Sujit Choudhry Weighs In On The Legality of British Columbia COVID Travel Restrictions

The Quarantine Act passed by the Canadian government imposes several conditions and restrictions for travelers entering Canada’s various provinces. Any traveler who has left Canada and returns will be required, by law, to self-quarantine for 14 days, unless they are exempt. Failure to do so can result in severe penalties, including six-month incarceration and up to a $750,000 fine. But international is not the only travel officials are worried about. With cases of new strains popping up in various parts of the world, the officials in the provinces are becoming more concerned about inter-provincial travel as well. Constitutional experts like Sujit Choudhry are also weighing in on the constitutionality of the issue.

British Columbia Inter-Provincial Travel

While Canada continues to impose restrictions on travelers re-entering the country, British Columbia has been looking to take restrictions a step further by addressing inter-provincial travel. Since November, officials in British Columbia have recommended imposing restrictions on non-essential travel to British Columbia from other provinces.

These restrictions would be similar to those that provinces on the country’s Atlantic side have previously imposed to separate themselves and protect their local citizens. But, when it comes to the province of British Columbia, certain factors make it more problematic.

One issue that British Columbia faces is the resort community destinations contained in the province. These areas, such as Whistler, are popular destinations for Canadian travelers coming from other provinces. Two of these provinces, Ontario and Quebec, have had much higher rates of COVID-19 transmission, which brings British Columbia concerns about the health and safety of their citizens by allowing travelers from other provinces to holiday in these areas.

Can the British Columbia Government Restrict Inter-provincial Travel?

While health officials from the province have strongly urged people to not travel to British Columbia from other provinces, they lack any authority to enforce it. So currently, public health officials are discouraging inter-provincial travel and reminding any travelers that they have to obey all health orders if they travel.

Premier John Horgan and the British Columbia Government have sought legal advice as to whether they could impose restrictions for traveling to British Columbia from other provinces amid concerns that British Columbia COVID cases are increasing due to travelers. They have found that they lack the authority to restrict non-essential travel to their province from other parts of the country.

If the travel for non-essential purposes is proven to cause harm to the health and safety of the citizens of British Columbia, then legal options show they may be able to add some restrictions, but as it stands, much of the travel between provinces is for work and could not be subject to any restrictions.

Since inter-provincial travel cannot be legally restricted in the country, the prime minister of Canada is now focusing on exploring more international restrictions to help slow the spread, while British Columbia and other province leaders are strongly urging their citizens not to travel unnecessarily even though it is not against the law.

Legal Expert Sujit Choudhry Weighs In

As the legality of restricting inter-provincial travel has come to the forefront of the minds of government officials in British Columbia, constitutional lawyer Sujit Choudhry feels the situation may not be as cut and dried as many government officials think. While the Premier believes they have little to no power to restrict economic travel forms into the British Columbia province, Choudhry disagrees. When explaining further, he cites the recent restrictions imposed in the Newfoundland province.

Newfoundland has issued several restrictions, not only on international travel but also on travelers from other provinces. Under the Newfoundland restrictions, travelers are not permitted to enter into the province unless they fall under the specific exemptions or meet the requirements of extenuating circumstances that the Chief Medical Office of Health has laid out.

The only people able to travel into Newfoundland are residents of Newfoundland or one of the neighboring Atlantic Provinces, essential workers, or residents of St. Pierre or Miquelon traveling for health care. Other travelers may be permitted if they fall into the exemptions that the Chief Medical Office has laid out, including permanent relocation, job loss, reuniting with immediate family, operating a business, short-term work placement, funerals, custody agreements, post-secondary education, homeownership, palliative care visits, and child care.

International travelers must be approved before entry, but approval does not guarantee entry upon arrival. If permitted entry, a 14-day self-quarantine is required. Travelers falling under one of the exemptions will be required to provide identification, a travel form, and proof of the exemption that qualifies them for travel.

Even though there are currently civil liberties challenges to the new restrictions, the Newfoundland restrictions have previously been upheld by the supreme court as enforceable.

Choudhry believes that carefully crafted restrictions similar to the ones laid out by Newfoundland, rooted in science and backed up by empirical evidence, would be a comfort to citizens in the other provinces, including British Columbia, who are already anxious about recent mutations of the virus. As long as the newly crafted restrictions included a sufficiently broad set of exemptions, Choudhry feels that the restrictions would likely stand up to constitutional scrutiny as the Newfoundland ones did and receive sufficient backing from the supreme court, allowing the province to enforce them legally.

As for now, British Columbia officials are strongly advising residents in all provinces to avoid travel to British Columbia for the safety of everyone. Still, it remains to be seen whether they will push ahead for legal enforcement in the future. For more follow Sujit’s Medium here.

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