreme Court’s decision [15]. This initial ruling, nevertheless, presents an interesting debate regarding the restriction of Constitutionally-guaranteed rights during a crisis situation. Depending on the final outcome, this case may have significant implications for the future use of travel bans as a disease containment policy within Canada.


On the one hand, Charter rights still hold weight during a crisis situation. While those rights are not absolute, advocates argue that any limits placed upon them should be demonstrably justified. In reference to the case at hand, the Canadian Civil Liberties Association noted that the 14-day isolation requirement enacted by NL in March had been very effective in keeping the virus out of the province on its own before the travel band came into effect in May [16]. This success therefore puts the necessity of a travel ban – and a limitation on Charter rights – into question.


On the other hand, even with a lack of clear evidence, some individuals agree that it might be better to be safe than sorry. Canadians seem to be becoming more receptive to the idea of introducing interprovincial travel bans to slow the spread of COVID-19. A recent online survey by Research Co. shows that 80 percent of respondents agree with implementing restrictions on non-essential travel between provinces [17]. This would suggest that many Canadians would be willing to temporarily forgo their Charter rights in favour of lower COVID-19 case counts.


As the second wave continues to surge across much of mainland Canada and emerging variants pose a potential new danger, provinces may soon start looking at more aggressive options like travel bans to limit the spread. With public opinion starting to shift favourably towards such measures, it is certainly not out of the question. If this does indeed occur, the ruling by Newfoundland and Labrador’s Supreme Court, and the broad issue of Charter freedoms vs. pandemic restrictions, will no doubt become a prominent discussion across the country.

  1. Pandemic Update – Current Status”, Government of Newfoundland and Labrador, https://covid-19- newfoundland-and-labrador-gnl.hub.arcgis.com/

  2. Holiday Events and Gatherings”, Government of Newfoundland and Labrador, https://www.gov.nl.ca/covid-19/individuals-and-households/holiday-events-and-gatherings/

  3. For Travellers”, Government of Newfoundland and Labrador, https://www.gov.nl.ca/covid 19/individuals-and-households/travel-advice-2/

  4. The Canadian Press, “Newfoundland and Labrador Supreme Court upholds province’s COVID-19 travel ban”, The Globe and Mail, 17 September 2020, https://www.theglobeandmail.com/canada/article newfoundland-and-labrador-supreme-court-upholds-provinces-covid-1-2/

  5. “Public Health Orders”, Government of Newfoundland and Labrador, https://www.gov.nl.ca/covid 19/alert-system/public-health-orders/

  6. Travel Restrictions in Canada: Provincial and Territorial”, Government of Canada, https://travel.gc.ca/travel-covid/travel-restrictions/provinces#travelling

  7. “NL Life with COVID-19”, Newfoundland and Labrador, accessed 31 January 2021, https://www.gov.nl.ca/covid-19/individuals-and-households/travel-advice2/#travelrestrictions

  8. For Travellers” Government of Newfoundland and Labrador, https://www.gov.nl.ca/covid 19/individuals-and-households/travel-advice-2/

  9. The Canadian Press, “Newfoundland and Labrador Supreme Court upholds province’s COVID-19 travel ban”, The Globe and Mail, 17 September 2020, https://www.theglobeandmail.com/canada/article newfoundland-and-labrador-supreme-court-upholds-provinces-covid-1-2/

  10. Ibid.

  11. Department of Justice, “Constitution Act, 1982”, Government of Canada, https://laws lois.justice.gc.ca/eng/const/page-15.html#h-38

  12. Taylor v. Newfoundland and Labrador, Section 302, https://www.canlii.org/en/nl/nlsc/doc/2020/2020nlsc125/2020nlsc125.html

  13. Ibid., Section 493.

  14. “Section 1 – Reasonable limits”, Department of Justice, https://www.justice.gc.ca/eng/csj-sjc/rfc dlc/ccrf-ccdl/check/art1.html

  15. Stephanie Tobin, “N.L.’s COVID-19 travel ban decision to be appealed, Canadian Civil Liberties Association says”, CBC Newfoundland and Labrador, 19 October 2020, https://www.cbc.ca/news/canada/newfoundland-labrador/travel-ban-appeal-decision-1.5767641

  16. Linda Pannozzo, “Why did the Canadian Civil Liberties Association challenge Newfoundland and Labrador’s travel ban?”, Halifax Examiner, 18 September 2020, https://www.halifaxexaminer.ca/featured/why-did-the-canadian-civil-liberties-association-challenge newfoundland-labradors-travel-ban/

  17. Claire Fenton, “Majority of Canadians call for inter-provincial travel ban: survey”, Global News, 25 January 2021, https://globalnews.ca/news/7598069/majority-of-canadians-agree-inter-provincial-travel ban-survey/