While the coronavirus pandemic has prompted a shutdown of non-essential travel at the Canada-U.S. border, a number of provinces have also set up checkpoints at their borders to restrict traffic, raising questions about the constitutionality of such measures.
“It does depend to some extent on what it is they’re asking you to do,” said constitutional expert Wayne MacKay, professor emeritus of law at Dalhousie University.
“It does raise some constitutional questions, particularly because of Section 6 of the Canadian Charter of Rights and Freedoms, which is the mobility rights provision.”
So far, the eight provinces and territories that have set up such checkpoints and travel restrictions are:
Gatineau police have set up checkpoints on interprovincial bridges and other roadways to enforce a ban on non-essential travel into western Quebec, which includes visitors crossing into Quebec from Ontario.
Checkpoints have been set up at the Masson-Angers ferry, Alexandra Bridge, Portage Bridge, Chaudière Bridge and Champlain Bridge.
Police have also set up checkpoints to restrict access to eight regions: Bas-Saint-Laurent, Saguenay–Lac-Saint-Jean, Gaspésie–Îles-de-la-Madeleine, Abitibi-Témiscamingue, Côte-Nord, Nord-du-Québec, Nunavik and Cree territories around James Bay.
Drivers and passengers are asked about the purpose of their trip to assess whether or not it’s essential, which include travel for essential work, medical appointments or for humanitarian reasons. Otherwise, police are turning back motorists.
Nova Scotia has implemented checkpoints at every major entry point into the province, and anyone entering is stopped and questioned.
Highways, airports and ferry terminals are being monitored, with staff telling travellers to self-isolate for 14 days, no matter where they’re coming from.
“For those who are not essential service and want to enter our province for social purposes, please stay home,” Premier Stephen McNeil said in March when announcing the measures.
Some travellers are exempt from the self-isolation rules, including truckers, medical staff and other essential personnel.
Restrictions have been put in place for all travellers arriving from outside the province. All travel deemed unnecessary has been prohibited, with peace officers given authorization to turn away visitors who attempt to enter.
Travellers entering the province from Quebec, Prince Edward Island and Nova Scotia will be stopped by peace officers and required to produce identification. Contact information and intended destinations are being collected and tracked for all travellers, including those travelling through New Brunswick to another province.
Meanwhile, interprovincial travellers, like international travellers, will need to self-isolate for 14 days. There are, however, exemptions for essential workers.
In P.E.I., those travellers coming off the Confederation Bridge are being stopped and screened, as health officers ask them where they are coming from, are they from the province and do they show any symptoms of the virus.
The measures are also in place at the province’s Charlottetown Airport and the ferry terminal in Souris.
Officials direct anyone coming from out of province, including within Canada to self-isolate for 14 days. Contact information is taken from anyone exhibiting symptoms. Exemptions are being made for essential personnel, such as health-care workers, truck drivers and airline crews.
“To limit the spread of COVID-19, visitors are not allowed entry into the N.W.T.,” according to the government’s website.
Nunavut residents travelling through and who need to stay overnight must stay in their accommodations until leaving and practise self-isolation during that time. If they are sick, they must not travel into the Northwest Territories — or immediately go into self-isolation if they get sick.
Essential workers are exempted from the entry restrictions but must self-isolate for 14 days upon arrival.
Any person entering Yukon will be stopped by an enforcement officer, required to fill out an information form detailing travel plans, including details such as phone number and planned stops.
Non-residents who must transit through Yukon to Alaska or Northwest Territories or another part of Canada may do so but can only stay in Yukon for no more than 24 hours. Meanwhile, travellers into the territory, including residents, must self isolate for 14 days except for those providing critical services.
In Nunavut, travel that originated from across any interjurisdictional border is prohibited, and only residents and critical workers are permitted inside. However, returning residents must complete a 14-day self-isolation period in Ottawa, Winnipeg, Edmonton or Yellowknife. They will need a clearance letter from the respective health officer of that city that authorizes them to return to Nunavut.
The province hasn’t closed its interprovincial borders, but it has established checkpoints at the five busiest crossings — four entering from Saskatchewan and one from Ontario — to inform travellers of the risk of COVID-19.
The checkpoints alert travellers to the need to self-isolate and other pressing health information concerning the coronavirus.
Mobility rights fall under Section 6 of the charter, which state that:
- Every citizen of Canada has the right to enter, remain in and leave Canada.
- Every citizen and permanent resident of Canada has the right to move to and take up residence in any province and to pursue the gaining of a livelihood in any province.
But as constitutional scholar MacKay noted, those rights in Section 6 may or may not directly include things like travelling to visit family or for pleasure.
“It’s not specifically said, though it might be read into it for that,” he said.
Even if those actions do fall under Section 6, MacKay said that in times of crises, like this pandemic, courts would likely be fairly generous in interpreting certain restrictions as being reasonable.
“Depending on how intrusive and how limiting they may be, that could be a problem,” he said.
Stopping motorists to provide information or asking travellers to self-isolate would likely be deemed a reasonable limit in this particular situation, he said.
“If they are forbidding you to cross the border, then they’re going to need better justification to support that,” he said. “It’s the actual stopping and requiring you to turn around. That might require some pretty heavy-duty justification.”
Carissima Mathen, constitutional scholar and vice dean and professor of law at the University of Ottawa, said there’s no question that the charter protects Canadians’ right to move around within Canada. In this case, if not Section 6, then those rights could fall under the general liberty provisions of Section 7.
But she said that as far as she is aware, there haven’t been cases dealing with this issue — an indication of the uniqueness of this situation.
Mathen said the justification of such limits depends on the basis of which provincial governments are assessing the risk.
“When we’re in this current environment, I think courts would be deferential in the moment to the government’s assertion ‘Our assessment of public health needs is that we are limiting non-essential travel and these border points create additional risk.’“