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So there's this legal question: with Alberta in a giant COVID catastrophe, and slow to act, can BC close its border to protect itself? Similarly can Manitoba's neighbours do so?
Can a province legally close border for health reasons? YES. I'll explain why in this thread.
Can a province legally close border for health reasons? YES. I'll explain why in this thread.
There are two constitutional considerations: (1) federalism, in the 1867 Constitution Act, and (2) human rights, in the 1982 Charter of Rights and Freedoms. Let's take them in turn.
On federalism: both the provincial and federal governments have constitutional powers to close provincial border. In other words, they have concurrent, overlapping jurisdiction, and either can do it.
Section 91(11) of the Constitution Act, 1867, gives the feds jurisdiction over "Quarantine". That's pretty clear, so if Parliament (or a Minister delegated by Parliament) wants to quarantine a whole province at the border, that's allowed. BUT... https://laws-lois.justice.gc.ca/eng/const/page-4.html#h-18
So too a province. Section 92(16) is a blanket power for "Generally all Matters of a merely local or private Nature in the Province", and s. 92(14) covers "Civil Rights in the Province". So a province can act to keep COVID out of its locale, even if that hurts civil rights.
In other words, there is multiple access to the border closure problem from both the federal and provincial side. The problem has a double aspect, as both a quarantine issue federally, and a local and civil rights issue provincially. Either can act to shut a provincial border.
(That last tweet was a nerdy law joke. The Supreme Court case which is famous for the "double aspect" rule in constitutional law--the rule that says the feds and the provinces can share jurisdiction concurrently--is named "Multiple Access". Sorry.) https://en.wikipedia.org/wiki/Multiple_Access_Ltd_v_McCutcheon
So if BC wants to close its border to travellers from Alberta for bona fide reasons of protecting residents of BC from COVID, constitutionally that's fair game.
BC could ask Ottawa to do it--indeed, Premier Horgan has--but if Ottawa refuses, BC certainly can act on its own.
BC could ask Ottawa to do it--indeed, Premier Horgan has--but if Ottawa refuses, BC certainly can act on its own.
That wraps up our federalism piece.
But there's stillthe human rights piece, specifically s. 6 of the 1982 Charter of Rights and Freedoms, which gives Canadians the right to mobility within Canada. Is that violated by BC closing its border with Alberta?
But there's stillthe human rights piece, specifically s. 6 of the 1982 Charter of Rights and Freedoms, which gives Canadians the right to mobility within Canada. Is that violated by BC closing its border with Alberta?
Section 6 reads in part:
"Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:
(a) to move to and take up RESIDENCE in any province; and
(b) to pursue the gaining of a LIVELIHOOD in any province. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art6.html
"Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:
(a) to move to and take up RESIDENCE in any province; and
(b) to pursue the gaining of a LIVELIHOOD in any province. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art6.html
Note the two words I've put in caps: taking up "residence", and gaining a "livelihood".
The mobility right in the Charter exists if a traveller fits into one of these categories only. A casual traveller coming for a social visit or tourism, say, has no right to enter BC.
The mobility right in the Charter exists if a traveller fits into one of these categories only. A casual traveller coming for a social visit or tourism, say, has no right to enter BC.
But there is more. Even a worker crossing the border for a livelihood could be kept out.
Why? Because one's s. 6 Charter right is not absolute, and under s. 1, it is subject to "reasonable limits ... [that] can be demonstrably justified in a free and democratic society".
Why? Because one's s. 6 Charter right is not absolute, and under s. 1, it is subject to "reasonable limits ... [that] can be demonstrably justified in a free and democratic society".
It is pretty easy for BC to justify limiting the s. 6 mobility right, if doing so prevents a giant epidemic in Alberta spilling over into BC.
Right now, BC's got HALF the case incidence of Alberta, so demonstrating the risk of spillover is a no-brainer.
Right now, BC's got HALF the case incidence of Alberta, so demonstrating the risk of spillover is a no-brainer.
Scientifically, I think provinces should close their borders when they have a bad, COVID-infested neighbour.
New Brunswick learned that months ago: it closed the border, and good thing too, because now Quebec's case incidence is THIRTY TIMES higher. Deaths even more so.
New Brunswick learned that months ago: it closed the border, and good thing too, because now Quebec's case incidence is THIRTY TIMES higher. Deaths even more so.
In fact, the only real COVID success Canada has is in the Maritimes, which closed their borders pretty tightly, and with few exceptions.
In a stunningly insensitive move, the Canadian Civil Liberties Association sued Newfoundland over that--and they deservedly lost.
In a stunningly insensitive move, the Canadian Civil Liberties Association sued Newfoundland over that--and they deservedly lost.
That case is called Taylor. The Supreme Court of Newfoundland found that closing the provincial border infringed s. 6 of the Charter, but justified it as a reasonable disease control measure under s. 1. So the border closure was upheld under the constitution.
In fact, the judge called it "entirely logical to put measures in place to control the spread of COVID-19 from an area of high infection to an area of low infection".
You don't need to be a lawyer or scientist to see the sense in that. https://www.canlii.org/en/nl/nlsc/doc/2020/2020nlsc125/2020nlsc125.html?resultIndex=1
You don't need to be a lawyer or scientist to see the sense in that. https://www.canlii.org/en/nl/nlsc/doc/2020/2020nlsc125/2020nlsc125.html?resultIndex=1
This isn't new law. Almost 70 years ago, the Supreme Court ruled "that a province cannot prevent a Canadian from entering it except, conceivably, in temporary circumstances, for some local reason as, for example, health".
Like in a pandemic, eh? https://www.canlii.org/en/ca/scc/doc/1951/1951canlii2/1951canlii2.html
Like in a pandemic, eh? https://www.canlii.org/en/ca/scc/doc/1951/1951canlii2/1951canlii2.html
To sum up:
It's logical to close some borders inside Canada, as the Maritimes have done with great success. The Constitution does not forbid it, and rather, the Supreme Court okayed it decades ago. Either a province can do it, or the feds. Each can choose.
* fin *
It's logical to close some borders inside Canada, as the Maritimes have done with great success. The Constitution does not forbid it, and rather, the Supreme Court okayed it decades ago. Either a province can do it, or the feds. Each can choose.
* fin *
