Sujit Choudhry Discusses The Constitutionality of Travel Restrictions in British Columbia
The COVID-19 pandemic continues to affect those in all 13 Canadian provinces and territories. To date, the virus is responsible for more than 789,000 infections and more than 20,000 Canadian deaths. While Canada has been lauded for its rapid response and tight restrictions, provinces and territories have been given some latitude by Prime Minister Justin Trudeau to make decisions regarding the pandemic, especially as it affects travel within Canada. Some provinces, such as Labrador and Newfoundland have prohibited travelers from other parts of Canada for any reason, even to travel to and from work. Other provinces, such as British Columbia have discouraged inter-provincial travel, but have stopped short of banning travelers from other provinces.
Current travel restrictions in British Columbia
As the COVID-19 pandemic continues with no end in sight, health authorities in British Columbia are increasingly concerned about Canadians traveling from other provinces into BC. A "no travel" recommendation has been in place since last November, but the government has stopped short of a mandate.
That's because British Columbia Premier John Horgan and the provincial lawyers have concluded that it would be illegal to ban travelers from other Canadian provinces from entering British Columbia, especially if they are employed within the territory. Says Horgan, "The review of our legal options made it clear we can't prevent people from traveling to British Columbia. We can impose restrictions on people traveling for non-essential purposes if they are causing harm to the health and safety of British Columbians. However, much of current inter-provincial travel is work related and therefore cannot be restricted."
But not everyone agrees with that assessment. One prominent dissenter is Sujit Choudhry, a well-regarded expert on Canadian constitutional law.
Sujit Choudhry on the current BC travel restrictions
Mr. Choudhry says he respectfully disagrees with the British Columbia premier and the prime minister. Mr. Choudhry points to the success of the so-called "Atlantic Bubble," the tight restrictions put in place by the Provinces of Labrador and Newfoundland that have been upheld by that region's Supreme Court. The same thing could work in British Columbia. Says Mr. Choudhry, "I think a set of restrictions similar to the Labrador and Newfoundland judgement would give the province quite a bit of comfort and that a carefully-drafted set of restrictions rooted in science and backed up by the best empirical evidence, that had a sufficiently-broad set of exemptions, would likely survive constitutional scrutiny".
Of course, there are different challenges to closing the provincial borders in Western Canada than there are along the Atlantic coast. For example, the provincial borders in and out of British Columbia would be more difficult to seal. One additional concern is that winter resorts in British Columbia, such as Whistler, are losing money from the absence of foreign travelers, and they would be hurt even more by not being able to host Canadian vacationers from outside of BC. What's more, the "Atlantic Bubble" provinces have a population of just 521,500, whereas British Columbia has 5.071 million residents, a nearly ten-fold difference. That increase in population means more residents with family outside the province and more people seeking employment in and outside of BC.
Another point to consider is that the Labrador/Newfoundland judgment is far from secure. The restrictions in those provinces are still facing challenges from groups like the Civil Liberties Union, among others.
Still, Mr. Choudhry has a point. World health experts agree that less contact means a lower potential for viral transmission. Banning outsider travel to BC would certainly help to support that.
About Sujit Choudhry
Sujit Choudhry is an internationally-recognized expert on constitutional law. He has published more than 100 articles and reports on the subject. Sujit's work has been cited by the Supreme Court of Canada and many lower courts throughout Canada. Born in India, Choudhry earned a Bachelor of Science degree from McGill University in Montreal and an undergraduate law degree from the University of Toronto before earning a Master of Laws degree from Harvard University. He was also a Rhodes Scholar at Oxford University in England. The former Dean of the University of California, Berkeley School of Law, Choudhry is the Director of the Center for Constitutional Transitions.