The Supreme Court of Canada has recognized a constitutional right for citizens and permanent residents to travel within the country, including across provincial borders, while upholding Newfoundland and Labrador’s restrictions on entry during the early months of COVID-19.
In Taylor v. Newfoundland and Labrador, 2026 SCC 5, the court held that the restrictions infringed mobility rights but were justified under section 1 of the Canadian Charter of Rights and Freedoms. The February 13 decision allowed the appeal in part to broaden the constitutional basis for those rights, without declaring the restrictions unconstitutional.
All nine judges agreed that the restrictions were justified in the circumstances. Their disagreement concerned which provisions of section 6 protected the travel at issue. A five-judge majority found protection under both section 6(1), for citizens, and section 6(2)(a), for citizens and permanent residents.
A request to return after a parent’s death
Kimberley Taylor was born in Newfoundland but lived in Nova Scotia. After her mother died unexpectedly on May 5, 2020, she wanted to return to grieve with her family and attend the burial. She requested an exemption on May 6 and was refused on May 8. Her reconsideration request, which described a plan to self-isolate and a need to care for her elderly father, was approved on May 16.
The challenged orders generally prohibited entry into Newfoundland and Labrador, with exceptions for residents, asymptomatic essential workers and people in specified communities along the Labrador-Quebec border. The chief medical officer of health could also approve entry in extenuating circumstances. The measures were adopted under the province’s Public Health Protection and Promotion Act.
Taylor and the Canadian Civil Liberties Association sought a declaration that the restrictions unjustifiably infringed section 6. The application judge found an infringement of section 6(1), but upheld the measures under section 1. He did not recognize a corresponding travel right under section 6(2). The Newfoundland and Labrador Court of Appeal later dismissed the appeal as moot because the restrictions had been repealed.
The Supreme Court decided the merits despite that mootness. The majority found that the parties still presented opposing arguments, the constitutional issues had substantial public importance, and temporary emergency measures might otherwise escape appellate review. It set aside the Court of Appeal’s dismissal and modified the application judge’s order to recognize the additional section 6(2) protection. No costs were awarded.
Protection extends beyond moving for work or residence
Writing for the majority, Justices Andromache Karakatsanis and Sheilah Martin said freedom of movement serves both personal autonomy and dignity and the unity of the Canadian federation. Section 6 protects more than the ability to relocate permanently or pursue employment in another province.
The majority interpreted the citizen’s right to remain in Canada under section 6(1) as including freedom to move within the country. It also concluded that section 6(2)(a) protects citizens and permanent residents travelling within Canada, including temporary visits, separately from their right to establish residence in another province.
Reading the Charter’s French and English texts together was central to that conclusion. The majority found that the French wording of section 6(2)(a) distinguishes movement throughout the country from establishing residence in a province. It rejected an approach that would automatically favour a narrower shared meaning when interpreting constitutional rights, emphasizing the interests those rights protect.
The protection is not absolute. The majority said non-trivial restrictions on movement, or requirements for state authorization, can infringe section 6, leaving the government to justify the limit. Section 6(2) also remains subject to the qualifications in sections 6(3) and 6(4). Because the province did not rely on those provisions, the court did not decide their full scope or application to the travel right.
Why the pandemic measures survived scrutiny
The majority emphasized that an emergency does not suspend Charter review. The government still had to satisfy the established Oakes test: a sufficiently important objective, a rational connection between the measure and that objective, minimal impairment of the right, and a proportionate balance between benefits and harms.
That assessment had to reflect conditions when the decisions were made. The majority pointed to the early pandemic’s limited scientific information, absence of vaccines or drug therapies, and the province’s particularly vulnerable population and constrained healthcare capacity. The objective was to protect people in Newfoundland and Labrador from illness and death caused by the introduction and spread of COVID-19 through travel.
Taylor and the association accepted that the restrictions were rationally connected to that objective, but argued that less intrusive alternatives were available. These included relying on self-isolation or restricting only travel for tourism, recreation and entertainment.
The majority rejected those alternatives on the record. Evidence raised concerns about compliance with self-isolation, while the province’s geography made entry restrictions more enforceable. Its residents’ health risks and stretched medical resources also supported restrictions extending beyond leisure travel. The court assessed whether a similarly effective, less intrusive alternative existed, rather than demanding a perfect response with hindsight.
The exemptions mattered. The measures were not a complete entry ban: residents and essential workers could enter, other applicants could seek individual exemptions, and refusals could be reconsidered. More than 85 per cent of requests to enter were granted, according to the evidence cited by the majority.
The majority acknowledged the significant personal harm to Taylor and the broader damage caused by separating families and limiting movement across provincial borders. The majority nevertheless concluded that the health and life-preserving benefits outweighed those harms in the extraordinary circumstances before it.
The majority also declined to make the precautionary principle a separate component of the section 1 analysis. Although referring to that principle was not itself a legal error, the existing Oakes framework already accommodated uncertainty, urgent risks and appropriate deference to government choices. The government remained responsible for demonstrating justification.
Judges differed on where the travel right is found
Justices Nicholas Kasirer and Mahmud Jamal, joined by Chief Justice Richard Wagner, agreed that section 6(2)(a) protects temporary interprovincial travel. They would not extend section 6(1) in the same way, viewing it as concerned with international mobility and protection against removal from Canada. They also warned that overlapping guarantees could undermine the distinct limitations attached to section 6(2).
Justice Malcolm Rowe took the opposite view of the two provisions. He found interprovincial travel protected by section 6(1), but read section 6(2)(a) as addressing movement to establish residence. He also emphasized the province’s unusual geography in assessing the public-health response. Both sets of partially dissenting reasons agreed that the challenged restrictions were justified under section 1.
The ruling therefore recognizes broad mobility protection while sustaining these particular, now-repealed measures. It does not give governments unrestricted authority to close provincial borders during an emergency: a limit on the protected right must still meet the Charter’s requirements for justification.
