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

School District 27 (SD27) issued notice Thursday, Feb. 25 of a COVID-19 exposure at Mountview Elementary School. (Angie Mindus photo)
School district reports positive COVID-19 case in Williams Lake elementary school

A letter went home to families of Mountview Elementary School

The City of Williams Lake is asking for public feedback on whether it should explore the opportunity to host a Greater Metro Hockey League team in Williams Lake. (Angie Mindus photo - Williams Lake Tribune)
City of Williams Lake seeks feedback on hosting junior hockey league team

A league expansion application in Quesnel is also pending

A rainbow shining on Kelowna General Hospital on May 12, 2020 International Nurses Day. (Steve Wensley - Prime Light Media)
New COVID cases trending down in Interior Health

24 new cases reported Thursday, Feb. 25, death at Kelowna General Hospital

LADDER USED IN FIRE FIGHT: While smoke billows out of the second floor of the Maple Leaf Hotel, members of the Williams Lake Volunteer Fire Department fight to contain the blaze. The department was called out Tuesday morning to battle the blaze that wreaked havoc on the interior of the 57-year-old hotel. One man, Harold Hurst of Riske Creek, died in the fire. (Ernest Engemoen photo - Williams Lake Tribune, April 12, 1977)
FROM OUR ARCHIVES: Ladder used in fire fight

The department was called out Tuesday morning to battle the blaze

Provincial funding in the amount of $300,000 has been announced for the Cariboo Regional District’s plans to improve the Anahim Lake Airport runway. (CRD photo)
$300,000 provincial funding to fuel Anahim Lake Airport runway upgrade

The recovery grant is one of 38 announced to support jobs in rural communities

Provincial health officer Dr. Bonnie Henry updates B.C.’s COVID-19 situation at the B.C. legislature. (B.C. government)
B.C. reports 10 additional deaths, 395 new COVID-19 cases

The majority of new coronavirus infections were in the Fraser Health region

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

A new survey has found that virtual visits are British Columbian’s preferred way to see the doctor amid the COVID-19 pandemic. (Unsplash)
Majority of British Columbians now prefer routine virtual doctor’s visits: study

More than 82% feel virtual health options reduce wait times, 64% think they lead to better health

Captain and Maria, a pair of big and affectionate akbash dogs, must be adopted together because they are so closely bonded. (SPCA image)
Shuswap SPCA seeks forever home for inseparable Akbash dogs

A fundraiser to help medical expenses for Captain and Maria earned over 10 times its goal

The missing camper heard a GSAR helicopter, and ran from his tree well waving his arms. File photo
Man trapped on Manning mountain did nearly everything right to survive: SAR

The winter experienced camper was overwhelmed by snow conditions

Cory Mills, Eric Blackmore and A.J. Jensen, all 20, drown in the Sooke River in February 2020. (Contributed photos)
Coroner confirms ‘puddle jumping’ in 2020 drowning deaths of 3 B.C. men

Cory Mills, Eric Blackmore and A.J. Jensen pulled into raging river driving through nearby flooding

Castlegar doctor Megan Taylor contracted COVID-19 in November. This photo was taken before the pandemic. Photo: Submitted
Kootenay doctor shares experience contracting COVID-19

Castlegar doctor shares her COVID experience

Ashley Paxman, 29, is in the ICU after being struck by a vehicle along Highway 97 Feb. 18, 2021. She remains in critical condition. (GoFundMe)
Okanagan woman in ICU with broken bones in face after being struck by car

She remains in serious condition following Feb. 18 incident

Vancouver International Women in Film Festival kicks off March 5.
Women in Film Festival features two B.C. filmmakers

The 16th annual festival kicks off March 5, 2021

Most Read