Page - 307 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

307The Right of Citizens Abroad to Return During a Pandemic effects on the right protected is not disproportionate to the govern- ment’s objective.30 There is little doubt that the Government of Canada could meet the first two hurdles. The objective to protect the health of the Canadian population was pressing and urgent, and the measure to ban travellers exhibiting signs or symptoms of COVID-19 was ratio- nally linked to this objective. However, it is questionable whether the government could meet the other two conditions. This measure did not impair the right in question as little as possible, as it was both over- and under-inclusive. It targeted Canadian citizens exhibiting symptoms that could be indicative of COVID-19 but that could also be associated with many other conditions, such as other infectious pulmonary diseases, non-infectious pulmonary diseases, a common cold, or flu. The Government of Canada was asking for an assessment to be made by airlines representatives who are not medically trained. As such, they could deny boarding to Canadian citizens who were not COVID-19 positive and accept on board citizens who could have been COVID-19 positive but were asymptomatic. This measure also had the perverse effect of leading some travellers to hide their condi- tion out of fear of being refused boarding, as has been reported by the media.31 Finally, critics claim that the transfer of migration manage- ment to private carriers increases risks of arbitrariness and discrimi- natory practices (racial profiling).32 Contrary to other situations where the measure chosen was the only means by which the government could meet its pressing and substantial objectives,33 in this case there were a range of options that would have allowed for the repatriation of all Canadian citizens. For example, on regular flights, airlines could have isolated the few citi- zens exhibiting symptoms. Apart from having to wear masks,34 these 30. R v Oakes [1986] 1 SCR 103, 26 DLR (4th) 200. 31. Dave Seglins, Lisa Mayor & Linda Guerriero “How Sick Canadian Travellers Are Masking COVID-19 Symptoms to Get Through Airport Screening”, CBC News (25 March 2020), online: <www.cbc.ca/news/investigates/how-sick-cana- dian-travellers-are-masking-covid-19-symptoms-to-get-through-airport-screen- ing-1.5508276>. 32. Anna Tims, “Barred from Flying from a British Airport—Over a Visa He Didn’t Need”, The  Guardian (22 October 2018), online: <www.theguardian.com/ money/2018/oct/22/airlines-bar-passengers-visa-rules-no-recourse>. 33. Alberta  v  Hutterian  Brethren  of  Wilson  Colony, 2009 SCC 37 at para 62. 34. The obligation to wear a face mask during a flight was only imposed on April 19, 2020, a month after the initial interim order. See Transport Canada, supra note 20.