The Canadian Civil Liberties Association (CCLA) has sent a letter to the Yukon’s justice minister expressing concerns that the territory’s COVID-19-related border and travel restrictions are unconstitutional.
“We are writing you regarding the constitutionality and impact of the Border Control Measures (COVID-19) Order, issued under the Civil Emergency Measures Act,” the May 27 letter, addressed to Tracy McPhee and also posted to the CCLA’s website, reads.
“The effect of this Order is to largely prohibit Canadians not resident in Yukon from entering the territory, with limited exceptions. In our view, the Order is contrary to section 6 of the Canadian Charter of Rights and Freedoms and may also be beyond the territory’s jurisdiction.”
The letter argues that restricting entry to the Yukon violates Canadians’ mobility rights, which it describes as “sacrosanct.” It also questions whether the Yukon even had the jurisdiction to make the order, as it effectively controls not only movement within the territory, but outside of it as well.
Yukon government spokesperson Matthew Cameron confirmed May 28 that McPhee had received the letter and “will be responding to it.”
The CCLA has sent similar letters to the other territories as well as New Brunswick and Prince Edward Island, which also have travel restrictions in place. The association is also part of a court case in Newfoundland and Labrador challenging the constitutionality of that province’s COVID-19-related entry restrictions for non-residents.
The Yukon’s Border Control Measures (COVID-19) Order came into effect on April 17 and bars entry into the Yukon except for residents, family members of residents, critical or essential service workers, people travelling to Alaska or the Northwest Territories via the Yukon, or people exercising an Aboriginal or treaty right.
Cara Zwibel, the director of the CCLA’s fundamental freedoms program, said in an interview May 28 that while the Yukon is a “little more permissive” than other jurisdictions in regards to who it’s allowing in, “the fact that there’s a class of people that are being told basically, you cannot enter this part of the country, is a Charter problem.”
“Every right under the Charter is subject to limits, and if the government has, you know, compelling evidence that demonstrates this is the only way to achieve the public health goals that it is trying to achieve and need to be achieved … that’s something we’d need to consider,” she said.
“I guess I’m skeptical that that kind of evidence exists.”
Having a mandatory self-isolation period for people entering the Yukon, Zwibel suggested, would “arguably address the public health risk in a way that’s just as effective as saying, ‘You can’t come in at all.’”
The CCLA’s letter notes that the “harsh restrictions” are still in place in a time where the Yukon has no active cases and neighbouring British Columbia is seeing its cases decline.
“I can understand a bit more why, at the outset of the pandemic when things were uncertain, this may have seemed like an appropriate step to take,” Zwibel said. “I’m not sure that it means it was constitutional even then, but I certainly think that at this point, I guess the rationale or impetus for it has shifted pretty significantly … I think we have to be pushing our governments to justify these things, you know?”
While the association hasn’t identified a “live” case in the Yukon and is hoping to speak to Yukon government officials about the issue first, Zwibel said that pursuing litigation, similar to what it’s doing in Newfoundland and Labrador, isn’t off the table should the situation not be resolved.
Zwibel acknowledged that “some people have a very strong reaction to us sending these letters, particularly locals … who feel we’re putting them at jeopardy but suggesting that, you know, there shouldn’t be these border closures.”
However, she said that putting public health at risk is “obviously not our intention,” nor is a “better-safe-than-sorry” motto the best way to approach constitutional rights.
“Our goal is (to have) governments really think critically about whether the restrictions we have in place are in fact necessary and proportional to the goal that they’re trying to achieve, and we think that it’s very questionable whether or not that’s the case,” she said.
“… I think (challenging times) are the times that we do need to, you know, push for answers and justification. It’s not a good time to just sit back and shut up.”
Contact Jackie Hong at firstname.lastname@example.org