Quebec Premier Francois Legault pauses as he speaks during a news conference on the COVID-19 pandemic, Thursday, Jan. 21, 2021 at the legislature in Quebec City. THE CANADIAN PRESS/Jacques Boissinot

Quebec Premier Francois Legault pauses as he speaks during a news conference on the COVID-19 pandemic, Thursday, Jan. 21, 2021 at the legislature in Quebec City. THE CANADIAN PRESS/Jacques Boissinot

Non-essential travel ban would violate Constitution but courts might allow it: expert

Canadians who return from abroad are required to isolate at home for two weeks and violators risk heavy fines and jail time

Fear that Quebecers will catch a new variant of COVID-19 on vacation is what’s driving demands by the Quebec premier for Ottawa to ban non-essential flights to the country.

Premier Francois Legault repeated once again this week that his government believes it was vacationing Quebecers during spring break in 2020 who brought the virus home, allowing it to spread earlier and more widely in the province than elsewhere in Canada.

Legal experts say a ban on non-essential travel would violate the mobility rights guaranteed in the Charter of Rights and Freedoms, which states, “Every citizen of Canada has the right to enter, remain in and leave Canada.” The question, experts say, is whether a ban can be justified.

“The Constitution is very clear that Canadians have the right to enter and leave Canada,” Johanne Poirier, a McGill University law professor who specializes in Canadian federalism, said in a recent interview. But like other rights, she said, it can be limited — if the limitation is justified, reasonable and proportionate.

And given the worldwide pandemic, the courts might offer the government more flexibility, she said.

“These would not be cases where the courts would be extremely taxing or demanding on the government,” she said. “But the government would still have to justify it, because there’s no doubt that there’s a violation of rights.”

Prime Minister Justin Trudeau said Friday his government is considering new measures that would “significantly impede” Canadians’ ability to return to the country. Forcing returning travellers to quarantine in a hotel — at their expense and under police surveillance — is also on the table, he said.

Trudeau said earlier in the week he wouldn’t close the border to Canadians because the Constitution protects their right to enter the country. The prime minister, however, has restricted access to the country to foreigners since the start of the pandemic.

Michael Bryant, head of the Canadian Civil Liberties Association, said forcing people to quarantine at a government-supervised location would be justified if the state has data showing current health orders around travel aren’t working. But Bryant said in a recent interview he hasn’t seen evidence the rules are failing. “I don’t think that they have that data.”

Canadians who return from abroad are required to isolate at home for two weeks and violators risk heavy fines and jail time.

A September ruling in Newfoundland and Labrador offers an idea of how the courts would interpret the legality of travel bans, Poirier said. A judge in that province affirmed the government’s ban on interprovincial travel to limit the spread of COVID-19, despite arguments the order violated charter rights.

“I think the courts would be very reluctant in the short term to stand in the way of a government that wanted to ban travel,” she said.

As of Thursday, there were five cases in Quebec of the new COVID-19 variant that was first detected in the U.K. Four of those cases — detected in December — were related to travel to that country. Officials have said the source of the fifth case remains unknown.

Bryant said he doesn’t believe fears of new COVID-19 variants justify added restrictions on mobility rights, especially if more proportionate responses — such as increased testing of people arriving in the country — are available.

Meanwhile, data from the federal government indicates travellers are being exposed to COVID-19 as they fly back to the country. Since Jan. 6, passengers on 164 international flights arriving in Canada have been exposed COVID-19 while flying, according to the Public Health Agency of Canada. Thirty-two of those flights have been to Montreal and one to Quebec City.

But Montreal-based airline Air Transat said travel has been associated with relatively few cases of COVID-19.

“And yet, even with travel accounting for only one per cent of COVID-19 cases, there has been an enormous amount of attention dedicated to it over the last few weeks,” Air Transat spokeswoman Debbie Cabana wrote in an email.

“Perhaps part of that attention should be redirected to the factors that contribute to 99 per cent of COVID-19 infections.”

If the government wants to ban travel, Cabana said, it should ban it — and give airlines financial support. “You cannot ask a company fighting for survival to continue to operate while taking away its customers.”

Jacob Serebrin, The Canadian Press

Like us on Facebook and follow us on Twitter.

Want to support local journalism? Make a donation here.

Coronavirus

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Cathy Armstrong, executive director of the Land Conservancy, Paul Nursey CEO of Destination Greater Victoria and Saanich Coun. Susan Brice helped to kick off the annual Greater Victoria Flower Count at Abkhazi Garden Monday. This year, the flower count is less about rubbing the region’s weather in the rest of Canada’ faces, and more about extending a bouquet of compassion and love. (Nina Grossman/News Staff)
2021 Greater Victoria Flower Count sows seeds of compassion

Friendly flower count competition runs from March 3 to 10

Island Health chief medical officer Dr. Richard Stanwick receives a first dose of Pfizer vaccine, Dec. 22, 2020. (B.C. government)
COVID-19: B.C. seniors aged 80+ can start to sign up for vaccination on March 8

Long-term care residents protected by shots already given

The Save-On-Foods Memorial Centre has reopened with 45 shelter spots for people experiencing homelessness in Victoria. (Courtesy of Save-On-Foods Memorial Centre)
Save-On-Foods Memorial Centre shelter in Victoria reopens with spots for 45 people

Arena is an interim step until long-term housing is found

(Black Press Media file photo)
Suspect arrested after items stolen from parked vehicles in Saanich

Saanich police located the suspect thanks to a very detailed witness description

Langley resident Carrie MacKay shared a video showing how stairs are a challenge after spending weeks in hospital battling COVID-19 (Special to Langley Advance Times)
VIDEO: Stairs a challenge for B.C. woman who chronicled COVID-19 battle

‘I can now walk for six (to) 10 minutes a day’

Churches, including Langley’s Riverside Calvary Church, are challenging the regulations barring them from holding in-person worship services during COVID-19. (Langley Advance Times file)
Det. Sgt. Jim Callender. (Hamilton Police Service screenshot)
B.C. man dead, woman seriously injured after shooting in Hamilton, Ont.

The man was in the process of moving to the greater Toronto area, police say

Police have identified the vehicle involved in the Feb. 14 hit-and-run in Chemainus and are continuing to investigate. (Black Press Media files)
Police seize and identify suspect vehicle in hit-and-run

Investigation into death expected to be lengthy and involved

(Black Press file photo)
Child in critical condition, homicide investigators probe incident near Agassiz

The child was transported to hospital but is not expected to survive

Sewage plant in Lower Mainland, operated by Metro Vancouver. (Metro Vancouver screenshot)
‘Poop tracker’ launches as researchers test Lower Mainland sewage water for COVID-19

‘Studying the virus in wastewater allows researchers to look at an entire population…’

This poster, spreading misinformation regarding COVID-19 restrictions, has been popping up in communities across Vancouver Island.
UPDATED: Poster popping up in Island communities falsely claiming COVID restrictions are over

Unattributed poster claims COVID restrictions ended March 1; Island Health responds

(Pxhere)
Compensation fund opens for B.C. students negatively affected by incorrect exam marks

Marks for 2019 provincial exams were incorrectly tabulated

THE CANADIAN PRESS/Jeff McIntosh
Time to check the mail: Every household to receive a Canada Post postcard this spring

Postcard can be mailed for free to any address in Canada

Most Read