Even in a pandemic, borders cannot be hermetically sealed. But the pandemic has reconfigured the basis for exception in revealing ways. The label ‘essential’ has become the stamp on the notional permit that authorizes movement. We now think of workers in health care, sanitation, public transportation and the food and agriculture industries as essential. Let me stretch the idea of essential for present purposes.
As most states, including Canada, have moved to close borders in response to the pandemic, citizens have remained free to re-enter their countries of nationality. But it bears noting that citizens who exhibit any symptoms of COVID-19 illness are inadmissible. Some scholars contend that admission of citizens is legally essential, given that s. 6(1) of the Canadian Charter of Rights and Freedoms guarantees to citizens the right to enter and remain in Canada, but the issue has not been litigated; its constitutionality would turn on whether the limitation could be ‘demonstrably justified in a free and democratic society.’ So far, bio-status trumps status, even citizenship status, and it applies whether the symptomatic individual travels by air, sea or land.
The government’s recognition of [non-symptomatic] citizens’ right to enter is unremarkable; more noteworthy were the Prime Minister’s repeated public announcements urging Canadians abroad to return to Canada as soon as possible.
