Background
During the early weeks of the COVID-19 pandemic in spring 2020, Newfoundland and Labrador declared a public health emergency and its Chief Medical Officer of Health issued orders barring entry to all non-residents, with narrow exceptions for essential workers and residents of certain border communities. A subsequent order allowed individuals in extenuating circumstances to apply for advance exemptions. Kimberley Taylor, a non-resident, sought an exemption in May 2020 to travel to the province after her mother died unexpectedly, so that she could be with her grieving family and attend the burial. Her initial application was refused on May 8, 2020; a reconsideration request was approved on May 16, and she was eventually permitted to enter.
Despite ultimately being granted entry, Taylor and the Canadian Civil Liberties Association (CCLA) commenced proceedings seeking a declaration that the travel restrictions violated s. 6 of the Canadian Charter of Rights and Freedoms, which protects mobility rights. The application judge found that s. 6(1) guaranteed citizens a right to cross provincial borders but that s. 6(2) did not, and held the infringement of s. 6(1) was justified under s. 1. Taylor and the CCLA appealed, arguing s. 6(2) was also engaged. Before the appeal was heard, the restrictions were repealed. The Newfoundland and Labrador Court of Appeal dismissed the appeal as moot without reaching the merits.
The Supreme Court of Canada granted leave and heard argument in April 2025. Multiple attorneys general and civil liberties organizations intervened. The Court was asked to resolve whether s. 6(1) and/or s. 6(2) of the Charter protect interprovincial travel simpliciter, whether the restrictions infringed those rights, and whether any infringement was justified.
The Court’s Holding
The Court allowed the appeal in part by a 5–4 majority (Karakatsanis and Martin JJ., Côté, O’Bonsawin and Moreau JJ. concurring). The majority held that the Court of Appeal erred in dismissing the case as moot without reaching the merits, given the important and recurring constitutional questions at stake. On the merits, the majority held that both s. 6(1) and s. 6(2)(a) of the Charter protect a right to move freely within Canada, including across provincial borders — not merely a right of international entry and exit or a right to establish permanent residence. Any government measure that limits interprovincial movement in a non-fleeting or non-trivial way, or that makes such movement contingent on state authorization, infringes s. 6. Newfoundland and Labrador’s travel restrictions did exactly that, engaging the mobility rights of both citizens and permanent residents. The majority set aside the Court of Appeal’s order and modified the application judge’s order to reflect infringement of both s. 6(1) and s. 6(2).
However, the majority also held that the travel restrictions were demonstrably justified under s. 1 of the Charter and the Oakes test. In the earliest days of the pandemic, governments faced rapidly rising case counts and deaths, a near-total absence of established medical and scientific evidence, and the need to act swiftly. Under those extraordinary circumstances, Newfoundland and Labrador’s measures were rationally connected to protecting public health, minimally impairing given the available alternatives and state of knowledge at the time, and proportionate in their effects. The majority also clarified that while the precautionary principle is not an error to reference, it should not be embedded into the Oakes framework; the existing test already accommodates deference to government on complex, emergent policy matters.
Justices Kasirer and Jamal (Wagner C.J. concurring) dissented in part, agreeing that the appeal should be heard and that s. 6(2)(a) was infringed and justified, but maintaining that s. 6(1) addresses only international mobility — the rights to enter and leave Canada and to be free from exile or banishment — and does not extend to interprovincial movement. Justice Rowe dissented in part in the opposite direction, agreeing with the application judge that s. 6(1) protects interprovincial travel simpliciter but concluding that s. 6(2)(a) does not, as its text and purpose concern relocation of residence rather than travel as such.
Key Takeaways
- Both s. 6(1) (citizens) and s. 6(2) (citizens and permanent residents) of the Charter protect a right to move freely within Canada, including across provincial borders; laws that restrict interprovincial movement in more than a fleeting or trivial manner, or condition it on state approval, constitute an infringement.
- Emergency-era COVID-19 interprovincial travel bans infringed Charter mobility rights, but the infringement was justified under s. 1 given the grave and rapidly evolving public health crisis facing governments in early 2020.
- When the French and English texts of a Charter provision diverge, bilingual interpretation does not default to the narrower shared meaning; courts must adopt the reading that best protects the underlying right — generally the broader of the two authoritative versions.
- The precautionary principle is not a stand-alone component of the s. 1 Oakes analysis; concerns underlying it are already accommodated through the test’s contextual flexibility and the deference courts extend to governments on urgent, evidence-scarce policy choices.
- Courts retain discretion to decide moot constitutional cases where the issues are of recurring public importance and would otherwise evade review.
Why It Matters
This is the Supreme Court’s first comprehensive ruling on the scope of Charter s. 6 mobility rights and the first to confirm that interprovincial movement — not merely international travel — is constitutionally protected. By resolving a longstanding debate about whether s. 6(1) and s. 6(2) overlap on domestic movement, the decision gives Canadians clearer constitutional protection against provincial border controls in ordinary times, while confirming that severe public health emergencies can justify temporary restrictions that satisfy the Oakes test.
The decision also makes a significant methodological contribution: it establishes that bilingual Charter interpretation must favour the reading that more fully protects the right when the two official-language texts diverge, departing from the statutory-interpretation default of preferring the narrower shared meaning. That principle will have ramifying effects across future Charter litigation wherever the French and English texts of a rights guarantee differ in breadth or nuance.