The Current

Here's what a lawyer says about the constitutionality of a B.C. travel ban

Calls are mounting for the B.C. government to impose an inter-provincial travel ban, in an effort to curb the spread of COVID-19. Cara Zwibel, a lawyer and director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, says the courts must weigh whether such a restriction is “reasonable and justified.”

Provincial government weighing tighter travel restrictions to curb spread of COVID-19

A passenger waits at an empty international departures gate at Vancouver International Airport in Richmond, B.C., on March 16, 2020. The B.C. government is seeking legal advice about whether it can impose an inter-provincial travel ban. (Ben Nelms/CBC)

As calls mount for the B.C. government to impose an inter-provincial travel ban, one lawyer says the courts must weigh whether such a restriction is "reasonable and justified."

Last week, B.C. Premier John Horgan said his government was getting legal advice on whether imposing such a restriction would be doable. He said that although premiers have made a case for Canadians to stay home during the pandemic, people continue to travel.

An emergency room doctor in Whistler, B.C., told CBC News last week, for example, that she saw a "worrying" number of patients from Ontario and Quebec over the holidays, and that an influx of visitors could overwhelm the province's health-care system. 

Canada's Chief Public Health Officer Dr. Theresa Tam later weighed in to reiterate that now is not the time for people to be taking vacation across the country.

The tourism industry, however, has decried the possibility of a travel ban, saying it would decimate what's left of the sector. People in the industry say that while non-essential travel shouldn't be encouraged, they do have stringent safety measures in place to protect guests and employees.

The Current's Matt Galloway unpacked the issue with Cara Zwibel, a lawyer and director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association. Here is part of their conversation.

What rights do Canadians have when it comes to travelling in this country?

The Canadian Charter of Rights and Freedoms protects our mobility rights, and that includes the right of citizens to enter and leave and remain in the country. And it includes the right of citizens and permanent residents to inter-provincial movement. So, what the charter actually says is that you have the right to move to and reside in any province and that you have the right to earn a livelihood in any province. 

Now, to me, both the language of the charter and really what it means to be … a resident of a country, means that you have the right to move freely within the country. But like every right we have in the charter, that right is subject to limits. And the question is whether those limits imposed by governments are reasonable and justified.

Do those rights change at all in extraordinary circumstances like the one we're living through now?

The rights themselves don't change, but I think the calculus that goes into deciding whether, you know, a restriction placed by governments is reasonable or not is certainly affected by the circumstances that we're in.

B.C. premier says he wants to put questions around closing provincial borders 'to rest'

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The B.C. government is getting legal advice to determine whether an inter-provincial travel ban would be doable as COVID-19 cases soar across the country.

How do you define what reasonable is?

That's the million dollar question. 

But for us [at the Canadian Civil Liberties Association], what's important is that if the government is imposing a restriction on a constitutionally protected right, they have a reason that they can demonstrate is important, and they also have evidence that demonstrates that what they're doing is going to be effective and is proportional. 

The courts also look at whether there are less restrictive alternatives that the government can engage in. So, you know, many provinces have said, if you're going to come here from another province, you are expected to self-isolate for a period when you arrive. That's still a restriction on our mobility rights, but it's a lesser restriction than just saying you can't come in at all.

The B.C. government has said that it would only restrict non-essential travel. I mean, you know, I love Tofino, but me going to Tofino is not essential, I don't think. It'd be hard to define that. Does that change anything when you take a look at those charter rights, if you're looking at essential or non-essential travel?

Definitely. I think, you know, most people would agree that … this isn't a great time for a vacation, as much as we all need one and would like one. 

At the same time, I think that there are going to be definitional problems with what is essential. And we've already seen this with some of the other provinces that have tried to do this. 

In Newfoundland and Labrador, initially people who were … coming to mourn the loss of a loved one, to go to a funeral for a parent, for example, were told that they couldn't come in. I mean, some people would say that is an essential reason to travel. And so it does become a problem.

The [Canadian Civil Liberties Association] lost the charter challenge [regarding] the restrictions in Newfoundland and Labrador, the ones that you just mentioned. What happened there? I mean, why were you not successful in that?

The court in that case said … there is a constitutional right to move freely, but said that the restriction imposed by [the] government was reasonable. We disagree with that decision. We are appealing it

We think what the court did in that case was reverse the burden, really. In our view, when a government imposes a restriction, it is on the government to demonstrate why they need to do that. And really what the court in that case, in our view, was saying, was that we hadn't demonstrated something that we were supposed to demonstrate. 

Cara Zwibel is a lawyer and director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association. (Submitted by the Canadian Civil Liberties Association)

In the intro [of this show], you know, I heard the premier of B.C. talking about people being concerned about the people that are coming [into the province]. I mean, with respect … that's not really a good enough justification to restrict constitutional rights. We really need some evidence that this is a problem, that this is a source of transmission and a source of infection, and that there is an effective way to try and deal with it and target it. 

It was the same issue in Newfoundland and Labrador. They had a rule that said you have to self-isolate if you come in from out of province. And people were concerned that people would not abide by those rules. So they went to a stricter rule, even though there was really no evidence that that was happening, that people weren't self-isolating and weren't being, you know, responsible.

The guidance from public health officials to stop the transmission of this virus is just to stay home. So in the face of that, why is this an important fight for you?

I think it's about the bigger picture around what governments are entitled to do, and what they need to prove … to do it.

We can't take a strictly "better safe than sorry" approach with everything, because that can lead us to … policing all sorts of behaviour that we don't think should be policed. 

Written by Kirsten Fenn. Produced by Lindsay Rempel and Joana Draghici.