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Yesterday, Justice Donald Burrage ruled that Newfoundland and Labrador’s (NL) COVID-19 travel restrictions for non-residents will remain in place, despite the fact that they violate the Canadian Charter of Rights and Freedoms and the rights of Canadians to move freely throughout the country.
In a news report, Burrage was quoted saying the infringement of rights was “fleeting” and outweighed by the public health crisis and Section 1 of the Charter.
The contentious case began in May of this year, when lawyers acting for Halifax resident Kim Taylor and the Canadian Civil Liberties Association (CCLA) filed a court challenge because Taylor was denied entry to attend her mother’s funeral in NL.
The day before Taylor’s application for an exemption, the government had passed Bill 38, an Act to amend Newfoundland’s Public Health Protection and Promotion Act, banning non-essential travel into the province and granting the police expansive new powers, including the power to detain individuals who were not complying with public health orders.
For more on the case and the ramifications of yesterday’s ruling The Halifax Examiner contacted Cara Zwibel, the Director of the Fundamental Freedoms Program with the Canadian Civil Liberties Association.
Linda Pannozzo (LP): For readers who might not be familiar, tell us more about how and why this legal challenge got started?
Cara Zwibel (CZ): CCLA was monitoring interprovincial travel restrictions since the outset of the pandemic. Newfoundland had initially put in a place a requirement that those entering from out of province self-isolate for 14 days. In early May, they changed their approach and the Chief Medical Officer of Health issued a Special Measures Order that restricted travel to residents and essential workers. It also allowed people to apply for exemptions. This was done at a time when the COVID curve in Newfoundland had been effectively flattened.
We also learned about a woman – Kim Taylor — who had applied for an exemption to travel to the province after her mother passed away. The province initially denied her request despite the fact that she had a self-isolation plan. The province also gave police new powers to enforce the travel ban – allowing them to remove people to points of entry to the province.
We were concerned about this overreach and alarmed that a province would move to restrict rights further despite seeing success in its goal of reducing COVID transmission. We joined with Ms. Taylor to challenge the law.
LP: Were you surprised by today’s ruling? What are your thoughts on the outcome of the case?
CZ: While we are disappointed that the Court found the travel restrictions in this case were justified, we are very glad to see that the Court recognized that Canadians have the right to move freely throughout the country. Restrictions on this right have to be justified by governments.
In this case, the government of Newfoundland and Labrador tried to argue that there is no right to move freely, only a right to move to and reside in a province, or earn a livelihood there. The idea that Canadians’ mobility rights could be construed so narrowly was very concerning, and one of the reasons we wanted to take this case to the courts.
The ruling is not a big surprise — we understood we would be facing an uphill battle and that a court would be reluctant to second-guess the judgment of the Chief Medical Officer of Health in circumstances where we are dealing with a still new virus.
LP: Could this ruling set a precedent with regards to our rights and freedoms?
CZ: Our hope is that the ruling conveys the message to governments across the country that the right to move freely within Canada is protected and can only be limited where there are clear and compelling reasons to do so, and evidence of necessity. In our view, in this case, the government didn’t have sufficient evidence. The Court disagreed. But the important principle that comes out of the case is that limits on mobility rights do have to be justified.
LP: One of the things I found interesting as I was reading the Factum in the case, was that part of the reason Newfoundland and Labrador’s old Communicable Diseases Act was replaced in 2018 was because the old Act provided authority to order individuals to be detained or investigated, or even quarantined. At the time, John Haggie, the province’s minister of health and community services noted “these [measures] are autocratic, they belong to a different era and they predate the patriation of the Constitution.” What do you make of that lack of historical perspective when the new law was then recently amended to more resemble the old Act, and also what it all means in light of this week’s court ruling?
CZ: It was concerning to us to see how quickly the government was willing to impose significant restrictions on Charter protected rights. The threat posed by COVID-19 is certainly a serious one, but given that it is likely to be with us for some time, we want and expect governments to take a measured approach, recognizing that serious incursions into basic human rights have to be backed up with evidence of necessity and proportionality.
LP: It’s been a while since I’ve actually gone and looked at the Charter of Rights and Freedoms. According to the Charter our rights and freedoms are not unlimited, but if a limit is imposed, it must be justifiable. In this week’s ruling, Justice Burrage found the travel ban was protected by Section 1, which allows for reasonable exemptions to the Charter. Why do you think the limits on mobility in the case of Kim Taylor were unreasonable or not demonstrably justified?
CZ: Our focus in the case was on the fact that the requirement that was in place before the travel restrictions (i.e. the requirement that people entering the province self-isolate for 14 days) was working.
The government’s materials trying to justify the move to more restrictions focused on the fact that some municipalities were “concerned” that some might not adhere to the self-isolation rule, and that there were lots of reports to a snitch line saying people were breaking the rules. But the fact is that there was no evidence this was actually happening. No charges were laid as a result of the complaints of rule-breakers, and the government didn’t put forward any evidence that the concerns of municipalities were grounded in anything other than fear. In our view, this was not a reasonable basis on which to increase the restrictions placed on mobility rights.
LP: This pandemic has been characterized by public health officials as a public health emergency. As a result, many people seem to be OK with the temporary reduction in rights and freedoms if it will help save lives and get us through this. Why is the suspension of Charter rights a big deal from a civil liberties perspective?
CZ: There are good reasons to question the approach governments take even if they limit our rights in ways we are willing to accept, or for reasons we agree are important.
First, we are now six months into this “emergency” and there is no obvious end in sight. People may be willing to have their rights suspended for a period of time, but when there is no clear path out of this, rights restrictions need to be scrutinized more closely and justified more clearly. We also want governments to have good reason to believe (and thus good ways to convince us) that the restrictions on our rights will actually help save lives and get us through the pandemic.
There is also a basic understanding in a liberal democracy that individuals have a significant degree of autonomy in how we live our lives and spend our time. This pandemic has made our lives subject to extensive government regulation — keeping us out of parks, dictating how many people can come into our homes, and denying us the opportunity to grieve with our family when someone passes away. These things matter, and governments need to be accountable for the decisions they make and asked to justify those that appear arbitrary, unnecessary or excessive.
LP: With the embrace of digital contract tracing and the significant up-tick in the use of digital platforms during the lock down, it’s easier for me to see how something like a reasonable expectation of privacy — one of the legal rights enshrined in the Charter — could be eroded as we move forward from this period. But the right to move about freely within the country doesn’t seem like something we really run the risk of losing. What are your thoughts on that? Do you think there could be an erosion of mobility rights in some way, especially in light of Justice Burrage’s ruling?
CZ: I do worry about mobility rights in Canada. We have never had a situation before where some provinces kept Canadians out, or required applications to enter.
The future of the virus is a big unknown. How long are we willing to allow some provinces to shut their borders? There are people who own homes in Atlantic Canada and some of them don’t know when they will be able to return. Even the requirement to self-isolate for 14 days after travelling from one part of the country to another is likely to create real challenges for people. If a student moves from Montreal to study in Halifax, can they realistically return to Montreal to see their family during the holidays? If they have to self-isolate for two weeks upon arrival, any travel at all may not be feasible. This may seem trivial to some, but our mental health depends a lot on our support systems and our ability to access them. For some, mobility rights are key to this.
LP: Do you think that because we tend to take our civil liberties for granted, we might not even recognize when they are being eroded?
CZ: Yes, there is always a risk in a relatively free society like Canada that we become too complacent. We have to be vigilant about our rights. Many accept restrictions on rights because they are seen as temporary, but many of these restrictions could become part of our “new normal.”
LP: Here in Nova Scotia, the government granted itself and the police expanded powers by declaring a State of Emergency on March 22 “to help contain the spread of COVID-19.” In a state of emergency, as you know, the police are authorized to enforce orders and here it’s under the Health Protection Act as well as the Emergency Management Act, and citizens are being encouraged to call the police if they notice that someone isn’t following the rules. Does it worry someone like you that the state of emergency is still in place, despite there being little to no circulating virus in the province since the middle of May? In other words, should there be a metric in place for ending it?
CZ: Yes — this is a very significant concern. An emergency is, by definition, supposed to be a temporary situation. It cannot become the status quo. Exceptional powers exist for exceptional circumstances.
This isn’t to say that there should be an all or nothing approach to managing the public health risk posed by the virus. But in jurisdictions where the virus is well under control, steps should be taken to end the exercise of some of the extraordinary emergency powers that governments and law enforcement have. If necessary, another state of emergency can be declared in the future. And the government should provide some indication of how to know when the emergency is over. Otherwise, the risk of abusing power is too great.
LP: What should we be watching out for with respect to constitutional rights in the coming months?
CZ: There is a lot to look out for. So many aspects of our lives are now subject to regulation, often by multiple levels of government. As we move forward we need to be mindful of restrictions on our freedoms of movement, our rights to protest and question our governments on pandemic management as well as other policy areas, our right to privacy and our right to be treated equally — because we know that the public health measures in place don’t impact everyone equally.
We need to be asking questions about the impact that many of the public health measures are having. For example, if we see widespread school shutdowns, we need to think through the implications for our young people of not going to school and whether the harms of that outweigh the risk of harm that COVID presents. We have been operating these last few months with a laser focus on the virus, understandably given its novelty and the threat it poses. But it is not the only threat to Canadians’ health and security. And we shouldn’t treat it that way.
LP: Will the CCLA be appealing the decision?
CZ: We are reviewing the decision and considering our options.
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