Clause 41 and 42 of the 1215 Magna Carta reference restrictions on mobility rights to both residents and non-residents. Merchants and men were permitted to enter and leave the country freely, except in times of war - where mobility was severely restricted and may have been completely outlawed.
Currently, there are a number of acts which regulate mobility and immigration, particularly in times of turmoil. While section 9 of the Charter of Rights and Freedoms prevents arbitrary detention or imprisonment (see our previous post for how it relates to clause 39 of the Magna Carta), that section can be overridden so long as there are reasonable limits.
The Immigration and Refugee Protection Act provides laws for non-Canadian residents entering and/or remaining in Canada [1]. Division 6 of that Act provides authority to arrest and detain an individual considered a threat to national security, regardless if there is a warrant or not. While the term ‘national security’ is not defined within the Act itself, related legislation defines the term as an “urgent and critical situation of temporary nature that may endanger lives … or affect Canada’s sovereignty or security” [2].
The Emergencies Act permits restrictions on travel during public welfare emergencies (such as natural phenomenon or disease); restrictions on assembly or travel during public order emergencies (defined as “serious threats to national security”); special law making powers in times of declared international emergencies, including search and seizure of homes, property, and people; and authority to make any order and regulation believed to be necessary in times of war emergencies (emphasis added) [3]. In all cases, consultations are required before declaring an emergency and regulating society, and for affected individuals compensation may be provided if harm, loss, or injury is suffered [4]. Finally, the Act prevents detention based solely on race, national or ethnic origin, color, religion, sex, age, mental disability or physical disability [5].
So, unlike the Magna Carta, although our current legislation permits regulations and restricts mobility during times of war and emergency, the powers of lawmakers are also severely restricted and are subject to a multiplicity of checks.
Do you think that the government should have the power to arrest and detain individuals during times of emergency? Is it a necessary part of Canadian society or should there be more limitations on government action? Let us know what you think in the comments below, or send us a tweet @msmagnacarta ! And stay tuned for tomorrow’s post on the right to be tried within a reasonable time.
[1] Immigration and Refugee Protection Act, SC 2001, c 27
[2] Emergencies Act, RSC 1985, c 22 (4th supp), s 3
[3] Ibid at part I – part IV
[4] Ibid at s 48
[5] Ibid at s 4(b)
