The Supreme Court of Canada will consider an unprecedented appeal this week about whether Canadians have the constitutional right to move freely throughout the country.
Kimberley Taylor, who was denied entry into Newfoundland and Labrador during the pandemic to attend her mother’s funeral, contends that the province’s travel ban breached her mobility guarantee protected by the Charter of Rights.
“Denying the right of entry into a province strikes at the heart of the Canadian identity and Canada’s existence as a unified nation,” Taylor’s lawyer, John Drover, wrote in a legal brief to the Supreme Court.
Five years after the outbreak of COVID-19, the painful memories remain vivid for Taylor, whose mother, Eileen Taylor, suddenly passed away on May 5, 2020.
The day before her mother’s death, which was non-COVID related, Newfoundland and Labrador imposed a travel ban that largely barred non-residents from entering the province.
Taylor, who lives in Halifax but identifies as a Newfoundlander, made plans to return to St. John’s, self-isolate for two weeks and then attend the funeral.
Taylor applied for an “extenuating circumstances” exemption to the travel restriction, but the province’s chief medical officer of health denied the request, with no reasons provided.
“I was purely asking to follow the rules and get myself there so that I could be there for my elderly father and my only other sibling in a very difficult, difficult time for our family,” Taylor said in an interview.
When she applied for reconsideration, she was granted entry, again with no reasons. By that time, it was too late to attend the funeral.
“I feel incredibly betrayed by a province that I was born in, and grew up in, and was educated in and worked in,” she said. “I don’t think I’ll ever get over it, I don’t think my family will ever get over it.”
Taylor added that the government rules were “willy nilly,” given that her application was denied at the same time “construction workers from other provinces were being permitted to come in and they didn’t even have to quarantine.”
Taylor teamed up with the Canadian Civil Liberties Association and took the provincial government to court to challenge the constitutionality of the travel ban. One of their key arguments is that the charter right to “enter, remain in and leave Canada” includes a guarantee to travel freely between provinces and territories.
The Supreme Court of Newfoundland and Labrador agreed that Taylor’s charter rights were violated. In his September 2020 decision, Justice Donald Burrage used the analogy of “the right to come and go from one’s home, and to remain in it, as surely including the right to wander freely from room to room.”
But Taylor lost her case nonetheless because Burrage concluded that the charter violation was justified “as a reasonable measure to reduce the spread of COVID-19” in a province that has limited health-care resources and an older and unhealthier population than the rest of the country.
The Court of Appeal of Newfoundland and Labrador declined in 2023 to hear Taylor’s appeal on grounds that the issue was moot because the pandemic was over.
The Supreme Court of Canada agreed last year to take on the case, which both sides say has merit because the constitutional question begs for clarification for future pandemics or other events that could cause travel bans, such as climate disasters or even war.
The Newfoundland and Labrador government disputes the claim that the charter guarantees free movement. It “protects permanent movement, not the type of temporary, non-essential travel undertaken by the Ms. Taylor,” government lawyers wrote in a legal brief to the Supreme Court of Canada.
Drover counters that Justice Burrage was “overly deferential” to government medical officials in ruling the charter violation was justified.
“It is tempting, in a time of crisis, to defer to the authorities charged with managing it,” Drover wrote. “But times of crisis are also precisely when the civil liberties and fundamental freedoms that define our society are at greatest risk.”
The Attorney General of Canada, who is among the intervenors granted permission to make arguments, wrote in a submission to the Supreme Court that the COVID-19 pandemic warranted deference to the government.
“An approach that fails to afford proper leeway in these circumstances could seriously undermine the ability of all governments to respond effectively in times of crisis,” federal lawyers wrote.
Taylor says she is still working through the enduring trauma and aftermath of losing her mother, who she describes as “the family matriarch.”
Though the Supreme Court’s decision will not turn back time, Taylor said she is still interested in the outcome.
“My mother’s voice, in my head, it says, ‘You do what you need to do to make this right, so that this never happens to anybody else again.’”
The Supreme Court will hear the appeal on April 15 and 16.
Sarah St-Pierre and Zacharie Landry are students in a legal journalism course at Carleton University.
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