The Canadian Civil Liberties Association is appealing a decision by the Supreme Court of Newfoundland and Labrador to uphold the province’s controversial travel ban, which was introduced this spring to restrict the spread of the virus that causes COVID-19.
Michael Bryant, executive director of the CCLA, said the organization decided to file the appeal with the Supreme Court of Newfoundland and Labrador by Monday’s deadline because it doesn’t agree with a ruling that provinces or territories have the right to exclude a Canadian from entry.
Bryant said Canadians have a constitutional right to move freely within their country, and it’s not up to a province or territory to exclude a Canadian citizen.
This summer, Justice Donald Burrage ruled the province’s COVID-19 travel ban does, in fact, violate Section 6 of the Canadian Charter of Rights and Freedoms that allows Canadians to move freely through the country, but he said the ban is protected by Section 1, which allows reasonable exemptions to the charter.
“We are appealing because we cannot agree that provinces and territories have the power to erect borders to exclude Canadians, absent evidence that other measures like quarantines aren’t working,” said Bryant.
“It’s during a pandemic that we need constitutional rights to be upheld by the courts because governments are driven so often by fear.”
Cara Zwibel, a director at CCLA, said there was not enough evidence from the provincial government to deny entry to some people seeking to travel to the province.
“In Atlantic Canada and elsewhere in the country we have become increasingly concerned that provincial governments are putting up barriers to movement that are not reasonable or justified,” she said.
There was fear, but there wasn’t evidence.– Cara Zwibel
According to Zwibel, the evidence put forward by the province stated there were “concerns” and “rumours” that travellers were not self-isolating upon arrival.
“The issue really comes down to the Section 1 justification under the charter, the question of whether the government had the evidence that it needed to decide to put in place restrictions when the rule it had before those restrictions were in place was that people had to self isolate,” she said. “There’s really no evidence that anything more was needed.”
“There was fear, but there wasn’t evidence.”
During hearings this summer, Newfoundland and Labrador Chief Medical Officer of Health Dr. Janice Fitzgerald said she had not asked for precise models before ordering limits on travel into the province because the group doing that work was too new at the time.
Larger questions around travel rights
Lawyers for the CCLA and Halifax resident Kim Taylor filed the court challenge in May, after Taylor was denied a travel exemption to attend her mother’s funeral in Newfoundland and Labrador.
“In our view, the government’s evidence didn’t explain why the decision was made to completely prohibit travel for some when an isolation requirement would likely have been enough to achieve the province’s public health objectives,” said Zwibel on Monday.
“And at a more general level, this case is important because it asks whether governments are adequately protecting fundamental rights notwithstanding the significant challenges caused by the pandemic.”
While travel restrictions have changed since the pandemic began, there is no current timeline for further alterations. Residents of Atlantic Canada are allowed to travel within the Atlantic bubble without being required to self-isolate.
The day before Taylor applied to come to St. John’s, Fitzgerald issued a special order prohibiting anyone who lived outside the province from entering without an exemption issued by public health officials.
Taylor’s initial application was denied, she then appealed the decision and was granted entry to the province eight days after her initial application.
She launched legal action against the province, and the CCLA joined her case as a third party.
While there has been no date set for when the appeal will be heard, Zwibel said the timing of the case is “a little bit irrelevant,” since it is of wider legal interest.
“This has become about more than the particular order — this is really about what kind of evidence courts need and what kind of evidence governments need to make restrictions on fundamental rights that are protected by the constitution,” she said.
“Even if these restrictions are not in place by the time that this appeal is heard, this would be an important issue for the court to provide an opinion on.”
Without a vaccine, it is likely COVID-19 will be around for some time — and so, too, would restrictions, in some form or another, Zwibel said.
“The question of whether provincial governments can put up borders and restrictions to the movement of Canadians” is a new and novel legal issue, she said.
St. John’s lawyer Rosellen Sullivan will be representing the civil liberties group as the case is heard in the Newfoundland and Labrador Court of Appeal.
Newfoundland and Labrador Health Minister John Haggie said he is not surprised the CCLA is filing an appeal of the ruling, but the restrictions will stay in place until either a different court ruling is handed down or the province receives different advice from public health officials.
“I think there’s a drive from public health to keep some kind of restrictions in place, and at the moment my advice from public health is that we’re where we need to be,” Haggie said.
“If you look at the evidence from the experts … that was where we felt we needed to go, and I think our results since then have justified the decision, quite frankly.”
Haggie said he’s been watching the rising number of cases in other parts of Canada, pointing to Ontario, Quebec, B.C. and Alberta in particular.
The travel restrictions are a “key piece” of the province’s multi-pronged containment plans, Haggie said, and seem to be doing what they’re meant to do — mainly, keeping the number of cases of COVID-19 low.
“For the moment it certainly makes public health jobs a little bit easier. They’ve got a lot on their plate at the moment and recrafting a travel order is just additional workload they quite frankly don’t need at the moment,” he said.
“If we are told that that is no longer constitutional and has to be lifted, we will look at what our options are at that stage, but I think it would be premature to speculate on what those might be.”
As of Aug. 31, people who live outside the Atlantic region but who own a home in N.L. were allowed to start entering the province, but had to apply for a travel exemption before arrival.
The province’s COVID-19 information portal has a specific section on travel restrictions and requirements for rotational workers, as well.
As of Monday, there are 11 active cases of COVID-19 in Newfoundland and Labrador, all of them travel-related. There have been a total of 287 cases in the province, with 272 recoveries and four deaths.