Travel ban breaches human rights: lawyers
‘If it’s not justifiable, a lot of harm is being done,’ says Geoff Budden
A new class-action lawsuit challenging the province’s Covid-19-related travel ban is not intended to undermine the government’s attempts to protect the public from the spread of the coronavirus, says one of the lawyers behind it.
It’s an attempt to ensure the efforts are consistent and don’t breach fundamental rights, he says.
“Not everything that may restrict the spread of this horrible illness is necessarily the right thing to do,” says Geoff Budden, who, along with fellow lawyer Bob Buckingham, filed the lawsuit Tuesday on behalf of seasonal Newfoundland and Labrador residents.
The suit, which has not yet been certified as a class action, alleges the provincial government is breaching protected public rights with its travel ban, implemented last month as part of a special measures order under the Public Health Act in light of the COVID-19 pandemic. The order bans everyone but permanent residents of Newfoundland and Labrador, asymptomatic workers and others who have been granted specific exemptions from entering the province.
Budden and Buckingham say the order — which they believe the province didn’t have the authority to make in the first place — violates multiple sections of the Canadian Charter of Rights and Freedoms, mostly seriously Section 6, which guarantees freedom of movement.
By law, citizens and permanent residents have the right to move freely, live and work in any province.
Budden acknowledges the province has the authority to limit those freedoms in outstanding circumstances such as a public health crisis, but the issue lies in whether or not it exerted that authority legally. It’s his view that it did not.
“The government might argue, ‘We can impose reasonable limits on those charter rights, they’re not absolute rights,’” Budden says. “We agree; yes, they’re not, but the limits you impose are not reasonable and not proportionate. They’re arbitrary, and arbitrary and disproportionate, unreasonable restrictions are not permitted.”
The government has made a distinction between how permanent residents and seasonal residents are treated, Budden says.
The representative plaintiffs in the case are Werner and Sharon Koehler, Ontario residents with a home in Bay Roberts. The Koehlers also operate Seacliff House Productions, an art gallery and antiques shop, in the Conception Bay North community from June to October every year.
The statement of claim indicates the Koehlers are willing to self-isolate and abide by all other public health guidelines established by the chief medical officer of health if permitted to come to the province. As it stands, the Koehlers will suffer extensive losses by being banned from attending to their business in Bay Roberts, they say.
“The government has made it quite clear that they’re not planning to grant exemptions to people who simply wish to move here temporarily to use their homes,” Budden said. “That’s why I think it’s arbitrary. If it was healthdriven, one presumably would have the same regime in place for everybody.
“It’s a pretty extreme measure and if it’s not justifiable, a lot of harm is being done.”
A statement from the provincial Department of Justice notes officials are reviewing the case, having been served with the statement of claim Wednesday afternoon.
“Government will continue working co-operatively with the chief medical officer of health to take the necessary steps to protect public health,” the statement provided to The Telegram says.
During Wednesday’s regular COVID-19 briefing, Premier Dwight Ball stressed the same message.
“People have the right, and so they should, to be able to actually file those claims,” he said of the lawsuit. “These claims are there, but from a public health (perspective), measures have been put in place. We recognize they’ve been put in place for a reason, as difficult as those decisions would be.”
Ball notes other provinces have taken similar steps to limit travellers, as travelling is “the most likely cause of bringing COVID into the province.”
This is the second legal challenge launched against the travel ban. Nova Scotia resident Kim Taylor, a Kilbride native who was denied permission to enter the province to attend her mother’s funeral last month, but was later granted entry, is also arguing the ban breaches her constitutional rights. The Canadian Civil Liberties Association has joined her in the lawsuit, which will be heard in court in August.
Like lawyers in that case have indicated, Budden expects he and Buckingham will ask the province to show them the medical science behind the travel ban.