Share this Story: Michael Bryant on COVID-19: Provincial border closures are an affront to our history and Constitution
Michael Bryant on COVID-19: Provincial border closures are an affront to our history and Constitution
Canadian governments excluding entry based on residence are flunking their history and geography exams. It's not their border to patrol
Michael Bryant, Special to National Post
May 21, 2020 • May 21, 2020 • 3 minute read
A sign indicates that provincial health department workers will stop traffic that has crossed the Confederation Bridge in Cape Jourimain, N.B., on March 22. Photo by Andrew Vaughan/The Canadian Press
Provincial and territorial border closures due to COVID-19 are proving former prime minister Mackenzie King's truism that "Canada is a country with too much geography and not enough history." As the Maritime provinces and Quebec continue to restrict travel, the Canadian Civil Liberties Association has gone to court to challenge recent legislation and executive orders in Newfoundland and Labrador that restrict non-residents from entering the province. As a result, the Rock's disdain for witless mainlanders may spike accordingly, although I have no doubt it will be done with humour.
Canadians have a constitutional right to freedom of movement within the country. This right is so sacrosanct that no legislature can overrule it with the notwithstanding clause. Why would that be? The answer is history.
Michael Bryant on COVID-19: Provincial border closures are an affront to our history and Constitution Back to video
That the First Ministers gave mobility its constitutional pre-eminence in 1982 is history enough. That decision was based on Canada's past, as we have historically been a nation dominated by regionalism. The Dominion of Canada joined its parts in 1867 as a bulwark against the balkanization of those regions, because that had always brought out the worst of Canada on innumerable fronts. Thus, the Constitution Act, 1867, guaranteed mobility "as if provincial boundaries did not exist," according to the Supreme Court of Canada's interpretation.
An RCMP vehicle sits in front of the Confederation Bridge as a vehicle passes under a sign warning about a COVID-19 checkpoint, on April 2. Photo by John Morris/Reuters
Border closures also run counter to our modern vision of Canada as a country that embraces multiculturalism, equality and immigration, and is trying to unite, not divide, the world and itself. A Confederation that is finally seeking to reconcile with its Indigenous peoples, moreover, should know better than to allow provinces and territories to claim lands as their own, to the exclusion of others.
The fact is that any violation of a Charter right requires evidence-based justifications of compelling necessity and strict proportionality. The provincial and territorial border restrictions in response to COVID-19 are not based on population density and the need for social distancing. Instead, they're based on residency.
These public health policies are intended to curb the spread of viral infection by reducing population density and proximity, so as to increase social distancing, all in the name of lowering the risk of infection. If the jurisdictions that pulled up the draw bridge had based their legal orders on evidence of population density, that would have been one thing. But they didn't. If you want to cross the Quebec-Labrador border in either direction, you have to be doing something deemed "essential." (This, it turns out, is quite arbitrary. Going to work is deemed essential, but officials initially blocked a woman from entering in order to attend her mother's funeral, which makes it sound as though they value economics more than family.) If you're not entering the province for "essential travel," you needed to be a local.
Members of Quebec's provincial police force stop motorists at a checkpoint near the Ontario border on March 29. Photo by Graham Hughes/The Canadian Press
Now, why on earth would it matter if you were a local? The only constitutionally permissible answer has to be that the population density is so high in that province that it could only manage the locals. If density increased by even one person, for one day, this sketchy argument goes, more people would fall ill and die. The problem is that no population density evidence has ever been offered, and none was presented within the emergency orders or legislation to justify the mobility limitations, as is required by the Constitution. Worse, the orders restricting mobility were enacted after the curve was flattened, when necessity was decreasing.
Imagine a liquor store that has a line up, presumably because the store's maximum capacity has been reached, based on people per square metre with a social distancing bubble. When it's your turn to enter, you're turned away because you live across town. Could that residency criteria be said to be necessary or proportionate?
The Canadian governments that are excluding entry based on residence are flunking their history and geography exams. It's not their border to patrol. In Canada, we're all locals.
Michael Bryant is the executive director of the Canadian Civil Liberties Association, and was the 35th attorney general of Ontario.
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