This week’s sudden and erratically communicated shift in the NWT’s travel restrictions turns out to be an attempt to avoid a Charter challenge.
The NWT government is worried that its border closure infringed on Canadians’ right to mobility throughout the country as enshrined in the Canadian Charter of Rights and Freedoms.
As a result, the NWT is backing away from its previous messaging that the border is closed and non-residents cannot come in.
Now, the NWT says non-residents may enter the territory but can then be prevented from further travel once they’re in – essentially, the moment they cross the border.
In a statement on Wednesday, the territory said the change happened on May 29 “and reflects an effort to more closely align … with the mobility provisions of the Canadian Charter of Rights and Freedoms.”
The NWT said there would be no practical change in how any rules are applied.
“While it will respect the right of any Canadian resident to enter the territory, the GNWT will still be enforcing the chief public health officer’s legitimate orders to restrict travel within the territory,” the statement continued.
The NWT said that included “restrictions on leisure travel within the territory.”
The territorial government is understood to hope the change in message will be enough to avoid facing action over a potential Charter violation.
The Canadian Civil Liberties Association (CCLA) had previously said the NWT’s travel restrictions violated Charter-protected mobility rights.
When did this mess start, and why?
On Monday and Tuesday, Premier Caroline Cochrane and health minister Diane Thom caused confusion by delivering almost completely opposed statements on the NWT’s borders.
Out of nowhere, Cochrane told the CBC tourists were welcome and could come north as long as they self-isolated for two weeks on arrival – which is at odds with the NWT’s messaging for the past three months.
Thom, a day later, told the legislature that leisure travel remained prohibited.
Statements by both Cochrane and Thom later on Tuesday gave some insight into the NWT’s scramble to redefine how things work at the border.
“We have come to the realization that the border restrictions we had in place were restrictive and possibly in contravention with the Canadian Charter of Rights and Freedoms as it relates to mobility,” Thom admitted in the legislature. “We have adjusted our policies accordingly.”
Cochrane later said: “When someone comes to the border, we can’t tell you that you can’t come to the border. You have a Charter right that says freedom of mobility.
“Once you step across the border, you are now in the NWT. At that point, our chief public health officer has the authority to say whether you’re allowed to travel in the Northwest Territories, to go further or not.
“Yes, they can come across the border. When they put one step in our border, it’s our jurisdiction.”
What does Dr Kandola say?
The effect of this manoeuvre seems to be a minimal change in what practically takes place at the border. However, in shifting its rhetoric, the NWT government risked confusing residents.
The ultimate outcome of Cochrane’s interpretation seems to be that by allowing people to take one step into the NWT, then telling them they can travel no further, the territory believes it avoids breaching anyone’s Charter rights.
Cara Zwibel, from the CCLA, said her association had sent no follow-up to the GNWT since its initial letter about the travel restrictions.
“I don’t believe this is a response to us, although it may be based in part on observing that we have started litigation on this issue elsewhere, in Newfoundland,” Zwibel said on Wednesday by email.
Territorial government communications staff have been frantically updating the GNWT’s website to reflect the government’s new interpretation of its own rules.
As an example, the GNWT Covid-19 website stated until Wednesday morning: “The NWT chief public health officer has prohibited ALL travel into the NWT by non-residents to prevent the spread of Covid-19. There are limited exceptions.” The word “all” was capitalized by the GNWT for emphasis.
After this was pointed out, the NWT government changed the same page to read: “Travellers arriving in the NWT must mandatorily self-isolate and stay at home for 14 days in Yellowknife, Inuvik, Hay River, or Fort Smith only.”
Meanwhile, the chief public health officer’s team said Dr Kami Kandola would not be delivering a briefing for reporters on Wednesday.
This will be the first week since March in which Dr Kandola has not held a briefing.
Her staff said there had already been plans to cancel the briefing before confusion broke out over the NWT’s travel restrictions, as Kandola has a busy week of meetings.
The chief public health officer has yet to make any individual comment about what is now happening at the NWT’s borders. The NWT government did, though, say Kandola was one of the officials issuing Wednesday’s joint statement.
What is actually changing, then?
If you just want to know how this affects you or your family and friends down south, the answer is: it probably doesn’t change anything, at least until Friday – when another update is expected.
Playing with the wording to avoid breaching anyone’s Charter rights doesn’t seem to have much immediate effect on how the rules work in real life, with the exception of allowing some people to reach isolation centres where previously they would have been turned back at the border.
Here is what the NWT says has changed:
“Prior to May 29, border officials asked people to turn around and return to their destination if they did not fit an existing exemption in order to meet our objectives.
“[Non-residents with no exemption will now] have the opportunity to voluntarily turn around. If they choose not to, they are informed that they must seek an exceptional circumstances exemption, and immediately self-isolate if they wish to proceed further in the NWT.
“The process … is an interim measure and the chief public health officer and her team are working diligently on amendments to our travel restriction and self-isolation order to more transparently protect mobility rights under the Charter.”
In other words, if you were previously barred from entering the NWT as a non-resident and couldn’t get an exemption, you will be allowed to enter into the territory but then stopped immediately and told you can go no further without an exemption.
If at that point you choose to apply for an exemption on the spot, you will be taken to an isolation centre and must stay there until an exemption is granted.
Later on Wednesday, the GNWT said if an exemption is not approved, you must leave voluntarily or face “enforcement actions.”
The process for getting an exemption, and the list of people who can get one, seems to remain the same.
So can tourists come now?
The GNWT confirmed you cannot, at this point, be exempted simply for being a tourist – you would need a better reason for travel.
That calls into question why Cochrane told the CBC on Monday that “tourism is on the table” and “we are hoping that people will take the advantage and see our beautiful territory.”
On Wednesday, the NWT government said Cochrane was talking purely about tourists from Nunavut coming to the NWT if a “travel bubble” is created between the two.
Yet Cochrane told the CBC “it’s important to realize the North has a lot to offer, it’s a beautiful, beautiful country up here,” which would be an unusual means of attracting Nunavut residents.
Moments earlier in the interview, she had stated people from other Canadian jurisdictions were “welcome” in the NWT “but they have to have a self-isolation plan.”
As things stand, the GNWT has indicated southern tourists with no exemption will be asked to turn around or taken to an isolation centre if they insist on requesting an exemption at the border. If that exemption is denied, they’ll be told to leave.
A new public health order is expected on Friday this week. That order will move the NWT to stage two of its pandemic recovery plan but may also tweak the travel restrictions.
It’s possible that the order could loosen restrictions to allow tourists, but Thom on Tuesday implied that would not be the case.
“The new order is primarily focused on people who are looking to move into the Northwest Territories and are starting or looking for a job … and students who may want to study at a post-secondary institution,” the health minister said in the legislature.
“Leisure travel in the Northwest Territories is still prohibited.
“If you do not have a job offer, a letter of acceptance from a post-secondary institution, or a signed-off statutory declaration along with an approved self-isolation plan from Protect NWT – or an exception for a family reunification visit or on compassionate grounds – you will not be allowed to travel further in the Northwest Territories.”