Taylor v Newfoundland and Labrador, 2026 SCC 5 [Taylor] marks the first case wherein the Supreme Court of Canada (“SCC”) has heard a constitutional challenge borne out of an emergency measure adopted during the COVID-19 crisis (Taylor, para 59). In Taylor, the SCC contemplated a novel question: where might the constitutional right to move across Canadian provincial borders be located within the architecture of section 6 of the Charter?
Facts
On March 18, 2020, Newfoundland and Labrador declared a public health emergency (Taylor, paras 1, 16). On April 29, Newfoundland and Labrador’s Chief Medical Officer of Health (CMOH) authorized, under provincial statute, travel restrictions to non-residents with narrow exceptions (Taylor, paras 8, 24). Freedom to travel into Newfoundland and Labrador became subject to government authorization (Taylor, para 8). Exceptions were available, upon request, to those returning from out-of-province schooling and those visiting family who were critically or terminally ill (Taylor, para 25).
After her mother’s death, Ms. Taylor, a non-resident of Newfoundland and Labrador, sought to travel into Newfoundland and Labrador to grieve with her family (Taylor, paras 28-29). Ms. Taylor was denied the exemption she requested but was later granted entry on a reconsideration request (Taylor, paras 29, 32). She joined with the Canadian Civil Liberties Association (“CCLA”) to seek a declaration that the travel restrictions imposed by the province infringed mobility rights under section 6 of the Charter (Taylor, 32, 9). The provincial government denied that section 6 “Mobility Rights” guaranteed a right to move across provincial borders (Taylor, para 9), or interprovincial movement simpliciter, a right to travel freely within Canada for any purpose (Taylor, para 64).
Judicial History
Supreme Court of Newfoundland and Labrador
The application judge concluded that the right to “remain in” Canada under section 6(1) guaranteed a right to travel across provincial borders (Taylor, para 34). Having located this right, the application judge found the objective of the travel restrictions, the mitigation of the spread of COVID-19 by travellers, was pressing and substantial, given the province’s notable vulnerability (Taylor, para 35). The travel restrictions were also found to be rationally connected to this goal, and, at the minimal impairment stage of the Oakes analysis, the judge concluded that there was no less-infringing measure that would have been an effective substitute (Taylor, para 36). Accordingly, the application judge found that the breach of section 6 was saved under section 1.
Court of Appeal of Newfoundland and Labrador
The Court of Appeal declined to hear an appeal on its merits, as the travel restrictions had been repealed before the appeal was to be heard, rendering the appeal moot (Taylor, paras 13, 38).
Issue
The central issue before the SCC was whether the travel restrictions infringed section 6 of the Charter, and if that infringement was justified under section 1 (Taylor, para 41).
Most importantly, the SCC determined where in particular the right to move freely between provinces is found within the textual provisions of section 6. Accordingly, this article focuses on identifying under which part of section 6 the Court located the right to interprovincial mobility.
Decision
The SCC was unanimous in holding that the travel restriction constituted an infringement of a section 6 mobility right, and that this infringement passes scrutiny under the reasonable limits test of section 1. Where the majority and dissents diverge is where they found the right to interprovincial movement appropriately fits within section 6.
The Majority
Karakatsanis and Martin JJ. held that mobility rights necessarily include the right of free travel across provincial borders (Taylor, para 10). They held that the restrictions infringed the “broad” right of mobility guaranteed under both section 6(1) and 6(2), and that a broad right to move freely grounds the more precise rights described by subsections (1) and (2) (Taylor, 105). Conducting a purposive reading (97), the majority underlined the Charter’s nation-building function—the protection of mobility rights performs the critical work of cultivating interprovincial kinship (Taylor, para 67). In other words, if no right of interprovincial movement were recognized, this might produce damaging effects for the constant project of shoring up “national unity” and the country might be “converted into a number of enclaves” (Taylor, 116). Alongside the question of bolstering national unity, the majority discussed the importance of mobility rights for individual liberty by referencing a history of race-based policies that curtailed the rights of movement: first, the internment of Japanese Canadians, and secondly, the “pass system,” whereby Indigenous persons were prohibited from travelling out of reserves without approval from a federal agent (Taylor, 121).
Section 6(1), in outlining a right to remain in Canada, necessarily includes a right to free movement within Canada. While the province claimed section 6(1) ought to be read narrowly as a right “against exile and banishment” (Taylor, para 155), the majority maintained that the protection of 6(1) cannot be limited to a protection against something like national exile.
Karakatsanis and Martin JJ. also held section 6(2) houses a right of interprovincial movement. Here, they maintain that in order to travel to any province for the purposes of work or residence, there must exist a more fundamental right to “go where you please” in general. They referred to Law Society of Upper Canada v Skapinker, 1984 SCC 357 [Skapinker], in which the SCC held that “Mobility Rights” or “Liberté de circulation et d’établissement” denotes a right to “move about, within and outside the national boundaries” (pp. 377-78) (Taylor, para 110).
Moreover, given the more expansive French text of section 6 (“Liberté de circulation et d’établissement”), the majority opined that the Court is to remember to aim for a large, liberal, and generous interpretation of rights (Taylor, para 100). Although not the focus of my analysis here, Taylor can be read as a case in which the Court articulates an approach to bilingual Charter interpretation, and how it differs from bilingual statutory interpretation (Taylor, para 95).
The Dissent, in Part
Kasirer and Jamal JJ. contended that Ms. Taylor’s rights were infringed under section 6(2)(a) only. In their view, section 6(1) protects the right of international mobility (“enter, remain in, and leave”), while 6(2) protects interprovincial mobility (Taylor, para 259). They emphasize that the section 6(1) right of “remaining in” Canada does not entail a right to move. Instead, section 6(2)(a) clearly encompasses a right to interprovincial movement simpliciter, as the French text of the provision reads “le droit . . . de se déplacer dans tout le pays,” which suggests interprovincial movement is a “free-standing guarantee” (Taylor, para 284).
The Dissent, in Part
Rowe J. suggested that it is only 6(1) that captures a right of interprovincial movement simpliciter, because “remaining in” connotes a right to remain anywhere “within” Canada’s borders, instead of a right to remain in one’s current location or province. Rowe J. underlines that the rights to enter, remain in, and leave Canada outlined by section 6(1) reflect broad interests and cannot be construed to be a provision merely protecting against forced removal. Instead, to remain, enter, and leave suggests a right “to move freely” (Taylor, para 346).
Analysis
In this section, I will first comment on what I see to be an incisive historical-political grounding reflected in the majority’s analysis. I will then turn to some problems with reading an interprovincial right into section 6(1).
Interprovincial Mobility and the Project of National Unity
What I believe the majority get right in their analysis is their insistence to turn our minds to the nation-building project that was and is the Charter. In some sense, the right to interprovincial mobility is presumed by the fact that Canada is constituted by smaller units joined into a nation. Their analysis is animated by the sense that a right to interprovincial movement simpliciter is so fundamental to the nation-hood of Canada that it imbues the entirety of section 6. By emphasizing both the political and personal stakes involved in a right of mobility, Karakatsanis and Martin JJ.’s purposive approach is conceptually stirring. Their analysis becomes even more convincing if one is to imagine a more fraught future of regional nationalisms or antagonisms, where mobility rights might be further strengthened by the kind of analysis Karakatsanis and Martin JJ. employ.
On “Remaining In”
I am not, however, convinced that section 6(1) protects a right to interprovincial movement, at least not for the reasons the majority provide. Karakatsanis and Martin JJ. seem to suggest the right to “enter, remain in, and leave Canada” necessarily includes a right to free movement within it. This claim disappears the existence of provincial borders. The application judge had used an analogy in arguing that interprovincial movement was protected under section 6(1): “in common parlance, we would regard the right to come and go from one’s home, and to remain in it, as surely including the right to wander freely from room to room” (353). However, it does not seem that this is necessarily true: a right to exit and enter might be limited to a right to enter and exit the boundaries of a larger space, with access restrictions on particular areas of that larger entity, which are subject to their own governing rules.
Despite this logical quandary, section 6(1) may require fitting a right of interprovincial mobility within it because without it, the section may not have meaningful force. While the right of interprovincial mobility cannot be logically derived from section 6(1) in a straightforward manner, it seems that reading “enter[ing],” “remain[ing”] in, and “leav[ing]” Canada as excluding free movement would make section 6(1) quite thin. In some sense, Taylor lays out how the SCC might locate rights within the Charter that have not been expressly accounted for by its framers.
Conclusion
Taylor sees the return of COVID-era travel measures to the forefront of the public’s legal imagination. More than four decades into the Charter’s life the Court has located for the first time the right of interprovincial mobility under section 6, a right that we may have believed to already have been judicially recognized. This right may see further invocation in Canada’s future, and the SCC unanimously demonstrate how such a right can find a permanent home within the scant text of section 6 of the Charter.
