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N.W.T.'s previous travel restrictions may infringe on Charter freedoms, admits government

The joint statement from Premier Caroline Cochrane, Minister of Health and Social Services Diane Thom, and Chief Public Health Officer Dr. Kami Kandola suggests the previous order restricting travel into the territory obstructed upon Canadians’ mobility rights under the Charter of Rights and Freedoms.

Government now says N.W.T. is open to all Canadian travellers, under some conditions

N.W.T. Premier Caroline Cochrane’s national television appearance sparked confusion among residents, who believed outside visitors from outside the territory were not allowed in. (Walter Strong/CBC)

The Northwest Territories government announced Wednesday that the territory is open to all Canadian travellers, saying that its previous travel restrictions conflicted with the Charter of Rights and Freedoms.

The government said this change of policy has been in effect since May 29, although Wednesday's news release was the first official statement of the change.

The announcement seems to partially roll back an order from the chief public health officer that restricted entry into the N.W.T. to all except residents and essential workers. That ban came into effect on March 21, "prohibiting all travel (by air, land, and port) into the Northwest Territories, with limited exceptions."  

The territory has repeatedly said it put travel restrictions in place as a "necessary measure" to help slow the spread of COVID-19 and mitigate its impact on the N.W.T. health system and its residents.

The joint statement Wednesday from Premier Caroline Cochrane, Minister of Health and Social Services Diane Thom, and Chief Public Health Officer Dr. Kami Kandola suggests the previous order restricting travel into the territory conflicted with Canadians' mobility rights under the Charter of Rights and Freedoms.

"While the [chief public health officer] does not have the authority to prohibit Canadians from entering the N.W.T., she does have the authority to restrict travel within our borders," reads the statement.

The bottom line is that our government cannot prevent people from entering into the Northwest Territories.- Diane Thom, N.W.T. health minister

The statement says that before May 29, "border officials asked people to turn around and return to their destination if they did not fit an existing exemption in order to meet our objectives."

Now, the government says it has shifted from how the travel restrictions were implemented until May 29, and its new direction "reflects an effort to more closely align implementation of the order with the mobility provisions of the Canadian Charter of Rights and Freedoms."

'Shift' in policy, 'exemption' requirement unclear

Under the current order, all travellers will be met at a border checkpoint by a border officer, who will collect their information and, "if they do not meet an identified exemption, the border officer will inform them of the N.W.T.'s public health travel restrictions — including the requirement for anyone entering to self-isolate for 14 days."

The statement says travellers may choose to turn around, but if they do not, "they are informed that they must seek an exceptional circumstances exemption, and immediately self-isolate if they wish to proceed further in the N.W.T."

What an "exceptional circumstances exemption" is, is not clarified in the statement.

In the Legislative Assembly Wednesday, Thom said non-residents would be expected to pick up the cost of their mandatory self-isolation in the N.W.T. (CBC)

On Wednesday in the Legislative Assembly, Minister Thom said the "shift" in policy stemmed from legal challenges to similar travel bans in other jurisdictions.

"Following legal developments in southern Canada, challenging similar actions in Newfoundland and Labrador, we realized we need to take steps to more closely align implementation of our order with the mobility provisions of the Canadian Charter of Rights and Freedoms," she said.

"The bottom line is that our government cannot prevent people from entering into the Northwest Territories, but we can restrict or prohibit their movements once they are in the Northwest Territories."

Thom added that non-residents who come into the territory will be asked to cover the cost of their mandatory self-isolation in one of the territory's four isolation centres (Yellowknife, Inuvik, Hay River and Fort Smith).

"Our plan is to continue to cover the costs for people who need to access one of our self-isolation centre[s] for Northwest Territories residents, but we'll be asking non-Northwest Territories residents to cover the costs of their stay themselves," Thom said.

Premier's comments sparked confusion

Wednesday's statement comes after the premier declared on a CBC News Network special on Monday that the territory was open to national tourism, given visitors follow a self-isolation plan upon arrival. Cochrane's television appearance sparked confusion among residents, who believed outside visitors, including family members and people with Indigenous roots in the territory, were not allowed in.

WATCH | Premier Cochrane says tourism 'on the table':

Cochrane on Tourism 1:11

"In an interview with CBC Television on Monday, June 8, Premier Cochrane was asked if tourism was 'off the table' for the N.W.T. The Premier answered that tourism was on the table, so long as people self-isolated for 14 days, which is consistent with how [health] orders are currently being implemented," reads Tuesday's statement.

Violates charter, CCLA says

The Canadian Civil Liberties Association (CCLA) has joined a lawsuit and has sent letters outlining its concerns to each of the provinces and territories that had banned Canadian visitors. 

The CCLA argues that provinces and territories barring Canadians violates the country's Charter of Rights and Freedoms, which states that every Canadian has the right to live and work in any province. It says if a province or territory limits those rights, its reasons must be justified

"The constitution does guarantee Canadian citizens and permanent residents the right to move freely throughout the country," said Cara Zwibel, a lawyer and director of the fundamental freedoms program at the CCLA, in a telephone interview.

"In our view, although charter rights can be limited or restricted, those limits have to be reasonable and justified. Our view is that there are clearly less intrusive ways, and less rights-infringing ways, of achieving the public health goals the governments are trying to achieve without completely barring people from entering the province or territory."

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