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| Tega Adjara |
Kim Taylor, a Canadian citizen living in Nova Scotia, sought to return to Newfoundland and Labrador after the death of her mother. Her request was denied. She challenged the provincial regime, arguing that it violated the mobility rights guaranteed under s. 6 of the Canadian Charter of Rights and Freedoms. The lower court upheld the measures, and the matter eventually reached the Supreme Court of Canada, where it was heard by a full bench.
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Although the decision resolved the legal dispute in favour of the province, it leaves space for careful constitutional reflection grounded in established Canadian legal principles.
Section 6 mobility rights as a constitutional anchor
Section 6 protects the right of citizens and permanent residents to move freely throughout the country and to take up residence in any province. This protection is not peripheral. It is a defining feature of Canada as a unified national community. A measure that restricts entry into a province begins to resemble an internal border, something that sits uneasily with the structure and spirit of Confederation.
In Taylor, the court openly acknowledged that a breach of s. 6 had occurred. That recognition is significant. It affirms that interprovincial movement is constitutionally protected and that limits on it require justification. The dispute therefore turned not on whether rights were engaged, but on whether the restriction could be sustained under s. 1.
The governing test under Section 1
The framework for determining whether a Charter infringement can be justified is set out in R. v. Oakes, [1986] 1 S.C.R. 103. Under that test, the government must establish a pressing and substantial objective, a rational connection between the measure and that objective, minimal impairment of the right, and overall proportionality.
There is little real controversy that protecting public health at the outset of a global pandemic was a pressing and substantial objective. The more difficult constitutional questions arise in the remaining parts of the analysis, particularly minimal impairment and proportionality. These stages require courts to examine not only what the government did, but whether it went further than necessary in limiting a protected freedom.
Minimal impairment as a central constitutional concern
A near complete restriction on entry into a province is one of the most serious limitations that can be imposed on mobility rights. The constitutional question is not whether the government acted in good faith, but whether it chose a measure that impaired rights no more than reasonably necessary in the circumstances.
The Supreme Court has emphasized the importance of minimal impairment in decisions such as Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. In that case, the court stressed that where fundamental rights are affected, the state must justify the scope of the measure adopted and demonstrate that it falls within a reasonable range of alternatives.
A principled critique of Taylor may focus on whether less intrusive measures were realistically available at the time. Alternatives such as quarantine requirements, testing protocols or structured compassionate entry processes may have offered meaningful protection while preserving mobility to a greater degree. If credible alternatives were available, the minimal impairment analysis becomes more difficult to sustain.
Balancing the effects of the measure
The final stage of the Oakes test requires courts to weigh the benefits of a measure against the harm caused to constitutional rights. This balancing approach has been reinforced in decisions such as Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199.
In the context of pandemic restrictions, the human consequences were significant. Individuals were unable to attend funerals, care for ill family members or return home during moments of personal crisis. These were not minor inconveniences. They affected dignity, connection and the ability to respond to family loss and hardship.
A careful constitutional reflection might ask whether the balancing exercise fully captured the weight of those personal harms when set against the uncertain and evolving public health evidence that existed in early 2020.
Federalism and the structure of the country
The case also raises broader constitutional questions about national cohesion. In Reference re Secession of Quebec, [1998] 2 S.C.R. 217, the Supreme Court recognized underlying constitutional principles, including federalism and the importance of maintaining a stable national framework.
Mobility across provincial lines is central to that framework. If provinces can close themselves off, even temporarily, it invites reflection on the long-term implications for national unity and economic integration. From this perspective, the issue is not solely about individual rights. It also touches on how the country functions as a connected whole.
Judicial scrutiny during emergencies
Another area for reflection concerns the level of deference courts should show when governments act in response to emergencies. In times of crisis, governments must often make decisions quickly and with incomplete information. At the same time, constitutional protections are intended to remain meaningful even under pressure.
In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the court reaffirmed the importance of careful justification and disciplined reasoning when legal rights are affected. That principle has particular resonance in emergency contexts, where there is a risk that broad measures may be accepted with less scrutiny than they might otherwise receive.
A principled concern is that exceptional circumstances can gradually expand the space for limits on rights. The Charter is designed to operate in difficult times, not only in ordinary ones.
Conclusion
Taylor v. Newfoundland and Labrador stands as an important decision on the limits of mobility rights in a period of national crisis. The court recognized that a breach of s. 6 had occurred but concluded that the infringement was justified under s. 1. That outcome reflects the extraordinary context of the early pandemic and the vulnerability of the province at that time.
At the same time, the case invites continued constitutional reflection. The framework set out in R v. Oakes, and supported by decisions such as Hutterian Brethren, Dagenais, RJR-MacDonald and Reference re Secession of Quebec, provides a principled basis for examining whether the restriction truly represented the least impairing and most proportionate response available.
Even in emergencies, the strength of a constitutional system is measured by how carefully it protects fundamental freedoms. The ongoing discussion surrounding this decision highlights how difficult that balance can be and why it remains an issue of lasting importance.
After completing his LLB at the University of East London, Tega Adjara pursued a specialized LLM in international law and the global economy. Currently, he is working for the Alberta government sentencing department.
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