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Canadian Civil Liberties Association, et al. v. His Majesty the King in Right of Newfoundland and Labrador, et al.

Canadian Civil Liberties Association, et al. v. His Majesty the King in Right of Newfoundland and Labrador, et al. is a lawsuit before the Supreme Court of Canada, on appeal from the Supreme Court of Newfoundland and Labrador. It was the first case heard by the Supreme Court related to government restrictions in response to the declared COVID-19 pandemic.^[1]

Kimberly Taylor and the Canadian Civil Liberties Association (CCLA) are co-applicants, and the respondents are the Government of Newfoundland and Labrador and Janice Fitzgerald, the province's Chief Medical Officer of Health.^[2] Additionally, the Canadian Constitution Foundation (CCF), British Columbia Civil Liberties Association (BCCLA) and Attorneys General of Canada, Nova Scotia, New Brunswick, Prince Edward Island, Saskatchewan, the Yukon and Nunavut are interveners in the case.^[3]

Background

Kimberly Taylor grew up in Killbride, Newfoundland, and moved to Halifax, Nova Scotia in 1996.^[2:1]

On April 30, 2020, Newfoundland and Labrador's Chief Medical Officer of Health, Janice Fitzgerald, issued a Special Measures Order limiting travel in and out of the province in response to the declared COVID-19 pandemic.^[4] These restrictions went into effect May 4, 2020.^[5] Taylor's mom died suddenly at home the following day.^[2:2]

Taylor immediately made arrangements for her mother's burial and applied for an exemption to allow her to travel back home for the funeral. Her request was denied on May 8, 2020. She filed a reconsideration request on May 14, and on May 16, she was granted an exemption to enter Newfoundland. No reasons were provided for either the denial or subsequent granting of the exemption.^[6]

Initial trial

On May 20, 2020, Taylor and the Canadian Civil Liberties Association (CCLA) filed an application with the Supreme Court of Newfoundland and Labrador seeking a declaration that section 28(1)(h) of the Public Health Protection and Promotion Act (allowing the CMOH to "make orders restricting travel to or from the province or an area within the province" while a declaration of a public health emergency is in effect)^[7] and the Special Measures Order were unconstitutional.^[8] The application was heard between August 4-12, 2020.^[9]

In an order dated September 17, 2020, Justice Donald H. Burrage found that the travel restriction did infringe Taylor's right to remain in Canada under section 6(1) of the Canadian Charter of Rights and Freedoms, but not her right to "move to and take up residence in any province" under s. 6(2)(a).^[9:1]^[5:1] He also found that the provincial government "had demonstrated under section 1 of the Charter that the circumstances of the pandemic justified that infringement of s. 6(1) of the Charter."^[10]

Appeal

By February 2022, the province had ended mandatory travel restrictions, and declared the public health emergency over the following month.^[11] As a result, all parties agreed that this meant the appeal was moot, but urged the Court of Appeal of Newfoundland and Labrador to use its discretion to hear the appeal nonetheless.^[12] On August 14, 2023, the Court declined to hear the appeal and dismissed it without costs.^[13]

However, on April 25, 2024, the Supreme Court of Canada agreed to hear the appeal.^[14] In January 2025, the Government of Newfoundland and Labrador filed notice that the province would be represented by Don Anthony, Mark P. Sheppard and David Rodgers.^[3:1]

The appeal was heard on April 15-16, 2025.^[3:2] The British Columbia Civil Liberties Association (BCCLA) argued in its intervention that "section 6 of the Charter protects the right to move between provinces, as well as within them," and that "these rights should be enjoyed not just by citizens, but also by permanent residents." Further, the BCCLA argued that "individual communities – in particular Indigenous governments – should have control over access to their land," and that all of the above is "necessary in order for Canada to comply with its obligations under international law."^[15]

Another intervener, the Canadian Constitution Foundation (CCF) argued that the Constitution of Canada establishes a right to interprovincial travel simpliciter (meaning without limitation or condition), and that debates in the House of Commons of Canada support the notion that section 6 of the Charter "provides Canadian citizens with a right of interprovincial travel simpliciter."^[16]^[17] Christine Van Geyn, litigation director for the CCF, further noted that the precision of language in the French version of the Charter makes clear that section 6 was not intended to be limited only to the right to "take up residence," but also "simply moving about for travel."^[1:1]

Following the two days of hearing, the Supreme Court reserved its decision.^[3:3]

Court documents

External links

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