There are several reasons I support these restrictions:
The first point to note is that there is no such thing as a travel ban. Inter-provincial travel was restricted but it was not eliminated. That restriction fell onto most would-be travelers, including myself. But, there was movement across borders where that movement was deemed necessary and there was always the possibility of applying for an exemption. I live in a small town close to the border between Nova Scotia and New Brunswick. Most traffic across this border was stopped (and some people turned back) but not all. Essential travel, transportation of goods, and some people who worked on the other side of the border went across. This is important because it is not a technicality. It is important because we are dealing with a restriction. That restriction was serious and it did effect people who needed to travel for compassionate reasons. But, travel was not prevented. The technicality here is that we are dealing with an issue of degree not kind. The intent of these restrictions was to prevent the spread of Covid-19 (and I will address that below) and the target audience was non-essential travel, which is the vast majority of inter-provincial travel. In fact, I had not realized how often I traveled across the border to shop, go to dinner, see friends or family, go for a hike, etc. The intent, then, was not to stop all travel but to restrict travel that did not need to take place, like mine.
Second, this is a temporary measure. The constitution -- and precedence -- allows the state to take temporary actions that it would, in other circumstances, not take. To the best of my knowledge, these kinds of restrictions are nearly unprecedented. That is: they are unique in Canadian history and were designed to respond to a unique challenge. The last global pandemic (Spanish Flu) may have killed 50 million people. By any account this is an emergency situation. The argument against border restrictions seems to be either (a) there is no emergency (which is empirically untrue) or (b) an individual's right to move across the border trumps the authority of the state to introduce temporary measures to respond to an emergency situation. This is an interesting argument -- and one I will address below -- but it should not detract from the fact that we are not talking about a permanent restriction. In effect, the argument against restrictions is suggesting that even temporary emergency measures cannot impede the exercise of individual rights. I find this ethically challenging but the key point to make here is that that is simply not consistent with Canadian history (where temporary emergency measures were introduce to respond to Nazism, terrorism, natural disasters, and other health emergencies) nor the constitution. In point of fact, and admittedly provincial governments may not have used the full scope of constitutional powers available to them, the Canadian constitution provides for precisely this kind of matter through the notwithstanding clause. This clause (the use of which should be restricted as I have argued before in this blog) was created precisely to recognize that there could be unforeseen emergency situations that required the temporary suspension of Charter rights.
What does this mean? It means that the proponents in this case find themselves in an odd situation. They have to use part of the constitution (mobility rights) to argue against another another part (the recognition that there are emergency situations) should not have effect. Said differently, the proponents in this case need to argue that the constitution both has and does not have authority at the same time. It has authority for mobility rights but not for emergency situations. They must use constitutional authority to subvert constitutional authority. It is, I think, the contradictory nature of this argument -- at once arguing that the constitution should and should not have force and effect -- that leads, I suspect, most opponents of restrictions to argue against them on other grounds (for instance, that there is not really a health threat) because they inherently recognize that this argument is going to be difficult to carry off precisely because it is embroiled on the horns of a contradiction.
Third, I full recognize that in this case of the individual bringing this case in Newfoundland that the exemption status through which she originally tried to gain access to the province did not have worked well in practice. In other words, an error may indeed have been made. There is appreciable evidence of this: the decision was reversed upon further consideration. IOW, a horrible mistake was made. That is not, I think, at issue. The issue, in my view, is the proposed remedy: to eliminate restrictions. In Canadian law, there is a principle -- by which the courts operate -- called least intrusive remedy. What this means is that the response to the problem should be proportionate to the problem causing the least possible disruption to the legal infrastructure of society. Thus, for instance, Canadian courts rarely "strike down" laws because that would be a serious and intrusive response to a problem. They usually suggest that government's fix the problem (as opposed to the courts) and when they do fix the problem, they usually try to do so in a way that preserves the rest of the law.
Here is an example: the marriage act (or, whatever its precise name) was never "struck down" to allow same sex marriage. Instead, the courts, after multiple warnings to the federal government, removed the words "between and a man and a woman" (again, or whatever the precise wording was) and inserted "between two people." Why do this? Because, in this case, the rest of the law was not at issue. No one was asking the courts to get rid of marriage. Instead, a defined group of people were, in fact, asking for access to that institution. Moreover, striking down (getting rid of) the entire law would create a legal mess: no one would, any longer, be legally married because the law would no longer exist. You can see why this principle -- least intrusive remedy -- is, in fact, a good way to proceed with judicial review.
In the case of travel restrictions we need to ask if striking down temporary travel restrictions that respond to a national health emergency is, in fact, the best remedy to address what may have been an mistake. I recognize the pain of the individual involved, but I would still argue against the idea that a constitutional challenge is the best way to address a mistake. Even if the courts were to find in her favour, I'd suggest that there are better remedies (ordering the state to develop a better appeal process, for instance) and that striking down a law like this should be a last resort. I'd also argue that the process of interaction between the courts and legislatures should continue. Canadian courts have been notoriously reticent to assert authority over matters that they -- and most people -- view as falling within the competence of the legislatures (the elected representatives of the people). The courts have not rejected the idea that they exercise judicial review over laws (brought to them by citizens), but they have been unwilling to impose remedies without first allowing legislatures a chance to fix the problem. The recent ruling regarding safe third country legislation is a case in point. Here, the courts recognized that this legislation infringed Charter rights but did not get rid of the law. Instead, they imposed a time limit (six months) and accorded the Parliament that length of time to address the matter. Said differently: the court said "here is a problem that needs to be fixed but we would rather the elected representatives of the people fix it. If you won't in a reasonable length of time, this is what we will do ...." I could see something similar in this case. I'd disagree with it, I think, but I could see something similar whereby the courts said "you know, we have problems with this but we will let the legislatures fix it up and you have X length of time to do so."
Finally, if it were me and I were lawyers for Newfoundland, I would be arguing the ethics of lifting travel restrictions while a health threat exists. I have noticed a few people in Canada following the lead of American protesters saying something like they don't need to wear masks (I suspect this law will be challenged in Canada, too). And this is similar. I commented before on the way in which travel restrictions impeded access to summer cottages. The people making the case against travel restrictions have a tough job because they don't need to argue just for an unusual remedy (striking down a law because of a mistake in its administration) or against the idea of emergency responses (which are by nature temporary). They also need to argue that one's right to move across a border to, for whatever reason, supersedes my right to safety.
This is basic political theory. There are here two operative principles. The first is that the state has a basic obligation to ensure the security of its citizens. That is one of its priority and paramount objectives and the reason it provides, say, police and fire protection and a coast guard. The state can be about many things but one of the key things it must be about to security of its citizens. This is, in fact, so important that we have a name for states that cannot do this: failed states. The second consideration is the scope of individual rights. I've noted this before but the old principle is still a good beginning point in discussions on this matter: my right ends where it infringes the rights of another. I might like punching people, as a fictional example, but in that case I need to take up boxing. I can't just walk down the street and start hitting people. My exercise of my right cannot impede other people's exercise of their rights. My rights, to state this clearly, are not superior to their rights. Each person's rights are equal.
In this case, the opponents of travel restrictions need to argue precisely the opposite of both of these points. They have to argue that the state should not be concerned with the security of its citizens and that their right to mobility is more important than my right to, say, not get a death-inducing disease. On a personal level, I find these arguments difficult to sustain.
I will sum up: the people bringing this case are not doing anything wrong. They are doing what we all should do in a society that is supposedly governed by the rule of law. They are taking their case to court. That is their right and they are exercising it in a responsible way. No one should fault them for it and we can and should learn from the specific cause and re-assess how we exercise and show compassion to people in the midst of grieving and traumatic personal and familial events. No one should fault people for this case. I still don't think they should win and, if they do, I think there are other and better approaches to dealing with the problem. I'd argue that travel restrictions are working and they are allowing us to gain control over pandemic, at least in a few countries. I'd be worried if we took a step away from that.
No comments:
Post a Comment