Perhaps, as some claim, P.E.I.’s COVID-19 travel restrictions violate mobility rights under section 6 of the Canadian Charter of Rights and Freedoms. However, that does not necessarily mean they are invalid. Charter rights are important, but they are not absolute. Section one of the charter provides that the rights set out in it are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Thus, restrictions on travel that would otherwise be unconstitutional may remain valid and operational if they meet the s.1 standard. Meeting the test for justification would require the province to show that the restrictions: (1) are prescribed by law, (2) have a sufficiently important objective, and (3) are a properly proportional response to the perceived harm to be avoided. If the restrictions pass the s.1 test, they remain constitutionally valid notwithstanding the apparent clash with s.6.
On the other hand, if the restrictions fail the s. 1 test, the province could not resort to the charter’s “notwithstanding clause” (s.33) to keep them operational. The “notwithstanding clause” is not available in s. 6 cases.
Gerard Mitchell,
Charlottetown
