Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter. Photo by Anastasiia Chepinska on Unsplash
🦠 On Friday, the Supreme Court of Canada will release its decision in Canadian Civil Liberties Association, et al. v. Newfoundland and Labrador, et al. This is the Court’s first real chance to say what s. 6 mobility rights mean when public health concerns meet provincial boundaries.
🎯 Last week, the SCC released R. v. Fox, 2026 SCC 4. The Court dismissed the appeal and ruled that a lawyer charged with a criminal offence can invoke the innocence at stake exception to solicitor‑client privilege to seek access to their client’s privileged communications for use in their own defence.
🤖 65% of Fantasy Courts players called it correctly, while the SCCbot missed. Score one for the humans!
🔮 Head over to Fantasy Courts to lock in your predictions for this week’s decision. Scroll down for details on this week’s case or a recap of last week’s judgment.
Case to Predict: Do Mobility Rights Include Interprovincial Travel?
Appeal by leave from Taylor v. Newfoundland and Labrador, 2023 NLCA 22
What Happened?
Early in the pandemic, Newfoundland and Labrador’s Chief Medical Officer of Health issued orders under the Public Health Protection and Promotion Act restricting entry by non-residents, subject to exemptions. Kimberley Taylor, who lives in Nova Scotia, sought an exemption to enter the province to attend her mother’s funeral in 2020. Her request was denied.
The application judge upheld the statutory scheme as valid, found the denial infringed s. 6(1) mobility rights (by reading “remain in Canada” as implying interprovincial mobility), but held the infringement was justified under s. 1. By the time the case reached the Court of Appeal, the orders had been lifted, and all parties agreed the appeal was moot, but they still asked the court to decide it. The Court of Appeal declined and dismissed on mootness grounds.
What Was Argued at the SCC?
CCLA (Appellant): They say the case should have been heard despite mootness because future pandemics are foreseeable and guidance on s. 6 is needed now. On the merits, they argue s. 6(2)(a) protects a right to interprovincial travel simpliciter (not just moving provinces to take up residence), relying heavily on the French text and the way the SCC has described s. 6(2) in cases like Black and Canadian Egg Marketing. They also argue the province fails minimal impairment under s. 1: self-isolation and a more targeted approach to non-essential travel were available, and the evidentiary basis for non-compliance panic was thin.
NL (Respondent): They also say the Court of Appeal should not have refused to hear the case as moot, but on the merits they push back hard on the idea that the Charter contains a general right “to move.” They say reading s. 6(1) as a broad internal mobility right would make s. 6(2) largely redundant. They argue the purpose and history of s. 6(1) is about banishment or exile-type state action, not domestic travel limits. On s. 1, they emphasize deference to public health decision-making on an urgent record, and say self-isolation alone was an inadequate substitute for a multipronged response.
What Else Should You Know Before Making a Prediction?
This case has two layers: mootness and mobility. I can’t imagine the SCC would grant leave and dismiss it on mootness grounds, so I’m inclined to think we’ll get a decision on the merits regarding mobility rights. I suspect the Court will want to endorse a broad mobility right within Canada, but I could see it upholding the restriction under s. 1 given the public health concerns. There have been dozens of leave applications regarding COVID-19, and this is the only case the SCC agreed to hear. My takeaway from that is that the Court has been reluctant to interfere with government decisions on emergency public health matters, and I would be surprised to see that change in this case. I’m leaning towards appeal allowed, but only on mootness, with the Crown being successful on s. 1.
SCCbot
This season, we’re also asking the SCCbot, an AI tool that predicts Supreme Court of Canada decisions, what it thinks the Court will do. The SCCbot is currently 2 for 3. For this week, the SCCbot is saying appeal allowed, with a moderate confidence of 70%. It reasons that since both parties are aligned on the mootness issue it will allow on that ground. On the merits, it says the Court may still largely favour the Province, rejecting the trial judge’s s. 6(1) “remain” rationale and/or upholding s. 1, so the practical impact may be mostly doctrinal guidance.
Previous Case Recap: R. v. Fox
R. v. Fox, 2026 SCC 4
Held (7:2): Appeal dismissed. Rowe and O’Bonsawin JJ. dissenting. The Court of Appeal’s decision to acquit the lawyer is upheld.
What it was about: The Crown appealed after evidence from a wiretap was excluded in the prosecution of a lawyer for attempted obstruction of justice. The wiretap captured a call with her client. Part of the call was later ruled privileged and sealed, but the Crown relied on the non-privileged portion.
Key points:
- A lawyer can invoke the innocence at stake framework (McClure & Brown) to seek access to a client’s privileged communications for use in their own defence. Ethical duties aren’t absolute in a way that can nullify fair trial rights.
- Even so, the civilian monitor’s continued listening in this case after it was clear a lawyer was involved was an “obvious” s. 8 breach, and the evidence was excluded under s. 24(2) because admitting it would bring the administration of justice into disrepute.
📊 Fantasy Courts results: 65% of players were right, while the SCCbot was wrong.
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-Tom Slade