Double Aspect

Last month, the Supreme Court issued its decision in Taylor v Newfoundland and Labrador, 2026 SCC 5, which upheld the constitutionality on a ban on travel into the province that had been imposed in the early weeks of the covid-19 pandemic. I would like to discuss this case, however belatedly, because it could be quite significant — and not in a good way — for constitutional interpretation in Canada. Or at least it could be quite significant if the majority opinion is to be taken seriously — which, as Taylor itself shows, the Supreme Court’s opinions seldom deserve to be. After a good run of cases in which the Court’s approach to constitutional interpretation was, I argued, purposivist in name only, and textualist or even, sometimes, originalist in substance, a vibes-only form of “interpretation” is back, though, as usual, the majority opinion neither repudiates these cases nor explains why it departs from them.

The issue in Taylor was whether the Canadian Charter of Rights and Freedoms guaranteed a freedom of interprovincial travel otherwise than for the purpose of moving to another province, and, if so, whether the Newfoundland travel ban was a reasonable limit on this guarantee. Sections 6(1) and (2) of the Charter with their headings provide:

Moving to another province is a right explcitly guaranteed by s 6(2) of the Charter; but Ms Taylor was not looking to move to Newfoundland, but merely to visit it, for her mother’s funeral. That made case rather more complicated, because the existence of a right to do so had never before been fully examined by the courts and because, as we shall see, the Charter‘s text is a bit of a mess.

The bottom line is that the Supreme Court was unanimous in finding that there was indeed a right to interprovincial travel, and also unanimous in finding that the impugned ban on it was justified in the circumstances in which it was imposed. But, though unanimous as to the existence of the right, the Court split three ways as to its source. The majority, in an opinion by Justices Karakatsanis and Martin (with whom Justices Côté, O’Bonsawin, and Moreau agreed), argues that

a broad right to mobility simpliciter is foundational to s. 6 as a whole. Subsections (1) and (2) focus on different aspects of the right of free movement; s. 6 as a whole is most coherent if a broad right to move freely is understood as underlying the more specific rights in both subsections. [65]

For Justices Kasirer and Jamal (with whom the Chief Justice agrees), the right to travel is protected by s 6(2). For Justice Rowe, by s 6(1).

In this post, I summarize the three opinions at length. I then explain, briefly, why as a textual matter I agree with Justices Kasirer and Jamal. In a separate post which will be published shortly I consider some of the methodological issues raised by the three opinions in detail. Time and energy permitting, I might also write a further post about the issues that concern the justification of the limitation of the right identified in Taylor and indeed other Charter rights, but that won’t be right away.

The majority begins with a lengthy discussion of the principles of constitutional interpretation. This “is crucially different from statutory interpretation”, [70] because a constitution is meant to be long-lasting and difficult to amend. It is, accordingly, a “living tree”, [70] and constitutional interpretation follows “a longstanding purposive approach”. [71] As the majority explains,

the purpose of a right or freedom is to protect the interests and values embodied by the individual Charter provision. So, before a court can interpret how the Charter restrains state action, it must first determine what interests the provision in question protects, and why it protects them. That requires a generous rather than legalistic approach, aimed at securing the full benefit of the Charter’s protection

The majority does refer to the recent quasi-textualist cases in saying that “[a] court begins the interpretive exercise by first reading the words of the provision”, which are “a key indicator of the interests it protects and why it does so”. [79] But it pointedly rejects “rigid textualism”. [79] Similarly, “[a] right’s historical origins may reveal something about the interests underlying it, or shed light on why those interests are important, but it does [sic] not restrict the form their protection may take”. [80] Besides text and history, the purposes of Charter rights can be inferred from “[o]ther provisions of the Charter“, [81] “international law and comparative constitutional law”, [82] and “the drafting history of a provision”. [82] Finally, “the most large, liberal, and generous option” [83] is to be preferred when multiple interpretations are available, though the familiar mantra about not “overshooting the purpose” of a Charter right remains.

The majority then procedes to discuss bilingual interpretation. Here again it insists that constitutional interpretation is radically different from the statutory sort. In the latter, the search for shared meaning of the English and French versions of a text often leads the interpreter to the narrower of the two, but that would not do when interpreting the Charter, because “[p]resumptively preferring the narrower version would run contrary to this Court’s consistent direction to interpret rights liberally and broadly”. [93] Instead, “[w]hen reasonably capable of more than one meaning, both authoritative versions of Charter rights are simply read together, and each gives colour and content to the interests protected and the purpose of the right at issue”. [99] If anything, it is “the broader of the two” [100] distinct meanings that ought to prevail, rather than the narrower one.

 Turning to s 6 itself, the majority finds that a “broad right of movement … would have been presumed to be part of any specific mobility rights the Charter enshrined … and is an underlying assumption that infuses”[105] “s. 6 as a whole”, [106] The majority points to “[t]he text of s. 6, which describes rights against exile and banishment, and rights to move for travel, residence, or work [and so] indicates a broad underlying interest in free mobility”. [109] It also refers to “the historical tradition of mobility rights” [118] going all the way back to Magna Carta and indeed before, international legal instruments such as the International Covenant on Civil and Political Rights, and “the constitutional traditions of other democratic, common law countries”. [129] At the same time, “[t]he Charter … is a distinctively ‘made in Canada’ instrument” “designed and intended to promote national unity”, [138, referring to a statement by Pierre Trudeau] and “the ability to move around within our vast country allows each Canadian to view themselves as members of a collective whole, and not merely as an individual within a local or regional community”. [141] 

As for ss 6(1) and 6(2), “[e]ach subsection addresses additional, related entitlements that build on the central right of mobility”. The freedom of movement within Canada is protected by both. In the case of s 6(1), “[t]he right to remain within Canada naturally connotes a right to move freely within the country as a whole — not just within whatever province one happens to occupy”. [159] The headings, English and French, of s 6(1) also suggest a broad right. And this interpretation “most effectively promotes the purposes of s. 6’s mobility rights interest”. [166] Meanwhile, in the case of s 6(2), the French text, which speaks of a right “de se déplacer dans tout le pays” — and not, for instance “de déménager” — “connotes a right to travel freely throughout Canada, and does not necessarily require any intent to settle in a location”. [169] The provision, in effect, protects two distinct rights, one to travel for any purpose, and the other to move to another province. While the English text may not be so clear, “[a]dopting a narrow interpretation would ignore the clear breadth of the French text, and render the English ‘to move to and take up residence in any province’ repetitive and redundant”. [172] Similarly, the clarity of the French text overcomes any doubts that might have been provoked by either the French or the English sub-heading of s 6(2). 

The French text of s 6(2) is central to the way in which Justices Kasirer and Jamal approach the case. They accept that s 6 of the Charter “must be given a purposive interpretation”, [266] an approach that “starts with a reading of the text of the relevant provision” though it “does not end there”. [267] In particular, “careful attention to the detailed language chosen to give expression to constitutional mobility rights” [268] is required.

Like the majority, Justices Kasirer and Jamal discuss the interpretation of bilingual constitutional provisions. They too caution against defaulting to the narrower of the two versions, but for them, this might also be important in the statutory context. Indeed, they are generally less insistent than the majority on there being a significant difference between the two, and seem to see “the purpose of the Charter provision” as playing a similar role to “the legislative intent”, instead of pointing to a difference between these concepts as justification for contrasting constitutional and statutory interpretation, as the majority does.

Like the majority, Justices Kasirer and Jamal read the French text of s 6(2) as embodying two distinct rights, to travel across Canada and to shift one’s residence to another province. The English text, meanwhile, is ambiguous. As a result, “the French text, which conveys a dual guarantee, should … be preferred as a preliminary matter at the first stage … [b]ut this meaning must be assessed against the purpose of s. 6(2)”. [292] These purposes have to do with “concerns about federal cohesion”, as well as “the values of autonomy and dignity”. [296] Since the “dual-rights interpretation embodied in the French text more clearly aligns with the purposes of s. 6(2) than the single-right interpretation”, [297] it is preferable. It is also supported by “international human rights instruments to which Canada is a party”, which “offer useful context”. [298] 

Section 6(1), by contrast, is about movement across Canada’s borders, not “the right to interprovincial movement, except on an ancillary basis”. [301] As a textual matter, to say that the right to remain in a place implies a right to freely move in that place is to beg the question and, “[s]tated simply, to remain is not to move“. [308; emphasis in the original] As for the purpose of of s 6(1), it is to safeguard “the rights to enter and remain in Canada under the protection of the Charter and to have access to the Canadian judicial system to enforce those rights”. [312] Moving or travelling from one province to another does not advance these purposes, since the Charter applies everywhere.

Justice Rowe’s general approach to interpretation is not all that dissimilar to that of Justices Kasirer and Jamal. He too endorses purposive interpretation, but cautions that it must be “a purposive interpretation of the Charter provision as written”, and that “[i]t is methodologically unsound to begin by asking ‘What must a well-designed constitutional instrument protect?’, and then proceed to read that protection into the Charter“. [329] Also like Justices Kasirer and Jamal, he stresses that “[w]ithin the purposive approach, the analysis must begin by considering the text of the provision”. [330] However, Justice Rowe also attaches significant weight to the Charter‘s headings and sub-headings.  

Yet Justice Rowe comes to the opposite view about what ss 6(1) and 6(2) actually mean. In s 6(1), the word “remain” “strongly connotes a right to remain within the borders of Canada, rather than a right only to stay in one’s current location in Canada, or a right only to stay in one’s current province”. [331] This view is reinforced by the broad language of both the English and the French subheadings of s 6(1). By contrast, s 6(2), even its French text, does not support a right to interprovincial travel, because

The words “de se déplacer” therefore apply only to situations where one travels with the goal of moving to a new province. If s. 6(2)(a) was intended to protect interprovincial travel simpliciter as a separate right, such a right would have been situated in a separate paragraph.

And in contrast to s 6(1), the subheadings of s 6(2) support its narrower reading.

Justice Rowe then considers other factors. In particular, as he reads the origins and purposes of ss 6(1) and 6(2), the latter has an “economic emphasis” which the former lacks, being instead “instead tied to the fact that a Canadian is a citizen of the whole country, not just a denizen of a province”. [380] Hence it makes sense that the home of a right to interprovincial travel, outside an employment context, is s 6(1). Justice Rowe adds that “this interpretation … gives effect to the ‘living tree’ doctrine”, [381] though he does not explain. Instead, he immediately cautions that

this doctrine means that the interests that the Charter right seeks to protect can be actualized in different ways in response to changing social circumstances … not that the interests that the Charter protects will continue to multiply, year after year. [381]

Leaving the broader methodological issues aside for now, I think that, as a textual matter, Justices Kasirer and Jamal are right. The most obvious reason for this is simply the plain meaning of the relevant words. The right to remain in a place is, indeed, not necessarily the right to move between that place’s subdivisions, though as a practical matter the two may well go together. By contrast, the wording of the French text of s 6(2)(a) — “se déplacer dans tout le pays” seems to me to point to a broader right than only moving, long-term, from one province to another, and were they to be given a different meaning, they words would be otiose, since one obviously needs to move to a different province before taking up residence there.

But there is further language in ss 6(1) and 6(2) which points in the same direction, although none of the three opinions in Taylor addresses it in any meaningful way. At most, Justice Rowe might be hinting at this point, and if he is, he is getting it backwards. It is the designation of the holders of the rights respectively protected by these provisions: Canadian citizens in the case of s 6(1), and not only citizens but also permanent residents in s 6(2). The entitlment to free international travel is a key difference between citizens and permanent residents, not only in Canada but in other countries (English-speaking ones at any rate — they’re the ones I’m familiar with) and, romantic notions notwithstanding, a key reason why permanent residents go through the expense and rigmarole of obtaining citizenship. It stands to reason, then, that the right guaranteed to citizens alone is that of international mobility. By contrast, the point of permanent residency — in contrast to lesser immigration statuses such as work or student visas, and in common, to this extent, with citizenship — is that it entitles its holder to live, work, and study in Canada, without further permission or restriction (see, by implication, s 30(1) of the Immigration and Refugee Protection Act). So it makes sense that interprovincial mobility, whether for employment purposes or otherwise, is a right both of citizens and of permanent residents. Justice Rowe seems to emphasize its connection to citizenship, but while it is, of course, important that citizens be able to go anywhere in Canada, they are not, in this respect — in contrast to international mobility — situated differently from permanent residents.

These textual considerations are all that was really necessary to dispose of the interpretive question in Taylor. It did not have to be a 200-page decision. But it is, in no small part because none of the opinions is content to be textualist. As promised, a detailed discussion of the ways in which they are not, and of why this has the potential to do all sorts of mischief, will follow in the next post.