This case is one that will surely resonate with many Canadians; it is a case that began with a daughter being denied the opportunity to attend her mother’s funeral, as a result of the heavy-handed restrictions imposed during the pandemic.
While that was the scenario that started this dispute, it has now become a case that may determine whether we, as Canadians, have any rights at all to travel to other provinces for reasons other than work or relocation.
This is called the right of mobility simpliciter, referring to travel between provinces (not related to work or relocation), but for personal reasons (tourism, visiting family etc.). The government of Newfoundland and Labrador (NL) does not believe we have this right at all. The bereaved daughter, Kimberley Taylor, disagrees.
Taylor v. Canada was heard first in the provincial court in Newfoundland where the decision agreed in part that Ms. Taylor’s mobility simpliciter rights were infringed upon, but stated that this right only existed under Section 6 (1) of the Charter and that the infringement was justified under Section 1.
Both parties appealed the decision, but the Newfoundland Court of Appeal declined to hear the case on the grounds of mootness, given that all mandates had been lifted by this time.
Still dissatisfied with the original ruling, both parties then appealed to the Supreme Court of Canada, who have agreed to hear the case. A court date has yet to be determined.
Ms. Taylor and her legal team from the Canadian Civil Liberties Association (CCLA) are appealing to gain clarification on our right of mobility simpliciter – believing the right clearly exists within the language of our Charter (as demonstrated in the French language version). The Canadian Constitutional Foundation (CCF) has also been granted intervener status in the case to further the argument for our right to mobility simpliciter language being already presupposed within our Constitution (pre-Charter), and to seek clarification that the lower court erred in their interpretation of Section 6 (2) of the Charter.
The prosecution’s appeal seeks to confirm that no such right exists at all. In the prosecution’s narrow interpretation of Section 6 of our Charter, the only right we have in crossing provincial borders is to relocate to or seek work in another province, arguing that her request to attend the funeral does not qualify for either.
To further clarify the CCLA’s argument for the French language version of our Charter, we need only look at one word: déplacer – meaning to move or be moved (se déplacer); referring to simply moving about. If the intention had been to support moving in the permanent sense only, the word déménage would have been used as it specifically refers to moving your residence (relocation). Both English and French versions of our Charter are equal in their legal standing.
Both the CCLA and CCF have very intriguing and incredibly important arguments to make. The Supreme Court will have the task of determining whether or not our mobility simpliciter rights exist, to what extent, and where exactly they are addressed within our Constitutional laws.
According to Christine Van Geyn, Litigation Director for the CCF, evidence exists both in the language used within our Constitution, and within case law, acknowledging our right of mobility simpliciter. Furthermore, the Supreme Court has previously clarified that the individual elements of the Constitution are linked and need to be interpreted by reference to the structure of the Constitution as a whole. The implication being that the NL government’s literal interpretation is incomplete in its narrow scope.
While our governments are desperately trying to redefine our rights, we look to the Supreme Court of Canada to clarify (and solidify) our rights as they were intended.
It should be easy to see how this case could impact us all significantly. We will be following the case closely – please stand with us in support of those fighting for the rights of all Canadians.
To read the Canadian Constitution Foundation details, click here
To read the Supreme Court of Canada case summary submission, click here
