CCLA Writes to NL: Reconsider Travel Ban and Bill 38

Monday, 11 May 2020

Hon. Andrew Parsons
Attorney General – Department of Justice and Public Safety
Government of Newfoundland and Labrador
4th Floor, East Block – Confederation Building
St. John’s, NL A1B 4J6
Fax: (709) 729-0469
justice@gov.nl.ca

Re: Mobility Rights and Extraordinary Police Powers  

Dear Mr. Attorney,

We are writing you about the recent decisions by your government in relation to the COVID-19 pandemic. The Special Measure and statutory amendments may deserve a n update and amendment, mindful of  constitutional risks arising under both the  Charter of Rights  and the division of powers. As the superintendent of the rule of law in the province, we urge you to consider the following.

Pursuant to  a Special Measure issued by the Chief Medical Officer of Health  (Special Measures Order, Amendment No. 11) , you r government has purported to ban non-residents from entering the province, with limited exceptions. Under the guise of establishing mechanisms to enforce this ban, you r government introduced  change s  to the province’s  Health Protection and Promotion Act  which empowers  police to conduct warrantless searches and the power  to remove individuals – apparently residents and non-residents alike – from the jurisdiction.  Notably, t hese steps were not taken at the outset of the pandemic, but instead have come to fruition seven  weeks after the province initially declared a state of emergency, and despite the fact that the province’s number of active COVID-19 cases currently stands at 1 7 and , but for a small increase experienced on May 7, 2020, has been declining for a month.

Where necessary and proportionate, the current pandemic has required some temporary measures that limit  the rights and freedoms of Canadians.  Other provinces have managed to do this in a fashion consistent with the  Canadian Charter of Rights and Freedoms  — Canada’s supreme law applying  throughout the country, always. Any measures taken that restrict the rights of Canadians must be both reasonable and  demonstrably  justified. As you know, this means that restrictions on rights must be based on  evidence  of necessity and proportionality ; fear and speculation are not sufficient.

Moreover, Canada ’s confederation  has long enjoyed open borders and the free movement of people within it. Banning  “outsiders” from exiting one province, to enter another, is likely not within any Province’s jurisdiction , under the  Constitution Act, 1867.

Regarding mobility rights, pursuant to section 6(2)  of the  Charter , individuals may take up residence in any province and have the right to earn a livelihood in any province. The mobility rights of Canadians are sacrosanct; not even the notwithstanding clause in the  Constitution Act, 1982 can oust their application.  The only derogations from section 6 that are permitted are those that can be justified pursuant to section 1  of the  Charter , namely those that are both reasonable, and demonstrably justified. In our view, the province’s travel ban is neither. Our hope is that your government will take steps to rescind the ban to avoid a court challenge.

On another front, t he changes made to extend  police powers beyond their constitutional limits violate  the right to be free from unreasonable search and seizure under s. 8 of the  Charter , and the right to be free from arbitrary arrest and detention under s. 9  of the  Charter. Section 50(1) of the  Health Protection and Promotion Act  on its face authorize s  warrantless entry into any premises , contrary to well established constitutional jurisprudence.

Further, the fact that such warrantless entry appears to be open to “inspectors” under the Act and not “peace officers” is of little comfort since the definition of “inspector” can be expanded by simple Ministerial designation. In any event, section 28.1 of the Act can now be invoked to authorize peace officers to provide “necessary assistance” to ensure compliance with a measure taken by the Chief Medical Officer of Health. Notwithstanding s. 28(3), our view is that the statute does not clearly preclude the possibility that the Minister of Public Safety could authorize peace officers to enter a private home without a warrant under the “necessary assistance” provision contained in s. 28.1(1)(d). These statutory  provision s simply miss  the mar k, and require careful amendment.

The new provisions also authorize warrantless detention and the removal of individuals to a specified location including a point of entry  – presumably referring  to an airport or ferry terminal. In effect, the statute authorizes banishment, without  due process, for an alleged contravention of public health orders.  While we understand that the amendments to the statute were prompted in large part by the so-called “travel ban” set out in the Special Measures Order (Amendment No. 11), it is worth noting that nothing in the law limits the power of removal to non-residents. Further, the Province may have entered federal domain on this front.  Exerting provincial power s  to remove to “points of entry, ”  pursuant to s. 91(13) of the  Constitution Act, 1867,  interferes with the  federal jurisdiction over ferries between two provinces.

In our view, the se new measures that your government has put in place will not survive  judicial review. Prior to instituting the travel ban, the province required all those entering to self-isolate for 14 days. There is no evidence demonstrating  that this requirement was ineffective or insufficient. To the contrary, your province has managed to keep its COVID-19 numbers low , indicating  that there is strong compliance with public health measures , including the requirement that visitors self-isolate. Instituting even more severe restrictions on mobility,  and  authorizing overbroad police powers – even in the name of public health and safety – would require  evidence of necessity and proportionality that do not exist.

Although we understand that your government has offered an interpretation of the statute arguing  that it is constitutional, the statute speak s  for itself.  I t’s the legislature that determines the content of laws , not your legal opinion.  The simplest means of aligning your interpretation with the constitutional risk raised by the current statutory wording is to amend the law to make it more clearly within constitutional boundaries.  You rs  would not be the first Province to have to clarify its laws during the emergency management of COVID-19, and probably it won’t be the last.

We note that the Special Measures Order (Amendment No. 11) requires the Chief Medical Officer of Health to review the Order every five days. We urge you to undertake your quasi-judicial duties  as chief legal officer to the Cabinet.  We urge your Ministry to advise the Chief Medical Officer of the constitutional insufficiency  of the Order , so as to  rescind the travel ban. We further urge your government to introduce amendments  to bring the  Public Health Protection and Promotion Act  into compliance with the Constitution.

None of the foregoing is to suggest that there is a one-size-fits-all solution to emergency management in Canada.  It goes without saying that your province has particular consider actions unique to Newfoundland & Labrador.  Each province and territory have adopted an emergency management approach that fits the particular public health and distinctive circumstances of the region.  But all must do so within the confines of the Constitution.

The CCLA is  an independent, non-profit NGO, standing up to power and defending freedom in Canada since 1964.   We have appeared in courts across Canada hundreds of times, and have commenced litigation against governments during COVID-19 in other jurisdictions.  We would be grateful for the opportunity to discuss all this with yourself or your officials, and would appreciate your attention on this important matter.

Yours truly,

Michael Bryant
Executive Director

Cara Zwibel
Fundamental Freedoms Program Director