On May 11, 2020, CCLA sent a letter to the Government of Newfoundland and Labrador stating our position that Bill 38 was unconstitutional for a number of reasons. We asked that they review the new measures put in place and offered our assistance in the process. The government eventually replied, dismissing our concerns.
On My 20, 2020, CCLA partnered with Kim to take the Newfoundland government to the province’s Supreme Court over the travel ban and the restrictive measures in Bill 38.
CCLA asked the Court to declare Bill 38 in violation of s. 6 (mobility rights), as well as other Charter rights because it allows for various investigative steps including detention and removal of individuals from the province without due process. We argued that the law cannot be saved by s. 1, which says that limits on rights must be reasonable and demonstrably justified, but the restrictions on rights in this case are not. CCLA also asked that the travel ban be rescinded.
The province’s Supreme Court rendered a decision in September of 2020 and while the Court found that the travel ban violated the section 6 Charte right to mobility, it found it could be justified under section 1. CCLA is pursuing this case before the Newfoundland and Labrador Court of Appeal. The Court of Appeal will first consider whether it should hear the appeal since the ban is no longer in place. However, all parties in the case are urging the Court to hear and decide the appeal on its merits despite it being technically moot. The case raises novel questions about the scope of mobility rights in Canada and the extent to which government can limit Canadians’ rights to move freely around the country.