Legal groups consider suing over pandemic lockdown

N.B. TRAVEL BAN, HEALTH DATA PRIVACY IN ALBERTA ON RADAR OF LEGAL ADVOCACY GROUPS

As lockdown provisions continue across Canada, at least two legal advocacy groups are mulling the possibility of heading to the courts to force provincial governments to roll back some of the more draconian rules that are in place to fight COVID-19.

In particular, New Brunswick’s travel ban and Alberta’s measures allowing health data to be given to police, in some circumstances, have raised the ire of legal groups.

“We’re considering considering it,” said Joanna Baron, executive director of the Canadian Constitution Foundation, the same outfit that tried to tackle New Brunswick’s cross-border beer ban, when reached by the Post on Saturday and asked about the travel ban.

“It is a pretty clear-cut constitutional violation.”

New Brunswick — along with other jurisdictions, including Nunavut and Quebec — has a ban on travel in and out of the province. Blaine Higgs, New Brunswick’s premier, and health officials in Nunavut have been explicit in their belief that strict travel provisions have shielded many citizens from the outbreak.

The Canadian Constitution Foundation is not moving forward with a challenge of New Brunswick’s ban at the precise moment, Baron clarified. At this point, she’s on more of a fact-finding mission. “Courts aren’t open,” she said.

Elsewhere, in Alberta, the Justice Centre for Constitutional Freedoms (JCCF) has taken issue with a government diktat that allows health authorities to hand over COVID-19 health information if a person intentionally coughs or sneezes on a police officer. The group says it’s considering legal action.

“Individuals have a reasonable expectation of privacy regarding their personal medical information, including and especially the results of laboratory tests,” said JCCF lawyer Jay Cameron in a news release. “The existence of a declared public health emergency does not suspend the protections of the Charter.”

Cameron could not be reached Saturday for an interview.

Emmett Macfarlane, a University of Waterloo political science professor, said it’s not surprising that groups are beginning to take issue with some of the measures governments have enacted.

“The longer the emergency situation continues, the more likely restrictions or infringements on personal liberties are to face challenge,” Macfarlane said.

New Brunswick has had border controls in place with other provinces since March 25. As of May 6, five air travellers had been denied entry to the province, and, over the 10 previous days, an average of 38 vehicles had been turned away each day from entering the province.

“I am discussing our border controls with the allparty cabinet committee, and if we find room to improve, I assure you that we will make changes,” said Higgs.

Baron said there’s a clearcut constitutional issue involved: interprovincial travel and trade fall under federal jurisdiction, not provincial, she said. And, there’s a potential test case already: On Thursday, Daniel Arefi flew to Moncton from Toronto, planning to live with his parents, his father told CBC.

He was arrested at the airport, with peace officers saying he was a visitor, therefore, a non-essential traveller and in violation of the provincial state of emergency.

A judge issued a $292.50 fine on Friday and had him shipped back to Toronto, CBC reported.

“What is absolutely clear is that provincial authorities don’t have the authority ... to regulate interprovincial travel,” Baron said.

Macfarlane said the two cases above aren’t especially “clear-cut” and “the issue will be whether these restrictions are deemed reasonable, and whether the federal government is willing to put up with provincial action in what is clearly federal jurisdiction.

“And in an emergency context governments are inevitably going to be less sensitive to potential rights infringements of their policies, so interest group activity like this can be important,” he said.