The B.C. government is reviewing legal advice on whether it can restrict non-essential travel across provincial boundaries as frustrations mount about non-resident visitors who ignore requests to stay home to prevent the spread of COVID-19.
Premier John Horgan said his cabinet is considering the legal opinion it has received and he expects to make an announcement early next week. B.C. would be the largest province to impose restrictions on interprovincial travellers, an extraordinary step in the fight to contain the pandemic.
The Atlantic provinces have maintained restrictions for non-residents for months, requiring all non-essential visitors to quarantine for two weeks. Pandemic travel restrictions imposed by the Newfoundland and Labrador government also survived a Charter challenge.
Since November, as the second wave of the pandemic accelerated, the Provincial Health Officer has advised B.C. residents not to travel for vacations or to visit friends or family outside of their household or core bubble. The Premier said he is responding to public concern “about people coming from elsewhere when they’re making sacrifices of their own,” he said.
Since the arrival of the pandemic early in 2020, Mr. Horgan has said Canadians have Charter-protected mobility rights within the country, and closing the province to other Canadians was initially dismissed as impractical, in part because of the large number of Albertans who own recreational property in B.C.
B.C. has not spelled out whether it would prefer restrictions on who can enter, quarantine requirements, or other measures.
Mr. Horgan told reporters on Thursday that public anger has been stoked by politicians and other public figures who travelled out of the country over Christmas. While no members of B.C.’s legislative assembly left the province over the holidays, he said, the stories “led to a firestorm of frustration and anger, because Canadians and British Columbians are making sacrifices, and one of those sacrifices is staying close to home, not travelling to see loved ones, not going to tend to what would have been traditions, or pressing matters; the loss of life of a loved one in another part of the country.”
The Premier expressed frustration that directions from provincial and territorial leaders to discourage non-essential travel around the country have been ineffective. “It would seem an easy thing to do to just tell people not to come here,” he said.
B.C. has been a destination for Canadian travellers this winter, including thousands of so-called snowbirds who were discouraged from going to the United States for the winter because of international travel restrictions.
The Canadian Camping and RV Council has helped secure about 5,000 RV camping locations for Canadians on Vancouver Island and around the lower mainland.
The organization’s executive director, Shane Devenish, said in an interview that his organization would oppose any attempt to curb cross-country travel. “Officially, we would be against that. I understand what they are trying to do, but the freedom for RVers to go from one province to another is important,” Mr. Devenish said. “We will follow that closely, British Columbia being such a popular destination.”
Canada’s four Atlantic provinces have had barriers to non-essential travel from other parts of the country since the pandemic began. Those restrictions, requiring two weeks of self-isolation upon entrance, have helped the region keep case numbers among the lowest in the developed world – but have also come at great cost to industries connected to travel.
Until November, residents of Atlantic Canada could travel freely among the four provinces without needing to quarantine. That agreement, called the Atlantic Bubble, ended when cases in Nova Scotia and New Brunswick began to rise.
Cara Zwibel, a lawyer for the Canadian Civil Liberties Association, said B.C. will have to tread carefully, and suggested that it should seek the least restrictive measures to achieve its objectives.
“It’s certainly been the recommendations throughout much of this [pandemic] that people shouldn’t be travelling around for non-essential reasons,” she said. “I understand the reasoning behind it, and the desire of governments to try to curb that one potential source of new infections and transmission. But I do believe that the Charter protects the rights of Canadians to move freely within the country.”
The association launched a Charter challenge last year to Newfoundland and Labrador’s travel restrictions on behalf of Nova Scotian Kimberley Taylor, who was denied entry to attend her mother’s funeral.
The provincial Supreme Court upheld the travel restriction, confirming that Ms. Taylor’s Charter right to mobility within Canada was infringed, but it ruled that infringement was justified in response to the COVID-19 pandemic. The civil liberties group intends to appeal.
Constitutional expert Errol Mendes, a law professor at the University of Ottawa, said B.C. can expect a Charter challenge if it attempts to impose travel restrictions on Canadians outside its boundaries, but it could defend limits if it can demonstrate that those infringements are reasonable to protect public health.
“The onus will be on the government to show compelling evidence,” he said. The Newfoundland and Labrador government presented modelling to show the court that COVID-19 would spread faster without travel restrictions, and that the biggest risk to the province was the introduction of the disease from other jurisdictions. It also argued that its limited health care resources – just 92 intensive care unit beds – means that a surge in cases would put the health care system in jeopardy. Prof. Mendes said British Columbia would have to provide its own scientific and health data to establish a similar risk.
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