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COVID - Charter. Taylor v. Newfoundland and Labrador [mobility]
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court summarized this Charter s.6 ['Mobility Rights'] case:[1] Mobility rights sit at the heart of what it means to be a free person. The ability to move freely throughout one’s country, without restriction or need for government authorization, often differentiates a liberal democracy from an authoritarian dictatorship. This appeal asks whether an interprovincial travel restriction, adopted during the early days of the COVID-19 pandemic, unjustifiably infringed Canadians’ constitutionally protected freedom of movement. We answer that it did not. The travel restriction limited the constitutional right to free movement, but Newfoundland and Labrador has shown it was demonstrably justified.
[2] Broad mobility rights have existed at common law for almost a thousand years. At Confederation, these common law rights were embedded into Canada’s legal and cultural framework. Since then, and with a few bleak exceptions, Canadians have enjoyed the freedom to move throughout this country for travel, work, or to take up residence. Similar mobility rights are protected under international law, and feature in the constitutional jurisprudence of other rights-respecting democracies. And in 1982, they were constitutionally entrenched in our own constitution, under s. 6 of the Canadian Charter of Rights and Freedoms.
[3] This Court’s jurisprudence on s. 6 has emphasized the importance of free mobility to personal autonomy, identity, and dignity. We have also recognized that protecting the right of all Canadians to move freely within this country promotes national unity and national identity.
[4] Before the pandemic, no Canadian court had been asked to recognize a Charter right to travel across provincial borders. The freedom to travel throughout the country as one desired, without government-imposed barriers, was seen as a given — an entitlement so central to our way of life that most Canadians likely assumed that it was already judicially recognized. Yet basic principles are often tested by exceptional circumstances, and that assumption came into sharp focus during the COVID-19 pandemic in Canada.
[5] The COVID-19 pandemic that hit the world in 2020 was an indisputable public health emergency. The virus was infectious and deadly. Canada confirmed its first case of the virus in January 2020. In the pandemic’s early stages, governments grappled with the difficult yet urgent task of developing lifesaving measures in the face of limited and changing information. By September 2024, when Health Canada discontinued statistical reporting, millions of Canadians had been infected with the virus, and 60,871 Canadians had died of it.
[6] Canadians expected their governments to respect their rights and freedoms. Canadians also expected their governments to protect them from harm and save lives during an emergency. The pandemic placed those two imperatives in tension. Governments across Canada restricted personal rights and freedoms to limit person-to-person contact and combat the spread of the deadly virus.
[7] This appeal relates to one such restriction — a partial travel ban imposed in Newfoundland and Labrador.
[8] In May 2020, the Chief Medical Officer of Health (CMOH) of Newfoundland and Labrador ordered that non-residents of the province — including Canadians living in other provinces and territories — be prohibited from entering the province, subject to narrow exceptions. Only the CMOH retained the discretion to authorize non-residents to enter in extenuating circumstances. Thus, the freedom of Canadians to travel across provincial borders became subject to government authorization.
[9] In May 2020, the appellant, Kimberley Taylor, attempted to enter Newfoundland and Labrador, where her mother had died unexpectedly. She wanted to attend the burial, grieve with her family, and help her elderly father. But as a non-resident of the province, she was denied permission to enter. She requested an exemption from the relevant authorities, who took 10 days before authorizing her entry into the province. Ms. Taylor, joined by the Canadian Civil Liberties Association (CCLA), seeks a declaration that this travel restriction unjustifiably violated s. 6 of the Charter. The province resists. First, the province denies that s. 6 — the “Mobility Rights” or “Liberté de circulation et d’établissement” section of our Charter — guarantees a right to move across provincial borders for temporary travel. In the alternative, it submits that their travel restriction was a justified infringement under s. 1 of the Charter.
[10] We conclude that the s. 6 “mobility rights” of the Charter guarantee Canadian citizens and permanent residents the right to travel freely throughout Canada, including across provincial borders. Laws that prevent free movement, or which make movement contingent on government approval, infringe s. 6. Newfoundland and Labrador’s travel restrictions did just that.
[11] As with all laws that limit rights, the government can seek to justify the limit under s. 1. While travel bans and other significant infringements on mobility will generally not be justifiable in a free and democratic society, this was a grave emergency. That said, a public health emergency does not give the government free rein to suspend fundamental rights and freedoms. Courts must still rigorously review emergency measures for Charter compliance under the proportionality analysis outlined in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.
[12] We conclude that Newfoundland and Labrador’s travel restrictions pass scrutiny under Oakes. Travel restrictions were a reasonable component of a comprehensive government response to the extraordinary crisis of the pandemic — especially its early stages. The record shows that Newfoundland and Labrador had a population that was uniquely vulnerable to COVID-19, and a low capacity to provide medical treatment in case of widespread illness. Other Attorneys General intervened to emphasize the limited options open to smaller, more isolated provinces and territories. In these circumstances, the province justifiably chose to enact significant restrictions on movement to minimize the spread of the virus into its borders in the first place. It has demonstrated that no less-infringing alternative measure would have achieved its aim. In these circumstances, the benefits of saving lives and protecting health outweighed the temporary limits on free movement.
[13] The public health restrictions enacted during the COVID-19 pandemic exist now only in memory. This case is therefore moot. But unlike the Court of Appeal, we exercise our jurisdiction to hear this important case on its merits. We agree with the application judge’s conclusion that the challenged travel restrictions were constitutional, although we would recognize that the laws in question limited s. 6(2), in addition to s. 6(1) of the Charter. Accordingly, we would allow the appeal in part.
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