Canadians are being asked not to travel unless necessary, not even to their vacation homes. And sometimes not just asked, but ordered. Walls are even going up between provinces. With the long weekend arriving, some may wonder: Don’t I have property rights? Sean Fine explores the roadblocks that some jurisdictions have put in the way.
Q: First, what barriers are there? Beyond strongly worded advice.
A: It’s not a short list. Start with the provinces. Quebec, New Brunswick, Prince Edward Island and Newfoundland and Labrador have restrictions on who may enter. So do the territories. Generally, the message is that the border crossing needs to be essential or involve permanent residents; seasonal arrivals aren’t welcome.
Q: And within provinces?
A: Saskatchewan and Manitoba have internal restrictions, aimed at protecting vulnerable northern communities. Quebec has had a series of restrictions but is now phasing them out. And, a single health district in Ontario – Haldimand-Norfolk, in the south – has barred outsiders, even if they own a second home and pay taxes inside.
Q: Wait – just one has barred cottagers?
A: Partly it’s an enforceability issue. If the province were to make such an order, police and bylaw inspectors could help enforce it, says Charles Gardner, medical officer of health for the Simcoe-Muskoka District Health Unit in Ontario. But when a health unit makes the order, only public health officials can enforce it, he said. Simcoe-Muskoka typically has 80,000 seasonal residents and guests in addition to 60,000 permanent residents, he said. And public health officials are “completely deployed” at the moment.
Q: Then how will Haldimand-Norfolk enforce its ban on visitors? And where do they get the authority for such a ban?
A: The authority of medical officers of health in Ontario’s 34 health districts could hardly be broader. These officers “may require a person to take or to refrain from taking any action” if they believe it is “necessary” to decrease or eliminate a risk from a communicable disease, under Section 22 of the province’s Health Protection and Promotion Act. The fines are massive: up to $5,000 a day. But the district does not appear inclined to take any special enforcement measures. “When drafting the order, we anticipated that the vast majority of people would adhere to it,” medical officer of health Shanker Nesathurai said in a statement. (The province’s Chief Medical Officer of Health, David Williams, urged all health units in writing on May 3 not to impose such an order, but simply discourage cottagers from showing up.)
Q: What does the Haldimand-Norfolk order say, exactly?
A: “You are not permitted to occupy your secondary residence within the health unit, which includes a rented cottage, vacation home, beach house, chalet, and/or condominium.” Nor may people allow someone else into their secondary residence. Exceptions are permitted for those under a self-isolation or quarantine order – but they still require the health unit’s approval.
Q: Isn’t that against the Charter of Rights and Freedoms?
A: The Charter doesn’t have a clause protecting property rights.
Q: Well, can the order be challenged, then?
A: It can and it is. The Long Point Ratepayers’ Association and several individuals have filed challenges before the Health Services Appeal and Review Board. (It won’t be heard by the Victoria Day weekend, though.) John Henderson, a spokesman for the ratepayers’ group, says owners are concerned, among other things, about repairing damage to their properties from winter flooding. “These people cannot see their property and ensure that it’s okay, and get out of their hole that they’ve been in for eight weeks.”
Q: What legal argument do they intend to make?
A: Lawyer David Marshall of Hamilton is representing the ratepayers’ group. The legal arguments are still being developed, but he says Dr. Nesathurai did not explain what the “reasonable and probable” grounds are for the order; the fact that no other health unit has such an order suggests the grounds may be lacking. Also, people who live within the district may still occupy their cottages within the district.
Q: Why does the district say it made the order?
A: Because, said Dr. Nesathurai, 30 people have died and 200 have tested positive for COVID-19, and there are limited resources for treatment: just five ICU beds in Norfolk County and not a single one in Haldimand County. "Our public health unit has emphasized the importance of “staying at home to save a life,” Dr. Nesathurai said.
Q: What about the border controls adopted by provinces? Are they allowed?
A: Mobility rights, unlike property rights, are enshrined in the 1982 Charter of Rights and Freedoms. The right is considered so fundamental that governments can’t override it with the “notwithstanding clause.” The first part of the Charter’s Section 6 says citizens have the right to enter, remain in and leave the country; the second part says citizens and permanent residents may move to, pursue work and reside anywhere in the country. But the Charter does permit governments to impose limits on rights, as long as they can justify them. Ewa Krajewska, a lawyer at Borden Ladner Gervais in Toronto, says the provinces were careful to allow for exceptions to their border controls, so the courts wouldn’t view them as “overbroad.” Kerri Froc, who teaches law at the University of New Brunswick, says the province has acted justifiably, and she believes the courts would uphold its border controls if they were challenged. But Joanna Baron, executive director of the Canadian Constitution Foundation says she believes that under the 1867 Constitution, only the federal government may impose such controls.
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