March 23, 2020.
The Honourable Chuck PorterMinister of Municipal Affairs & Housing14th Floor North, Maritime Centre1505 Barrington Street, P.O. Box 216Halifax, NS B3J 2M4
We are writing regarding the Direction under a Declared State of Emergency that you recently issued advising that all public parks and beaches would be closed and that all persons entering the province will be checked at the border. We have a number of questions and concerns about this Direction.
We do appreciate the significant challenges that the current public health crisis presents and do not suggest that extraordinary measures cannot be taken if legally authorized, necessary and proportionate. However, it is important that the public understand the rationale for the steps being taken by government so that they can assess the questions of necessity and proportionality for themselves. Now more than ever, it is vital that governments be transparent about the steps that they are taking and communicate clearly with the population about the reasons behind restrictive measures.
With respect to the closure of all provincial and municipal parks and beaches, what is the basis for this decision or the evidence that such measures are necessary? The government’s website notes that public trails will be open to allow for exercise but that gathering limits and social distancing guidelines must be observed. First, this exception regarding provincial trails is not explicitly laid out in the official Ministerial Direction. Second, it seems likely that there would be more physical space to allow for these limits and guidelines to be respected in parks and on beaches than on trails – why can the same standards not apply in these spaces? Third, we are most concerned with the impact that these closures will have on the homeless population, a population that is particularly vulnerable at this time. What accommodations or special measures is the government taking to protect these individuals? If they have no access to shelter, where are they to go but a public space, park or beach? No government can create an order that cannot be complied with – so what is your accommodation to those for whom shelter is unavailable? Should the homeless seek shelter within a park, where would you have them relocate?
Regarding checks at the provincial border, we would be grateful for details about how these checks will be carried out, and by whom. As you know, Canadian citizens and permanent residents enjoy freedom of mobility within Canada, protected by s. 6(2)(a) of the Canadian Charter of Rights and Freedoms. Based on the language of the Ministerial direction alone, one might think that Nova Scotia plans to turn Canadians away, however the government’s website states that:
Nova Scotia borders will tighten to travellers and all entry points (land, sea, air) will be closely managed. Anyone entering the province will be stopped, questioned, and told to self-isolate for 14 days.
There are also exceptions laid out on the government’s website that are not apparent from the Ministerial direction; this level of detail should be included in the legal instrument under which the government purports to exercise its authority and it should be made explicit that the province does not intend to turn Canadian visitors away. We also question the requirement that all those entering the province self-isolate for 14 days regardless of whether they have engaged in self-isolation for that period in another part of Canada. As noted at the outset, restrictions on rights and liberties, even in these exceptional circumstances, must be necessary and proportionate.
We would be grateful for your response.
Cara Faith Zwibel, LL.B., LL.M.Director, Fundamental Freedoms Program
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