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

The Cowichan Capitals traded defenceman Clark Webster to his hometown Summerside Western Capitals. (Kevin Rothbauer/Citizen)
Hopeful Cowichan Capitals make flurry of deadline deals

Roster bolstered in case BCHL season gets go-ahead

Neurologist and medical educator Dr. Alexandre Henri-Bhargava, seen here speaking at the 2020 Breakfast to Remember in Victoria, will delve into the latest in dementia research during an interactive research event exclusively for attendees of this year’s virtual Breakfast. Access to the March 10 research event is included with the purchase of a Breakfast to Remember ticket. (Kevin Light Photography)
Blast off with Chris Hadfield at Alzheimer Society’s Breakfast to Remember in March

The Society hopes people in all corners of the province will make the most of this opportunity

The City of Duncan will implement a new pilot project targeting vandalism this spring. (File photo)
Duncan initiates pilot project to deal with graffiti

Project based on a successful one in Port Alberni

The victim of the homicide on Cowichan Lake Road early Monday morning was 17 years old, and was stabbed in the incident. (Kevin Rothbauer/Citizen)
Duncan homicide victim was 17 years old

RCMP report that teenager was stabbed

Health Minister Adrian Dix looks on as Dr. Bonnie Henry pauses for a moment as she gives her daily media briefing regarding COVID-19 for British Columbia in Victoria, B.C. THE CANADIAN PRESS/Jonathan Hayward
7 additional deaths and 542 new COVID-19 cases in B.C.

Provincial health officials reported 18 new COVID-19 cases linked to variants of concern

Chief Justice Christopher Hinkson (Office of the Chief Justice)
Judge questions whether B.C.’s top doctor appreciated right to religious freedom

Lawyer for province says Dr. Henry has outlined the reasons for her orders publicly

A sample of guns seized at the Pacific Highway border crossing from the U.S. into B.C. in 2014. Guns smuggled from the U.S. are used in criminal activity, often associated with drug gangs. (Canada Border Service Agency)
B.C. moves to seize vehicles transporting illegal firearms

Bill bans sale of imitation or BB guns to young people

BC Housing minister David Eby is concerned that Penticton council’s decision to close a local homeless shelter will result in a “tent city” similar to this one in Everett, Wa. (Olivia Vanni / Black Press file)
‘Disappointed and baffled’ B.C. housing minister warns of tent city in Penticton

Penticton council’s decision to close a local homeless shelter could create tent city, says David Eby

This was the scene outside North Saanich’s Parkland Secondary School after an attempted but unsuccessful break-and-enter into the school torched an ATM inside of it. Sidney/North Saanich RCMP did not make any arrests and currently lack suspects as the investigation continues. Members of the public who may have witnessed something or possess other information can contact police at (250) 656-3931 or to Crimestoppers at 1-800-222-TIPS. (Submitted)
Money to burn: burglars torch North Saanich high school ATM

Police dogs searched the exterior and interior of the school after early morning break-and-enter

A recently published study out of UBC has found a link between life satisfaction levels and overall health. (Pixabay)
Satisfied with life? It’s likely you’re healthier for it: UBC study

UBC psychologists have found those more satisfied with their life have a 26% reduced risk of dying

A vial of some of the first 500,000 of the two million AstraZeneca COVID-19 vaccine doses that Canada has secured through a deal with the Serum Institute of India in partnership with Verity Pharma at a facility in Milton, Ont., on Wednesday, March 3, 2021. THE CANADIAN PRESS/Carlos Osorio - POOL
Federal panel recommends 4-month gap between COVID vaccine doses due to limited supply

The recommendation applies to all COVID-19 vaccines currently approved in Canada

t
Province invests $2M in three Vancouver Island food hubs

Hub network provides shared-use processing facilities to small agri-businesses

A vial of Oxford-AstraZeneca COVID-19 vaccine is pictured at a family doctor office, Thursday, Feb. 25, 2021 in Paris. THE CANADIAN PRESS/AP -Christophe Ena
Trudeau ‘optimistic’ that timeline for rollout of COVID vaccines can be accelerated

Canada set to receive more than 6M COVID-19 vaccine dose than initially expected, by end of March

Most Read