Supreme Court gives guidance on mobility rights and bilingual Charter interpretation

The Supreme Court released its first decision on a constitutional challenge to COVID-19 emergency measures. It found that Newfoundland and Labrador’s temporary prohibition on non-residents entering the province infringed mobility rights protected under the Charter of Rights and Freedoms, but was justified under section 1 in the context of the pandemic. Given the notable differences between the English and French text of the Charter, the Court took the opportunity to provide guidance on bilingual Charter interpretation. It held that the ordinary rules of bilingual statutory interpretation do not apply to bilingual Charter interpretation, which must focus on broadly protecting Charter rights.

What you need to know

• Interprovincial mobility protected under subsections 6(1) and (2) of the Charter. Canadian citizens and permanent residents are guaranteed the right to move freely within Canada, including across provincial borders.
• Extraordinary circumstances of early pandemic justified limited infringement. The Court unanimously found Newfoundland and Labrador’s travel restrictions infringed Canadians’ mobility rights but that the infringement was justified as a tailored, evidence-based measure to protect the province’s population from the spread of COVID-19.
• Distinct methodology for bilingual Charter interpretation. Given the differences between section 6 in the English and French text of the Charter, the Court considered how to interpret Charter rights in a bilingual context. It held that the ordinary rules of statutory interpretation do not govern bilingual interpretation of Charter rights. Rather, Charter interpretation requires a purposive approach that favours advancing protected interests through a large, liberal and generous interpretation informed by both the French and English text.

Background: Newfoundland and Labrador’s COVID-era travel restrictions

In the spring of 2020, at the height of the pandemic, Newfoundland and Labrador imposed a general ban on non-residents entering the province, subject to limited exceptions. These were some of the strictest measures adopted by any provincial government to stop the spread of the virus. At the time, Kimberley Taylor was a resident of Nova Scotia, but her parents lived in Newfoundland. When her mother died on May 5, Ms. Taylor applied for an exemption to the travel restrictions to attend the funeral and be with family. Her application was initially denied, though she successfully applied for reconsideration and on May 16 was granted permission to enter the province. Even so, Ms. Taylor, joined by the Canadian Civil Liberty Association, challenged the travel restrictions for infringing her mobility rights guaranteed under section 6(1) and section 6(2)(a) of the Charter.

What section 6 says

Section 6 of the Charter guarantees certain mobility rights. Subsection 6(1) guarantees to every citizen of Canada “the right to enter, remain in and leave Canada”. Subsection 6(2)(a) guarantees to every citizen of Canada and permanent residents the right “to move to and take up residence in any province”. Given that section 6 has not been extensively considered by the courts, one of the key issues in Taylor was whether it protects the right to travel freely within Canada for Canadian citizens and permanent residents alike.

Decisions below

The application judge found the travel measures indeed infringed Ms. Taylor’s mobility rights under subsection 6(1), but not subsection 6(2)(a). That infringement was justified under section 1, however, to protect the health of Newfoundland residents and reduce further loss of life in the “unprecedented circumstances” of the COVID-19 pandemic, especially given the scientific uncertainty at the time.

When the case reached the Court of Appeal in June 2023, the travel restrictions had been repealed. The Court declined to rule on the merits of the challenge and dismissed the appeal as moot.

The Supreme Court’s interpretation of section 6

In Taylor v. Newfoundland and Labrador¹, the Supreme Court addressed for the first time whether section 6 includes the right to travel freely within provinces for any purpose. The answer was “yes”, although the Court split three ways on why. The majority (Justices Karakatsanis and Martin, joined by Justices Côté, O’Bonsawin and Moreau) held that citizens’ and permanent residents’ right to move freely across borders, including between provinces, is protected under both subsection 6(1) and subsection 6(2)(a). Justices Kasirer and Jamal (Chief Justice Wagner concurring) would have found only subsection 6(1) protects international mobility rights for Canadian citizens, while subsection 6(2)(a) protects interprovincial mobility throughout Canada for both citizens and permanent residents. Meanwhile, Justice Rowe identified subsection 6(1) as the sole source of these rights.

All agreed that Newfoundland’s travel restrictions infringed section 6 but held that the infringement was justified under section 1: the restrictions were a reasonable component of a comprehensive government response to the pandemic, especially at the start of the pandemic and given that Newfoundland and Labrador had a population that was uniquely vulnerable to COVID-19 and a low capacity to provide medical treatment in case of widespread illness. Saving lives and protecting health thus outweighed the temporary limits on mobility.

Bilingual Charter interpretation

A unique issue arose in Taylor because of the notable differences between the French and English texts of section 6. This provided the Court with an opportunity to dispense much-needed guidance on bilingual Charter interpretation.

Bilingual statutory interpretation is common practice, as a significant portion of Canadian legislation is bilingual; all federal laws and the majority of provincial laws are enacted in both official languages. The starting point for interpreting bilingual statutes is that both versions are equally authentic statements of legislative intent. The same goes for the Charter. Section 57 of the Constitution Act, 1982 states this in no uncertain terms: “The English and French versions of this Act are equally authoritative”.

Ordinarily, bilingual interpretation of statutes focuses on finding the narrowest “shared” meaning of the two versions (akin to the lowest common denominator). This meaning is only rejected if it is inconsistent with the purpose and context of the statute. The goal is to determine legislative intent.

But the Charter is no ordinary statute. As the majority decision in Taylor makes clear, “Charter interpretation is crucially different from statutory interpretation”². That is because the Charter “is drafted with an eye to the future”; like a “living tree” it must be “capable of growth and expansion within its natural limits”³. Charter interpretation is thus not an exercise in determining legislative intent—rather Charter rights are intended to protect broad personal interests against state intervention. Bilingual Charter interpretation thus requires a different approach.

When it comes to the Charter, courts must read both linguistic formulations together to best protect the interests underlying the right at issue. The starting point is the text of the Charter, being “the first indicator of the scope of the right” and a guide to other indicators of purpose⁴. In the face of an apparent difference between the two language versions, whether different, ambiguous, or of various breadths, both should inform purpose. If they can reasonably support more than one meaning, both versions are to be read together, with each giving colour and content to the interests protected and the purpose of the right at issue. But where they diverge, courts should select the reading that better protects the right—which will generally be the broader one.

The majority applied these principles to resolve two apparent differences in the scope of mobility rights between the French and English versions of section 6, both times concluding that the broader meaning governed. While the English version of subsection 6(2)(a) could be read as providing a limited right of mobility only for the purpose of establishing residence in a province, the French read as guaranteeing a right to travel freely throughout Canada for any purpose. Conversely, the English subheading for subsection 6(2) recognizes a broad right to move for any purpose; the French subheading suggested a focus on establishment over travel. The broad language of each version of the text prevailed: the Court held that section subsection 6(2)(a) guarantees an unqualified right to travel throughout the country.