Focus On
No airplanes sign

Is Canada’s flight ban constitutional?

Wednesday, November 17, 2021 @ 12:54 PM | By Khatidja Moloo-Alam and Jonathan Green


Khatidja Moloo-Alam  %>
Khatidja Moloo-Alam
Jonathan Green %>
Jonathan Green
Effective Oct. 30, 2021, any traveller over 12 years of age either had to be fully vaccinated against COVID-19 to board a domestic or international flight in Canada or obtain a negative COVID-19 molecular test within 72 hours of their scheduled flight (see: R v. Nikal, [1996] 1 S.C.R. 1013 at para 96). After a one-month short transition period, travellers may no longer show a valid COVID-19 test.

Starting Nov. 30, 2021, travellers must be vaccinated against COVID-19 to board a flight in nearly every airport in Canada. If you are not vaccinated with the Pfizer, Moderna, AstraZeneca or Johnson & Johnson vaccine, you cannot board a flight in Canada. By consequence, foreign nationals in Canada who have been vaccinated with a non-Health Canada approved vaccine, would be unable to leave Canada.

From the requirement to quarantine at home for up to 14-days upon entry into Canada, to the requirements for air travellers to quarantine for up to three days, at their own expense, at government approved accommodations, the Canadian government’s actions to slow the spread of COVID-19 over the past year and a half have been the source of many headlines.

While the vast majority (83 per cent) of Canadians supported these measures, a small, vocal minority of Canadians rejected them. Some even claimed that these measures infringed on their rights articulated in the Canadian Charter of Rights and Freedoms (Charter). While some aggrieved individuals have brought legal claims to court, all of these applications have been dismissed. Most recently, in Spencer v. Canada (Health), 2021 FC 621, Chief Justice of the Federal Court, Paul Crampton, held that measures related to government approved accommodations, designated quarantine facilities and testing requirements do not violate any part of sections 6(1), 7, 8, 9, 10(1)(b), 11(d), 11(e) or 12 of the Charter.

At this point, nearly all eligible Canadians have been vaccinated, resulting in lower infection rates, hospitalizations and severe outcomes from COVID-19. Further, the hotel quarantines and the at-home quarantine for vaccinated travellers have been removed completely. And, at last, the Canadian border has opened up to individuals who are fully vaccinated by a Health Canada approved vaccine.

There is also good news for foreign nationals who wish to come to Canada, as Immigration, Refugees and Citizenship Canada (IRCC) is preparing to welcome over 400,000 new permanent residents in each of the next three years (to meet their goals outlined in the 2021-2023 Immigration Levels Plan).

While many of the immigration travel restrictions and policies imposed as a result of the pandemic are being removed and altered, the flight ban, coming into effect in two weeks, is arguably Canada’s strictest border-related policy yet.

Constitutionality of the Canadian flight ban

The most relevant section of the Charter to consider is s. 6(1):

Mobility Rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Ostensibly, the flight ban appears to breach section 6(1) of the Charter. However, restrictions have always existed to enter and exit Canada. The Supreme Court has stated, in obiter, that it is not an infringement on one’s mobility rights to present a passport to enter Canada. Public Safety Canada also operates a Passenger Protection Program, whose purpose is to ensure individuals who may post a threat to air security are subject to additional screening or banned from boarding a flight. The Secure Air Travel Act (SATA), colloquially known as Canada’s “No Fly List,” also restricts the ability for travellers to board flights if there are reasonable grounds to believe they are a threat to public safety, national security or are likely to commit an act of terrorism. Lastly, unruly passengers are denied boarding on a regular basis in Canada without any constitutional concerns.

While there is a constitutional basis for denying certain passengers the right to fly, is vaccination status a valid reason?

The Supreme Court of Canada has presented examples of the type of conditions imposed to exit or enter the country that could infringe on one’s constitutional rights in R v. Nikal:

The situation presented in this case pertaining to s. 35 aboriginal rights is analogous to the mobility rights guaranteed under s. 6(1) of the Charter…

[…]

Even a simple licence could constitute an infringement if it could only be obtained with great difficulty or expense. [Emphasis added.]

It would be surprising for a court to view vaccination as a great difficulty or a great expense. Vaccinations are free for all residents of Canada and are one of the easiest and quickest health measures an individual can take to protect themselves against COVID-19.

It remains an open question whether a significant restriction on leaving the country would be held as an infringement on the mobility rights of Canadians listed in s. 6(1). It is very possible that courts would uphold these possible infringements as reasonable.

Reasonable limits on constitutional rights

Taylor v. Newfoundland and Labrador 2020 NLSC 125 provides a timely judgment of when infringements on s. 6(1) of the Charter may be demonstrably justified in the age of COVID-19. This act empowered the Chief Medical Officer of Health to restrict travel to or from the province or an area within the province and was held to be rationally connected to the objective of controlling the spread of COVID-19 across provincial and territorial lines.

Taylor held that the section of the Public Health Protection and Promotion Act (PHPPA) that restricted travel was minimally impairing, giving deference to the determination of the Chief Medical Officer of Health, and whose positive effects outweigh its deleterious effects. While not directly related to the Canadian border, the judgment in Taylor serves as the most comparable case to the upcoming flight ban and the COVID-19 pandemic. It has yet to be seen how higher courts may interpret the Taylor decision.

Courts have offered considerable deference to public health officials during the COVID-19 pandemic, recognizing the serious nature of the pandemic and the important role that governments play in protecting their citizens and residents. In Spencer, supra Chief Justice Paul Crampton presents context to why these measures are enacted:

[1] The COVID-19 pandemic has wrought much death and suffering in Canada and abroad. This has called for extraordinary measures from our governments as well as great sacrifices by one and all.

In Taylor, Justice Donald Burrage similarly recognizes the impact of the COVID-19 pandemic:

[1] It is difficult to overstate the global impact of ... COVID-19. Since first identified in Wuhan, China, it has claimed the lives of close to one million people worldwide, almost ten thousand in Canada alone, hospitalized many times that number, and left entire economies shaken. To date, there is no known cure, no effective treatment and no vaccine. The impact of COVID-19 continues to be felt on international, national and regional levels, as governments implement public health measures in an effort to control the spread of the virus.

The pandemic in Canada is very different today than it was in May of 2020 when Taylor was decided. Even Spencer, which is a more recent case, was decided in a different COVID-19 atmosphere. There were fewer effective treatments and no widespread vaccination campaign against COVID-19. The public has both today.

Nearly 85 per cent of the eligible population in Canada is vaccinated. An analysis of whether the Charter limit is reasonable may render a different result in a time where the risks of flying and community spread are significantly lower.

Many questions remain related to the flight ban. Will courts continue to view the objective of the flight ban as pressing and substantial? It is unclear whether the measure minimally impairs s. 6(1) mobility rights. Testing prior to air travel, or incentives to promote vaccination, could be considered by a court to be less impairing than the flight ban.

Then again, mandates have proven very successful at increasing the number of people vaccinated across industries. For complex problems like incentivizing vaccination rates and stopping the transmission of airborne viruses, considerable deference is afforded to government actors when enacting reasonable measures.

Canada’s flight ban is the most vulnerable COVID-19 measure (re: potential Charter infringement), to date. Time will tell whether the ban is able to withstand a legal challenge which may come its way.

Khatidja Moloo-Alam and Jonathan Green are immigration lawyers at Green and Spiegel LLP.

Photo credit / Holy Polygon ISTOCKPHOTO.COM

Interested in writing for us? To learn more about how you can add your voice to
The Lawyer’s Daily, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437-828-6772.