COVID and the Constitution: Breaking Down Canada’s First Pandemic Charter Challenge

by | Jul 17, 2020

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About Caitlin Salvino

Caitlin Salvino (she/her) is a current PhD (Law) candidate at the University of Oxford where she studies as a Rhodes Scholar. Prior to this she completed an MPhil in Law at the University of Oxford and a BA in Human Rights and Transnational Law at Carleton University.

Citations


Caitlin Salvino, “COVID and the Constitution: Breaking Down Canada’s First Pandemic Charter Challenge”, (OxHRH Blog, July 2020), <https://ohrh.law.ox.ac.uk/covid-and-the-constitution-breaking-down-canadas-first-pandemic-charter-challenge/>, [Date of access].

On May 5th Newfoundland and Labrador (NL) adopted the strictest pandemic border restrictions in Canada. Through Bill 38, all non-residents were barred entrance into the province. The law included exceptions for asymptomatic workers and created an exemption application system. Two weeks later, the Canadian Civil Liberties Association (CCLA) declared that they would be launching a constitutional challenge. Recognising the complexities of the case, I’ve sought to write a constitutional analysis breaking down key legal issues.

The Jurisdictional Grey Area

The first issue is whether NL has the authority to pass Bill 38. Per the Constitution Act, 1867, Bill 38 falls into a somewhat jurisdictional grey area. Although the provinces have jurisdictional authority over the administration of healthcare, the federal government has the exclusive authority over “quarantine responses”.

What further complicates this issue is the collaborative approach of the federal government towards “quarantine responses”. Most telling is the creation of a joint guidance document, agreed upon by the federal, provincial and territorial governments, where each region will “take different steps at different times in order to ease restrictions, reflecting the specific circumstances in each jurisdiction.”

Taking this collaborative approach into account, along with the fact federal quarantine powers have never been tested at the Supreme Court of Canada (SCC) – the authority of NL to pass Bill 38 is far from clear-cut.

Charter Rights Violations

After a jurisdictional analysis, the court would then shift to an evaluation of whether Bill 38 conflicts with the Canadian Charter of Rights and Freedoms (Charter). At first glance, it appears Bill 38 violates section 6 of the Charter – the rights to mobility. Section 6 is clear, every Canadian citizen and permanent resident has the right to “move to and take up residence in any province”. By barring entrance into NL for non-residents, it is seemingly apparent that Bill 38 infringes upon this right.

The CCLA has also argued Bill 38 infringes sections 8 and 9 of the Charter by granting additional police powers to facilitate the removal of non-residents from NL and allow authorities to enter premises without a warrant. The government of NL has denied this and sought to clarify that Bill 38 does not give police additional powers to enter homes without a warrant.

Justified Violations in an Unprecedented Era

Charter rights, however, are not unlimited. The Charter is structured so that all individual constitutional rights can be subject to legislative restrictions. Although the application of the reasonable limits clause (section 1) is too complex for this short piece, I will provide a few relevant factors in this balancing analysis.

First, the SCC has commented on the possible Charter implications of a pandemic. In a 2001 case, the SCC foresaw a possible case where fundamental rights may be limited in exceptional circumstances that included “natural disasters, the outbreak of war, epidemics and the like”. The constitutional challenge brought forward by the CCLA will be the first major test of rights limitations in a pandemic scenario in Canada.

Second, the creation of an exemption application by the NL government will be relevant to the courts. In the instance of a government seeking to justify rights infringements, governments must prove that they took all reasonable steps to “minimally impair” Charter rights. The creation of an exemption system will be an important factor in the “minimal impairment” evaluation.

Third, this case is being brought on behalf of Kim Taylor from Nova Scotia, who was denied entry into NL to attend her mother’s funeral. This is particularly relevant because, in the early stages of the pandemic, NL had a major outbreak that originated from a funeral. Labelled the “Caul’s Cluster”, with at least 167 confirmed cases out of the province’s current total of 261, it could be put forward as a “reasonable” justification for Bill 38.

Immunising the Law with the Notwithstanding Clause

One final note should be made regarding the applicability of the notwithstanding clause to Bill 38. Briefly, the notwithstanding clause refers to section 33 of the Charter that permits governments to “immunise” legislation from certain Charter rights for up to 5 years. In the context of Bill 38, the notwithstanding clause would have limited applicability. It can only be applied to sections 2 and 7 to 15 of the Charter. Thus, it could not be applied to limit mobility rights under section 6 but could be applied to limit legal rights under section 8 and 9 of the Charter.

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