The federal government has an obligation under the Canadian Charter to ensure that citizens who have symptoms of COVID-19 can go home.
(This article has been translated into French.)
As part of its response to the COVID-19 pandemic, the federal government, unfortunately, has adopted an act that denies the right of some Canadians to enter the country, a right guaranteed by s. 6 (1) of Canada’s Charter of Rights and Freedomss.
On Monday, March 16, the Canadian government asked airlines to take steps to prevent all foreign travelers showing symptoms of COVID-19 to get on a plane flying to Canada. These steps apply to all those who seek to return to Canada, including more than 3 million Canadians abroad at any given time.
To enforce this new policy, the Minister of Transportation, on March 17, issued a temporary order under Aeronautical Law said that airlines “must conduct” health checks and prohibit airlines from allowing anyone suspected of having a sign or symptom of COVID-19 to board. In conducting a health check, the operator must rely on questions from the World Health Organization (WHO) document which offers guidance for the management of sick travelers at the point of entry.
However, here, the government requires airlines to ask these questions before the plane departs from a foreign country.
People who are prohibited from boarding planes cannot fly for at least 14 days unless they have a medical certificate stating that the symptoms are not related to COVID-19. Presumably, they can be rejected again if they still have symptoms. In addition, the risk is 14 days later, they can no longer leave the country because there are no flights available or because the country has closed its borders.
Section 6 (1) of Canada’s Charter of Rights and Freedomss stated that “Every Canadian citizen has the right to enter, remain, and leave Canada.” Since March 19, citizens have refused to board flights at the request of the federal government to no longer be able to use this right effectively. S. 6 is one of the few provisions in Charter that the Parliament or provincial legislative body cannot reduce by using the clause provided by s. 33 from Charter. However, the government can justify the limitations for Charterprotected rights according to s. 1 Charter if these boundaries can be “clearly demonstrated in a free and democratic society.”
Before looking further into the constitutionality of this provisional order, it is worthwhile examining other laws that address the type of situation we are facing to fully appreciate how extraordinary this measure is.
First, Canada’s prohibition of returning to their country was not clearly contemplated by Parliament when adopting Emergency Law in 1988. That Act provides four types of emergencies. What applies to the COVID-19 situation is the “Public Welfare Emergency,” which authorizes only “rules or restrictions on traveling to, from or in certain areas” in Canada for everyone: Canadian citizens, permanent residents or foreign nationals. Even the declaration “International Emergency” (the other of the four types of emergencies below Act) to deal with the real or imminent use of force or serious violence, does not permit the government to refuse entry into Canadian citizens. For international emergencies, the government can arrange or prohibit “travel outside Canada by a Canadian citizen or permanent resident and entering Canada by someone else. “
As for Quarantine Actions, adopted in 2005, one of the provisions granting power to the Governor in the Council to prohibit a certain period of time “entry into Canada from any class of people who have been in a foreign country.” However, this kind of action can only be taken if “there are no reasonable alternatives to prevent the introduction or spread of disease,” a question discussed below.
In response to the COVID-19 emergency, the government, on the recommendation of the Minister of Health, adopted Minimize the Risk of Exposure to COVID-19 in Canada Order March 18 (since updated with new orders on March 26th). It should be noted that the prohibition to enter Canada on orders 18 and 26 March is only aimed at foreigners, not Canadian citizens and permanent residents.
Returning to the constitutionality of the provisional order, the government can justify it based on s.1 Charter. However, to do that, the government has the burden of establishing 1) that the action was taken to address an urgent and substantial purpose, 2) that the action was rationally connected to the goal, 3) that the action was damaging as little as possible. rights at issue, 4) that the overall impact of actions on protected rights is not proportional to the objectives of the government.
There is little doubt that the Canadian government can meet the first two obstacles under section 1. The aim of protecting the health of the Canadian population is urgent and urgent, and that step, to prohibit travelers showing signs or symptoms of COVID-19, is rationally related this purpose. However, it is questionable whether it can fulfill the other two conditions.
This measure does not damage the rights in question as little as possible because it reaches too much and does not reach too much. It targets Canadians who show symptoms that can be indicative of COVID-19 but are also associated with many other conditions such as other types of infectious lung disease, non-communicable lung disease, common cold, or flu. The Canadian government requests that assessments be made by airline representatives, who are not medically trained to carry out such assessments. Thus, they may refuse to rise to Canadians who are not COVID-19 positive and accept some Canadian citizens who can be COVID-19 positive but show no symptoms. In addition, this action also has a bad effect on directing some travelers to hide their conditions for fear of being rejected up, as has been reported by media. Finally, critics claiming that the transfer of migration management to private operators increases the risk of abuse and discriminatory practices (racial profile).
Despite the fact that these citizens will need treatment if they are indeed COVID-19 positive, many of them can suffer from other conditions that require ongoing access to medical care and drugs, which are not given to anyone who is suddenly forced to remain live in another country.
There are alternatives that allow the repatriation of all Canadian citizens: on regular flights, airlines can isolate some citizens who show symptoms, or special flights can be arranged to repatriate these citizens. These alternatives can be expensive and require time to implement, but that alone should not be enough to justify violations of basic rights.
Regarding whether the effect on protected rights is not proportional to the objectives of the government, this step prevents vulnerable Canadians from returning to their country. Despite the fact that citizens of this country will need treatment if they are indeed COVID-19 positive, many of them can suffer from other conditions that require ongoing access to medical care and medicines. Access is not given to anyone who is suddenly forced to remain in another country, especially if this other country is or will soon face a crisis in the health sector. What is an action that affects directly the most vulnerable, and risks that do not include riding some citizens who are not COVID-19 positive while leaving others proportionate?
Of course, in an unprecedented time, we realize that there is no easy solution for many Canadians abroad who want to go home. The Canadian government has acted in recent days to bring back citizens, permanent residents and close family members who are stranded abroad. After starting with Morocco, it has expanded this operation to other countries with flights already being carried out (or being planned for) in countries such as Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Peru and Spain. This is welcome news.
However, Canadians who have suspected the symptoms of COVID-19 can still be rejected. In our view, the government is obliged not to create obstacles for the return of all its citizens. The Prime Minister rightly urges Canadians: “If you are abroad, this is the time for you to go home.” To be consistent with Canadian Charter, government messages and actions cannot leave their citizens.
This article is a part of Coronavirus Pandemic: Canadian Response special features.
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