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Christine Van Geyn: Court rejects narrow take on mobility rights in pandemic travel case

The Taylor decision is a win for mobility rights, even as COVID restrictions stand

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This month, the Supreme Court of Canada released its first, and likely only, major decision addressing COVID-era restrictions. The case, Taylor v. Newfoundland and Labrador, considered the fundamental constitutional question of whether Canadians have a right to move freely within their own country.

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Mercifully, the Court found unanimously that we do.

Christine Van Geyn: Court rejects narrow take on mobility rights in pandemic travel case Back to video

In May 2020, Newfoundland and Labrador barred Nova Scotia resident Kim Taylor from entering the province to attend her mother’s funeral. The province had imposed sweeping public health orders prohibiting entry for most non-residents.

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Although Ms. Taylor was eventually granted an exemption, she challenged the travel ban with the support of the Canadian Civil Liberties Association, arguing that it violated her mobility rights under section 6 of the Charter. The Canadian Constitution Foundation intervened in the case to argue for broad protections for the right to travel within Canada.

Section 6 is one of the least litigated provisions of the Charter. The section 6 guarantee is phrased in two parts. It protects (1) the right to enter, remain in, and leave Canada, and (2) the right to move to, take up residence in, and work in any province.

But the question for the court in Taylor was does section 6 protect something broader than it might appear to protect at first glance: a general right of “mobility simpliciter,” meaning the right to move about the country without government permission?

The provincial government had advanced the extraordinary and outrageous position that the Charter contains no general right to move freely within Canada. In other words, unless you were permanently relocating or working in another province, the Constitution offered no protection at all. Given the sparse case law on section 6, there was a real risk the Court could have adopted a narrow interpretation that hollowed out mobility rights for generations.

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The majority decision, written by Andromache Karakatsanis and Sheilah Martin, who were joined by two others, held that the right to mobility in section 6 does include the broad right to mobility simpliciter, and that it exists in both sections 6(1) and 6(2) of the Charter.

Freedom of movement has deep roots in the Anglo-Canadian legal tradition — so deep that even in the 13th Century it was regarded as an ancient custom. The Charter did not invent mobility rights; it constitutionalized them. Section 6, the majority explained, serves a nation-building purpose. It promotes national unity and reinforces the idea that Canadians belong to one country, not thirteen separate jurisdictions guarded by internal borders. The court cited legislative debates the CCF provided to back this up.

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The majority concluded that the travel restrictions imposed by Newfoundland and Labrador were not fleeting or trivial and had imposed a real limit on Canadians’ freedom to move throughout Canada. This, the majority wrote, violated both sections 6(1) and 6(2) of the Charter. Although the majority ultimately held that the limit on those rights was justified under section 1 of the Charter, the decision is important because it outlines the scope and source of our mobility rights.

But perhaps the most fascinating part of the decision is that it reveals splits in the court about the approach to Charter analysis. Because there were, in fact, three separate decisions. The majority found the right to mobility simpliciter in section 6(1) and (2), but three justices, Richard Wagner, Nicholas Kasirer and Mahmud Jamal, dissented in part, holding that a right to mobility simpliciter is found only in section 6(2) and not 6(1). Justice Malcolm Rowe penned a third opinion that reached the opposite conclusion, finding the right to mobility simpliciter is in 6(1), not 6(2).

The division between the three concurrences has to do with doctrine and the approach to Charter interpretation. Comparing the three concurrences provides insight into the dividing lines on the court, and the approach the various factions may take in upcoming cases that involve interpretive methodology of the Charter and the structure of our constitution. This is almost certainly going to play out this March in the much-anticipated case of Hak v Quebec, which is the legal battle over the scope of section 33 of the Charter, the notwithstanding clause.

Advocates for liberty are frustrated that the restrictions were upheld under section 1. However, the case needs to be considered within its context. The main fight in Taylor was always over the scope of section 6. It’s one thing to say your section 6 right to mobility can be limited under section 1 of the Charter. It’s another thing entirely to say that the section 6 right to move freely about the country doesn’t exist at all. That was the extreme and untenable position taken by the government, and all the justices rejected it, albeit for different reasons.

The Taylor case now sets out the scope of the right to mobility as broad, which is a win for liberty in Canada that will last for generations.

Christine Van Geyn is the litigation director for the Canadian Constitution Foundation.

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