Who would win border restriction charter case unclear, says law prof

A Dalhousie law professor said it’s unclear who would win out in a legal battle over the province’s border restrictions, but for now, he’s giving the slight edge to the province.

“The chances are fairly good that the province might succeed as long as they can justify their legislation,” said Wayne MacKay, a professor emeritus at Dalhousie University’s Schulich School of Law.

“The province would probably have a pretty good shot at it.”

The province has been criticized since it closed down the border to all but essential travel due to the COVID-19 pandemic.

Essential travel includes moving to the province or coming here to work, but not visiting relatives or going to summer properties.

The Canadian Constitution Foundation said they’ve been looking to find a test case to challenge the province’s ban, but MacKay said a lot of the concerns people have raised are a matter of interpretation.

“There are constitutional questions that are definitely raised by the legislation, very broad legislation under the emergencies act,” said MacKay

“As with most things constitutional, it’ll ultimately be decided by the courts and I think it’s not in my mind quite as clear which way they’d go.”

Section 91 & 92

MacKay said a lot of the ambiguity of the constitutionality comes from the Constitution Act’s sections 91 and 92, which details the powers of the provincial and federal governments.

Those sections give the federal government control over interprovincial trade and movement.

But, it also gives a large portion of the control of public health to the province. The province has said the restrictions are in place to keep residents safe from COVID-19.

“The chances are fairly good that the province might succeed as long as they can justify their legislation,” said Wayne MacKay, a professor emeritus at Dalhousie University’s Schulich School of Law. (CBC)

“The main thrust, from the point of view of the New Brunswick government, of this legislation is to protect the people of New Brunswick from contracting COVID-19 and that is the main impact,” said MacKay,

“There is a secondary impact which is limiting and controlling borders which is closer to the line jurisdictionally, but they would argue that’s not the main essence or ‘pith and substance’ of the legislation. That’s a kind of incidental effect”

He said weighing that argument would be up to the courts to navigate.

Charter challenge?

MacKay said even a charter challenge isn’t airtight in this case.

Section 6, subsection 2 of the Canadian Charter of Rights and Freedoms says that “every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to move to and take up residence in any province; and to pursue the gaining of a livelihood in any province.”

This section has been cited as proof that the province’s border restrictions are unconstitutional, but Mackay said he’s not so sure that will hold up.

A non-profit dedicated to defending constitutional rights and freedoms says the New Brunswick government is going too far with its border restrictions. But Wayne MacKay says it’s not that black and white. He’s a professor emeritus at Dalhousie University’s Schulich School of Law. 18:19

“It doesn’t directly say anything about social contacts or tourism, the sort of non-essential things,” said MacKay

“That doesn’t mean they’re not included, but they’re not in any way directly included.”

It would also be subject to the charter’s reasonable limits clause which states that rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Mackay thinks, given the ongoing pandemic, courts would likely look favourably on the province’s restrictions.

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