Is it constitutional to screen Canadians trying to board flights home?

These questions have been percolating for some time, with this legal perspective being an example of those arguing that it is not constitutional. The discussion by law professors Yves Le Bouthillier and Delphine Nakache is useful in setting out the constitutional test:

“1) that the measure is taken to address a pressing and substantial objective, 2) that the measure is rationally connected to the objective, 3) that the measure impairs as little as possible the right in question, 4) that the measure’s overall effects on the right protected is not disproportionate to the government’s objective.”

While they accept that the measures meet the first two tests, they argue it fails to meet the second two tests. It is highly unlikely that these measures will be challenged in court given that any judicial process would most likely take much longer than the temporary measures themselves.

Their arguments against over-reach are unconvincing during a pandemic, when perfect narrow screening at airports is impossible, whether by medical personnel or airline personnel. And of course, migration management is already carried out by airline personnel in the form of passport and visa checks. And more special flights, given the challenge the government is already facing in organizing a multitude of flights is simply not practical at this time.

Are these measures disproportionate? IMO, not so, given the nature of the pandemic, the number of cases, and the impact on healthcare and its capacity to handle COVID-19.

And while lawyers can argue that it is “the government’s message and actions should not leave behind any of its citizens,” the reality is that this is an impossible bar to meet. To the government’s credit, it has admitted that not all will be able to return to help manage expectations while at the same time organizing many flights for returning Canadians and permanent residents.

Part of my reaction to this commentary reflects my living with cancer for over 10 years, in and out of treatment, with the compromised immunity as one of the side effects and being at higher risk of COVID-19. The fact that the Ottawa Hospital experienced a case in the same ward where I received my stem cell transplants drives home the point even more for me. So I tend to accept legalistic arguments less than those of medical professionals that reduce, albeit imperfectly, risk:

As part of its response to the COVID-19 pandemic, the federal government has, unfortunately, adopted a measure that denies the right of some Canadian citizens to enter the country, a right guaranteed by s. 6 (1) of the Canadian Charter of Rights and Freedoms.

On Monday, March 16, the Canadian government asked air carriers to take measures to prevent all travellers abroad who present symptoms suggestive of COVID-19 to board planes flying to Canada. These measures apply to everyone attempting to come back to Canada, including the more than 3 million Canadian citizens abroad at any given time.

To enforce this new policy, the Minister of Transport, on March 17, issued an interim order under the Aeronautics Act saying that air carriers “must conduct” a health check and prohibiting the carriers from allowing a person who has suspected signs or symptoms of COVID-19 to board. In conducting the health check, the carrier must rely on questions from a World Health Organization (WHO) document that offers guidance for the management of ill travellers at points of entry.

However, here, the government is requiring air carriers to ask those questions before the plane departs from a foreign country.

The interim order came into force at 12:01 a.m. on March 19. Since then, two new updated versions of the order have been adopted (on March 20 and 24). The most recent version no longer refers to the WHO’s document.

Persons prohibited from boarding cannot get on an aircraft for at least 14 days unless they have a medical certificate stipulating that their symptoms are not related to COVID-19. Presumably, they could be refused again if they still have the symptoms. Moreover, the risk is that 14 days later, they can no longer leave a country either because there are no flights available or because that country has closed its borders.

Section 6 (1) of the Canadian Charter of Rights and Freedoms provides that “Every citizen of Canada has the right to enter, remain in, and leave Canada.” Since March 19, citizens refused boarding at the request of the federal government can no longer effectively exercise this right. S. 6 is one of the few provisions in the Charter that the Parliament or the provincial legislatures cannot derogate from by using the notwithstanding clause provided by s. 33 of the Charter. However, the government can justify limits to Charter-protected rights in accordance with s. 1 of the Charter if these limits can “be demonstrably justified in a free and democratic society.”

Before looking further into the constitutionality of this interim order, it is worth examining other laws that address the type of situation we are confronted with to fully appreciate how extraordinary this measure is.

First, a ban on Canadians from returning to their country was not expressly contemplated by Parliament when it adopted the Emergencies Act in 1988. That Act provides for four types of emergency. The one applicable to the COVID-19 situation would be the “Public Welfare Emergency,” which authorizes only “regulation or prohibition of travel to, from or within any specified areas” in Canada for everyone: Canadian citizens, permanent residents or foreigners. Even a declaration of “International Emergency” (another of the four types of emergencies under the Act) to address a real or imminent use of serious force or violence, does not allow the government to refuse entry to Canadian citizens. For an international emergency, the government can regulate or prohibit “travel outside Canada by Canadian citizens or permanent residents and of admission into Canada of other persons.”

As for the Quarantine Act, adopted in 2005, one of its provisions grants the power to the Governor in Council to prohibit for a specified period of time “the entry into Canada of any class of persons who have been in a foreign country.” However, this kind of measure can only be taken if “no reasonable alternatives to prevent the introduction or spread of the disease are available,” a question addressed below.

To respond to the COVID-19 emergency, the government, on the recommendation of the Health Minister, adopted the Minimizing the Risk of Exposure to COVID-19 in Canada Order on March 18 (since updated with a new order on March 26). It is worth noting that the prohibition to enter Canada in both the March 18 and 26 orders are directed only at foreigners, not Canadian citizens and permanent residents.

Turning back to the constitutionality of the interim order, the government can justify it under s.1 of the Charter. However, to do so, the government has the burden to establish 1) that the measure is taken to address a pressing and substantial objective, 2) that the measure is rationally connected to the objective, 3) that the measure impairs as little as possible the right in question, 4) that the measure’s overall effects on the right protected is not disproportionate to the government’s objective.

There is little doubt that the Canadian government could meet the first two hurdles under section 1. The objective to protect the health of the Canadian population is pressing and urgent, and the measure, to ban travellers exhibiting signs or symptoms of COVID-19, is rationally linked to this objective. However, it is questionable that it could meet the other two conditions.

This measure does not impair the right in question as little as possible as it both overreaches and underreaches. It targets Canadian citizens exhibiting symptoms that could be indicative of COVID-19 but are also associated with many other conditions such as other types of infectious pulmonary diseases, non-infectious pulmonary diseases, a common cold, or flu. The Canadian government is asking for an assessment to be made by airlines representatives, who are not medically trained to conduct these kinds of assessments. As such, they could very well deny boarding to Canadian citizens who are not COVID-19 positive and accept on board some Canadian citizens who could be COVID-19 positive but are asymptomatic. Moreover, this measure also has the perverse effect of leading some travellers to hide their condition out of fear of being refused boarding, as has been reported by the media. Finally, critics claim that the transfer of migration management to private carriers increases risks of arbitrariness and discriminatory practices (racial profiling).

Apart from the fact that these citizens would need care if they were indeed COVID-19 positive, many of them could suffer from other conditions that would require continued access to medical care and medications, which is not a given for anyone suddenly forced to remain in another country.

There are alternatives that would allow for the repatriation of all Canadian citizens: on regular flights, airlines could isolate the few citizens exhibiting symptoms, or special flights could be arranged to repatriate these citizens. These alternatives could be costly and take some time to implement, but that in itself should not be sufficient to justify infringing fundamental rights.

As for whether the effects on the right protected are disproportionate to the government’s objective, this measure is preventing vulnerable Canadian citizens from getting back to their country.  Apart from the fact that these citizens would need care if they were indeed COVID-19 positive, many of them could suffer from other conditions that would require continued access to medical care and medications. That access is not a given for anyone suddenly forced to remain in another country, especially if this other country is or will soon be facing a crisis in its health sector. How can a measure that affects directly the most vulnerable, and that risks excluding from boarding some citizens who are not COVID-19 positive while allowing others who are, be proportionate?

Of course, in such unprecedented times, we recognize that there is no easy solution for the many Canadians abroad who want to come home. The Canadian government has acted in recent days to bring back citizens, permanent residents and members of their immediate family stranded abroad. After starting with Morocco, it has expanded this operation to several other countries with flights having taken place (or being planned for) in countries such as Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Peru and Spain. This is welcome news.

However, Canadian citizens who have suspected symptoms of COVID-19 can still be refused boarding. In our view, the government has an obligation not to create hurdles for the return of all its citizens. The Prime Minister has rightfully urged Canadians: “If you are abroad, it is time for you to come home.” To be consistent with the Canadian Charter, the government’s message and actions should not leave behind any of its citizens.

Source: Is it constitutional to screen Canadians trying to board flights home?

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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