Newfoundland travel ban spurs charter challenge

After a woman was initially barred from entering Newfoundland to attend her mother's funeral, she and the Canadian Civil Liberties Association are heading to court to argue whether the ban on non-essential travel into the province violates Canada's Charter of Rights and Freedoms.

The case will be a test of just how far provinces can go, during the COVID-19 pandemic, as they exercise emergency powers to prevent Canadians from moving from one province to another.

“We recognize the uncharted territory that we're in, and that governments are grappling with really significant and new challenges,” said Cara Zwibel, the CCLA'S Fundamental Freedoms Program Director. “But there does have to be some accountability. There has to be some requirement when you're restricting people's rights to justify why we're doing that, and saying 'better safe than sorry' is not sufficient for the purposes of constitutional rights. We need some evidence.”

The court challenge targets Newfoundland's order prohibiting non-residents from entering the province at all unless they're doing work deemed essential, such as for the food supply chain. The challenge also targets the legislation granting police new powers to enforce the health order, including removing non-residents from the province.

A non-resident can apply for an exemption, but that didn't work for Kate Taylor, who's originally from Newfoundland but now lives in Halifax. After her mother suddenly passed away, she was rejected for an exemption to attend the funeral despite having a plan for 14 days of self-isolation. The exemption was eventually granted after Taylor went public with her story.

“The claim alleges that the province's travel ban and new enforcement powers violate sections 6, 7, 8 and 9 of the Canadian Charter of Rights and Freedoms and cannot be justified,” said the CCLA'S news release. “In addition, the travel ban is not within the competence of the provincial government.”

Lawyers for Taylor and the CCLA are acting pro bono and are not seeking costs from the province.

Although many provinces have some level of public health travel restrictions in place, such as mandating 14 days of self-isolation for anyone entering the province, Zwibel said the strictest travel bans that she's aware of are in Newfoundland, Prince Edward Island, New Brunswick and the three territories.

THE TRAVEL BAN IS NOT WITHIN THE COMPETENCE OF THE PROVINCIAL GOVERNMENT.

Those jurisdictions have very few COVID-19 cases and are trying to keep it that way, but she said that doesn’t give them free rein to infringe rights. If there are less restrictive ways to reach public health goals, such as what other provinces are doing, those should be used first, Zwibel said.

“There has to be some rigour when governments are taking these steps,” she said. “Because the ‘better safe than sorry’ rationale, taken to its logical conclusion, can really justify an awful lot. I don’t think that’s the kind of place we want to be. I don’t like to sound like an extremist, but ‘better safe than sorry’ is the justification for a police state.”

She said another problem with the bans is that they’re unclear in practice.

“We use this term of essential travel or essential business as if it has some clear, permanent definition, but there’s a lot of discretion that can be exercised in deciding what’s essential,” she said. “I think there’s been a pretty clear privileging of economic activity over social activity . ... After two months of settling into this world of isolation, I think that at some point seeing your family does become essential for people’s mental health and well-being.”

The charter’s Section 1 allows for reasonable limits on rights if such measures can be justified in a democratic society. The big question is whether provincial travel bans during a pandemic qualify, especially given that the pandemic continues to change in severity.

Kerri Froc, a law professor at the University of New Brunswick, said she can’t speak for other provinces but she believes New Brunswick’s order banning non-essential travel into the province would likely withstand charter scrutiny.

She said it depends which section of the charter you’re talking about, but the one most directly at stake is the right of Canadians to move to, take up residence in, and pursue a livelihood in any province.

“Section 6(2) of the charter is the right most relevant here, and it is purely an economic right,” she said. “The history underscores that it was meant to ensure economic opportunities were distributed equally to Canadians. It probably doesn’t cover purely personal travel.”

She said it’s a more complicated question whether the order discriminates against non-residents of New Brunswick, but it may be justified because other areas are seeing a higher level of contagion.

Ultimately, it all comes down to whether a province can justify the travel ban as a reasonable limit on a charter right.

“In the context of a health pandemic and the need to distance populations, I would imagine courts would give governments massive deference in that analysis,” Froc said. “That deference has a limit and at some point extension of the emergency order starts to look unreasonable and unjustifiable under Section 1. We aren’t there yet.”