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Freezing Out Our Southern Neighbours: COVID-19 Travel Restrictions in Canada’s Arctic

By | Article
July 21, 2020
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View of city in the winter

Given the lack of medical resources in the North, the Canadian Arctic is especially vulnerable to the spread of COVID-19, so travel in and out of the region has been temporarily restricted. Photo: Emily Tsui

To limit the spread of COVID-19, governments across the world and in Canada have enacted travel restrictions. In Canada’s Arctic regions, these restrictions are a success story, as no COVID-19 related deaths have occurred in all five of Canada’s Arctic jurisdictions.1) However, these travel restrictions raise fundamental questions relating to individual rights and freedoms, and Canada’s status as a federation.

On 20 May 2020, Kim Taylor and the Canadian Civil Liberties Association (CCLA) filed an application in the Supreme Court of Newfoundland and Labrador (N&L) challenging the legality of the governments’ travel restrictions. These restrictions barred Taylor, a Nova Scotian resident, from entering N&L to attend her mother’s funeral.2) Similar travel restrictions exist across Canada’s Arctic region, barring more than 100 people from entry to the North.3) The CCLA has expressed legal concerns for travel restrictions in Yukon,4) the Northwest Territories (NWT),5) and Nunavut.6) It is possible that similar challenges to travel restrictions could occur across the Canadian Arctic. 

This article discusses the rationale, forms, and legality from a domestic law perspective, of travel restrictions relating to COVID-19 in Canada’s five Arctic jurisdictions. This region includes Canada’s three territories (Yukon, NWT, and Nunavut), as well as the northern regions of two of Canada’s provinces (Nunavik in Québec and Nunatsiavut in N&L). It shows that the legal status of these travel restrictions is unclear. Arctic governments have strong arguments to defend these restrictions because of unique circumstances facing the Arctic region and the nature of this global pandemic. Given that responses to COVID-19 change daily, this article reflects information available as of 6 July 2020. 

Why Travel Restrictions in the Arctic Region Matter

Public health officials around the world agree that travel restrictions are justified to slow the spread of COVID-19 and provide governments time to prepare a response to the virus.7) At the same time, travel restrictions have real impacts on an individual’s physical and mental health, family ties, the economy,8) the rights of Indigenous peoples, and the intrinsic value of the freedom of mobility. 

The circumstances of the Arctic region magnify both the necessity of travel restrictions and their consequences. The North faces greater healthcare capacity problems compared to southern Canada.9) Contact with medical doctors is lower in Nunavut, NWT,10) and Yukon11) than the average in southern Canada. As of 17 March 2020, Nunavut has seven ventilators for its population of over 38,000 (many of whom live in remote, fly-in only communities).12) These ventilators are in the territory’s only hospital located in Iqaluit, which has no intensive care unit beds.13) At a local level, in Kangiqsualujjuaq, Nunavik (Northern Québec), for example, there is no local X-ray machine, and residents showing respiratory illness symptoms must be flown to Kuujjuaq for examination.14) Travel restrictions limit the number of people entering the region, which minimizes strains on the healthcare system.

The costs of maintaining this policy are real. Iqaluit Mayor Kenny Bell stated this succinctly: “Northerners, we’re used to being isolated. That part isn’t really the big thing. But we do like to gather.”15) Limitations imposed on travel between communities means that social and family support is weakened, which are fundamental to protecting mental health.16) This complicates attempts to reduce suicide rates in the Northern regions, which are almost three to five times higher than the national average.17) Furthermore, efforts to preserve interest in traditional culture among Northern youth, such as the Arctic Winter Games, are on pause due to travel restrictions.18) Additionally, climate change remains a complicating factor to any policy in the North. In mid-April, coastal erosion threatened the collapse of four homes in Tuktoyaktuk, Northwest Territories,19) requiring relocation that is difficult where there are ongoing travel restrictions and persistent overcrowding in social housing.20) The next section discusses how Arctic governments have taken different approaches to finding the right balance between the necessity and the consequences of the travel restrictions. 

Types of COVID-19 Related Travel Restrictions

Three main forms of travel restrictions exist in Canada’s Arctic: international, inter-jurisdictional, and intra-jurisdictional.

International Travel Restrictions

International travel restrictions limit the movement of individuals entering and leaving Canada. The federal government has issued an emergency Order-in-Council21) under the Quarantine Act that restricts entry into Canada.22) Until at least 21 July 2020, the United States-Canada border remains closed, meaning that travel across the Alaska-Yukon border is restricted to certain individuals.23) Registered persons under the Indian Act are allowed to enter Canada,24) as well individuals who are habitual residents of a trans-border community.25) No entry restrictions exist for Canadians returning to Canada. 

Inter-jurisdictional Travel Restrictions

Inter-jurisdictional travel restrictions limit the movement of individuals between jurisdictions (provinces and territories) within a country. All of Canada’s five Arctic jurisdictions have barred non-residents of the jurisdiction from entering at some point during the outbreak of COVID-19. Apart from Québec, these restrictions remain in various degrees. However, Yukon and British Columbia have created a “travel bubble” allowing residents of both jurisdictions to move freely, effective 1 July 2020.26) As of 3 July 2020, a travel bubble also exists for residents of Atlantic Canada.27) NWT and Nunavut plan to create a similar “travel bubble.”28) These restrictions are enacted as part of a jurisdiction’s declaration of a public health emergency, and are currently the following:

  1. Yukon: As of 1 July 2020, all residents of Canada are allowed to enter into Yukon, but must self-isolate for 14 days, unless they are residents of the other territories or British Columbia.29) Previously, the Border Control Measures Order issued 17 April 2020 under the Civil Emergency Measures Act prohibited entry into Yukon by non-residents.30) 
  2. NWT: The COVID-19 Travel Restrictions and Self-Isolation Protocol issued 21 March 2020 under the Public Health Act prohibits entry into NWT by non-residents or those with exceptional circumstances.31) 
  3. Nunavut: The Travel Restriction Order issued 20 March 2020 under the Public Health Act prohibits entry into Nunavut by non-residents. Anyone approved to enter Nunavut must undertake a 14-day isolation period in either Ottawa, Winnipeg, Edmonton, or Yellowknife.32)
  4. Québec: No formal order was issued that prohibits entry into Québec of non-residents, but roadside checkpoints were placed at the Gatineau-Ottawa border in April (now withdrawn).33) Health officials still recommend against non-essential movements into and out of Québec.
  5. N&L: The Special Measures Order issued 15 May 2020 under the Public Health Protection and Promotion Act prohibited entry into N&L of non-residents.34) However, residents of Atlantic Canada are now permitted to enter without mandatory self-isolation.35)

Intra-jurisdictional Travel Restrictions

Intra-jurisdictional travel restrictions limit the movement of individuals between communities within a jurisdiction. All of Canada’s five Arctic jurisdictions have implemented these restrictions at some point during the COVID-19 outbreak. Where no formal restriction exists, governments strongly discourage visit to these regions.

  1. Yukon: No formal restrictions have been placed for travel into remote areas, although Yukon’s Chief Medical Officer of Health advice of suspending non-essential travel to Yukon’s rural communities remains in effect as of 22 March 2020.36)
  2. NWT: No formal restrictions have been placed for travel into remote areas. However, travellers arriving in NWT must self-isolate for 14 days in either Yellowknife, Inuvik, Hay River or Fort Smith prior to continuing on to other communities.37)
  3. Nunavut: Effective 1 June 2020, all in-territory travel advisories restricting access between communities have been lifted.38)
  4. Québec: The Order issued 28 March 2020 under the Public Health Act restricts access to Nunavik.39) For almost two months, travel between communities in Nunavik was prohibited, but this restriction is now lifted.40)
  5. N&L: There were restrictions placed on travel between Labrador Inuit Settlement Areas and the rest of the province. These are now lifted.41)

Exemptions

Exemptions exist to each of the three types of travel exceptions. Individuals exempted from these travel restrictions include critical workers and those exercising their treaty rights for a limited duration.42) Individuals who are denied entry can appeal the decision to the government.43)

Legality of COVID-19 Related Travel Restrictions

The discussion above shows that there is no uniformity of travel restrictions across the Arctic region. The legality of each restriction depends on its specific wording and the individual circumstances of jurisdictions.44) This section discusses the legality of the common themes of the travel restrictions on three issues: compliance with the Canadian Charter of Rights and Freedoms (Charter),45) the constitutional distribution of legislative powers in a federation, and Indigenous rights. The uniqueness of the Arctic is primarily relevant to Charter issues. On federalism issues, a division of powers analysis reveals that there is no analytical difference between jurisdictions located in the Arctic or in the south.46) On Indigenous rights, the international border restrictions may pose some issues for certain Indigenous persons, but nonetheless generally respect these rights. Of the three types of travel restrictions, the inter-jurisdictional travel restrictions raise most questions of its legal status.

International Travel Restrictions

The federal government’s current restrictions on international travel are likely in conformity with both the Charter and the constitution, but they raise potential challenges for the rights of certain Indigenous persons.

Charter Issues

All levels of government in Canada– federal, provincial, and municipal– must act in conformity with the Charter. The relevant provision is section 6(1) of the Charter, which states:

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

Section 6(1) is clear by omission that for international travel, the federal government has the right to restrict non-citizens and permanent residents from entering Canada. Current travel restrictions by the federal government comply with this provision, as Canadian citizens are still welcome to return, remain, and leave Canada. 

Federalism Issues

Canada is a federation of provinces and territories. Sections 91 to 95 of the Constitution Acts, 1867 outlines the division of powers between the federal government and provinces.47) Similar provisions exist for the territories in section 18 of the Yukon Act,48) section 18 of the Northwest Territories Act,49) and section 23 of the Nunavut Act.50) Section 91(11) gives the federal government exclusive legislative authority over quarantine, and this power formed the basis of the Quarantine Act 2005.51) The Quarantine Act permits the federal Cabinet to impose travel restrictions on entry into Canada. As such, the federal government’s international travel restrictions are within its powers. 

Indigenous rights

The travel restrictions largely conform with the federal government’s obligations to the Indigenous peoples. Section 35 of the Constitution Act, 198252) guarantees protection of Aboriginal and treaty rights of Aboriginal peoples of Canada.53) In the Arctic region, this means that the federal government must uphold its obligations under land claims agreements and treaties such as the Gwich’in Comprehensive Land Claims Agreement (GCLA).54) The GCLA defines Gwich’in as people of Gwich’in ancestry or those adopted under Gwich’in custom or laws of any jurisdiction.55) The GCLA grants harvesting rights of certain wildlife, such as fish or migratory game birds, to the Gwich’in irrespective of their citizenship.56) 

The current federal regulations permit Canadian citizens, persons registered under the Indian Act and residents of an “integrated trans-border community” carrying out an everyday function to enter into Canada. In practice, these provisions would apply to most Indigenous peoples in the Arctic as Canadian citizens. However, the regulations leave “integrated trans-border community” undefined, creating an uncertain application to Indigenous persons belonging to groups with large territories in both Canada and the US, such as Gwich’in with US citizenship residing in Alaska. Without an exception to the federal border restrictions for those exercising treaty rights, Gwich’in with US citizenship residing in Alaska would possibly be unable to harvest wildlife in Yukon as outlined in the GCLA. Whether or not this restriction violates Section 35 of the constitution depends on the outcome of the appeal to the Supreme Court of Canada (SCC) in R v Desautel.57)

Alternatively, if the SCC finds that this restriction does not violate Section 35, it might be possible in the future to make an argument under the 1794 Jay Treaty.58) The 1794 Jay Treaty states that Indigenous peoples in Canada and the US can cross the border freely, but the SCC has ruled that this Treaty currently has no application to Canada, meaning that there is no right for American Indigenous people living in the US to come to Canada.59) However, if Canada decides to implement the United Nations Declaration of the Rights of Indigenous Peoples60) and enact it as legally binding in domestic law,61) it is possible that this freedom of movement could be enshrined, either by recognizing the continuing validity of the Jay Treaty,62) or by creating an independent right of Indigenous peoples to maintain relationships across borders.63) 

Inter-jurisdictional Travel Restrictions

The legal status of the Arctic jurisdictions’ travel restrictions is less clear, as strong arguments exist for and against striking down these regulations.

Charter issues

The legality of inter-jurisdictional travel restrictions from a Charter perspective is complicated due to the broad wording in section 6(2), the existence of a global pandemic, and unique circumstances facing the Arctic region. Section 6(2) and 6(3) of the Charter guarantees the inter-jurisdictional movement of individuals, subject to local laws. These provisions state: 

6 (2) 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.

6 (3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

On the face of it, the various travel restrictions hinder the rights of citizens and permanent residents from moving to and taking up residence in the five Arctic jurisdictions, and discriminate based on the individual’s residency. For example, the restrictions in Nunavut are applicable to those with an Ontario resident status, but are not applicable to those with a Nunavut resident status. The purpose of section 6 of the Charter is to facilitate a political and economic union, which necessitates freedom of mobility.64) However, the Charter does not state that individuals have a right to unlimited mobility at any time and for any purpose. Most of the travel restrictions appear temporary in nature, and the laws use language referencing an emergency.65) This suggests that individuals can exercise their mobility rights at a later date. Furthermore, as Professor MacKay at Dalhousie University points out, the Charter is silent on whether the freedom of mobility applies for all purposes of travel, such as social contacts or tourism.66) Non-resident individuals still can enter the Arctic jurisdictions if they qualify under one of the many exceptions. 

If a court finds that an individual’s section 6(2) rights have been infringed, the court proceeds to examine whether that infringement is justified under section 1 of the Charter. Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

A rights infringement, whether the right is the freedom of mobility in section 6 or another right, may be justified if the law is rationally connected with the objective, a minimal impairment of the individual’s rights, and proportionate in terms of salutary and deleterious effects.67) Travel restrictions are a rational response to limiting the spread of COVID-19 by controlling the number of potential carriers to the jurisdiction. 

Travel restrictions may not be a minimal impairment of the freedom of mobility, as there are arguably less rights-impairing means to achieve the objective “in a real and substantial manner,” the standard required by Canadian case law.68) For example, a more minimally impairing response would modify Nunavut’s policy to also allow non-residents to undertake a 14-day quarantine in one of the designated southern cities prior to entering Nunavut. Alternatively, a 14-day quarantine for non-residents could occur in a designated Northern city, as modifying NWT’s existing policy would allow. The mandatory quarantine could be at the expense of the visitor. 

However, Northern governments might be able to successfully argue that the unique healthcare challenges of the Arctic region, as outlined above, means that these alternatives are unacceptably risky in potentially causing an outbreak of COVID-19 to the North.69) The large number of cases in Ontario and Québec70) means that there is a high possibility that travellers could be infected with COVID-19 without knowing, or contract it while in transit to the North. An outbreak in Nunavut, where there are few ventilators and hospital beds, would be devastating. 

Similar arguments and counter-arguments exist in balancing the salutary and deleterious effects. The benefit of travel restrictions is clear: there has been no COVID-19 related death in the Arctic region. At the same time, the consequences for the individual’s health, the economy, and the status of Canada as a federation are serious concerns that might justify striking down travel restrictions.

On the balance, courts will probably show deference to the governments’ policies of travel restrictions throughout the courts’ section 1 analysis. COVID-19 is an exceptional pandemic that requires swift responses from governments, which are balancing the considerations mentioned above. In Hutterian Brethren, the SCC stated that on complex social issues: “Where a complex regulatory response to a social problem is challenged, courts will generally take a more deferential posture throughout the s. 1 analysis than they will when the impugned measure is a penal statute directly threatening the liberty of the accused.”71) A similar logic applies to travel restrictions in the Arctic region.

Federalism issues

The Constitution Act, 1867 is silent on inter-jurisdictional mobility of individuals. Depending on how the laws related to travel restrictions are characterized, they can fall within or outside the competence of provincial and territorial governments.

If the regulations are characterized as health regulations, they would fall under the exclusive powers of provinces and territories to manage hospitals under section 92(7) of the Constitution Act, 1867, section 18(1)(s) of the Yukon Act and the Northwest Territories Act, and section 23(h) of the Nunavut Act. In addition, direct delivery of most medical services72) would fall under the powers of legislating property and civil rights(Section 92(13) of the Constitution Act, 1867; Section 18(1)(j) of the Yukon Act and Northwest Territories Act; and Section 23(1)(l) of the Nunavut Act.)) or matters of merely local or private nature.73) Each of the preambles of the relevant order establishing travel restrictions explicitly cites the COVID-19 pandemic as a justification for these measures.

Alternatively, if the regulations interfere with the federal government’s exclusive competence to regulate trade and commerce across inter-jurisdictional borders under section 91(2) of the Constitution Act, 1867, then the travel restrictions will be beyond the scope of the provincial and territorial powers, and therefore rendered unconstitutional.

In Canada v Vavilov, the SCC stated that no deference will be given to governments if the legislation is unconstitutional from a division of powers standpoint.74) However, an exception may be made for the federal government in cases of an emergency if the law is for the peace, order, and good government of Canada as permitted under section 91 of the Constitution Act, 1867.75)

Indigenous rights

The territories have granted an exemption from travel restrictions for any individual, regardless of residency, to exercise their Aboriginal or treaty right to harvest in the territory, provided those persons do not travel to a community or populated area of the territory.76) This exemption conforms to section 35 of the constitution and various other land claims settlements in a limited manner, as these exemptions only exist for the right to harvest, and not other rights relating to religion, culture, or development. 

In contrast, N&L has not granted similar exemptions.77) Provinces are required to respect section 35 of the constitution, and cannot infringe those rights without justification.78) Given that all the territories have an exception made to respect Aboriginal and treaty rights, N&L would have difficulty justifying its infringement.

Intra-jurisdictional Travel Restrictions

From the perspective of Charter rights, the legality of intra-jurisdictional travel restrictions is highly dependent on the content of the restriction in each jurisdiction. From a federalism perspective, in general, these travel restrictions are within the jurisdiction’s competence. 

Charter issues

Intra-jurisdictional travel restrictions engage other rights enumerated in the Charter. These rights include freedom of peaceful assembly in section 2(c); freedom of association in section 2(d); the right to life, liberty, and security of person in section 7; the right to be secure against unreasonable search and seizure in section 8; and others. Travel restrictions have the potential to infringe each of these rights. For example, the Kativik Regional Government placed a ban on travel between communities in Nunavik for nearly two months.79) This effectively stopped people from exercising their right to assemble peacefully for funerals or celebrations across communities, even though alternatives existed, such as maintaining physical distance from other guests. It is therefore possible that Charter rights have been infringed.80) However, like with freedom of mobility discussed above, governments can make compelling arguments to justify these infringements because of healthcare limitations in remote areas. 

Federalism issues

It is unlikely that this type of travel restriction, which deals with movement exclusively within the borders of the Arctic jurisdictions, is problematic from a division of powers perspective between the federal and provincial or territorial government. Provinces and territories exclusively legislate property and civil rights, and matters of local nature. Controlling the spread of COVID-19 within a province through travel restrictions likely fall under this power.

Indigenous rights

Restrictions on inter-community travel are imposed by the territorial governments. The legality of these travel restrictions to restrict movement within their lands is dependent on the specific provisions of individual land claims treaties. Evaluating the legality of each of these restrictions is beyond the scope of this article given the number of land claims treaties.81) 

In Québec and N&L, the limitations on inter-community travel imposed by the governments in Nunavik and Nunatsiavut is an exercise of their self-governance rights on issues relating to health and local matters.82)

Conclusion and Looking Ahead

At the time of writing, the success of keeping the COVID-19 pandemic away from Arctic jurisdictions has meant that there is a trend towards slowly relaxing travel restrictions in the region. However, with some epidemiologists predicting a second wave in the fall, this trend could be quickly reversed.83) Consequently, a legal assessment on existing measures is helpful to determine what form and scope of future measures is legally permissible under Canada’s constitution. 

Emily Tsui is a Juris Doctor/Master of Global Affairs candidate at the University of Toronto. The author would like to thank Laurent Smeets, Su Rao, and the two anonymous reviewers for their help in the publication of this article.

References[+]

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