Starting Thursday (Jan. 7), Ottawa will require that all passengers aged five years or over flying to Canada present written or electronic documents attesting to a negative result in a PCR test for COVID-19 carried out. within 72 hours of travel.
But does the Government of Canada have the constitutional right to prohibit the return to the country to those who do not meet this requirement? Some doubt it!
Among them is criminal lawyer Marie-Hélène Giroux , who was interviewed by journalist Isabelle Richer, on her show on ICI RDI.
The Courts Test
“Would this government decree pass the test of the courts?" asked the host at the outset.
In the eyes of the lawyer, as far as Canadians are concerned, this form of "ban " would not pass the test.
Section 6 of the Canadian Charter of Rights and Freedoms protects the right of Canadians to enter and leave the country.
To derogate from this right, Canada should demonstrate that the proposed limit is "reasonable in the context of a free and democratic society," said Marie-Hélène Giroux.
To do this, the government should demonstrate the following three things:
- that it pursues “a real and urgent objective ” (in the current pandemic situation, the objective of protecting public health would undoubtedly satisfy this criterion, admitted the lawyer);
- that there is a rational connection between the objective and the proposed measure;
- and that this is a minimal interference with the constitutional right of Canadians to enter Canada.
Lack of evidence
According to Giroux, if Ottawa's new requirement were challenged in court, the government would struggle to demonstrate that it represents a minimal infringement of this right.
“[The government] should demonstrate, possibly with public health statistics, that the arrival of Canadian citizens on flights, or the entry into the country of Canadians who have traveled abroad, caused major outbreaks. And I don't think, from what I've seen in the statistics, that such a thing can be demonstrated. "
Remember that the government itself recognizes that travel is the cause of only 1.8% of COVID cases in the country - and that it is community transmission that is the source of the vast majority of cases.
According to Giroux, the banishment of Canadians would even less pass the test of the courts as other existing measures - in particular the Quarantine Act - pursue the same health objective effectively, without violating the Charter.
Why change a system that works?
In response to a question from the host about the possibility of requiring Canadians to spend their quarantine in a limited place, determined by the government, the lawyer did not rule out this possibility ...
“We could… But I ask myself: why go beyond what already exists? Do we really need this? […] I understand that everyone is indignant ... But the system works and it is pointless to change it. "
"Let's wait and see if a pugnacious lawyer will want to go to court with that," concluded the host.
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