Travel bans, unwarranted searches, and increased police power in NEwfoundland and labrador

The issue

Bill 38 is Newfoundland’s COVID-19 “emergency law” that was enacted 7 weeks after the emergency was declared. The total number of cases in the province at the time was approximately 17 and that number was decreasing for an entire month with the exception of one day.

Bill 38 gives “inspectors” – as defined by the Minister – the ability to conduct warrantless searches and gives the police the right to remove individuals to a point of entry, such as an airport or ferry terminal. The province has also used a Special Measure to ban non-residents from entering the province, with limited exceptions. This amounts to a Newfoundland “travel ban”, as well as essentially legalizing banishment.

We think this is unconstitutional. Provinces with much higher population densities and COVID cases than Newfoundland have been effectively managing the COVID crisis without resorting to these extreme measures.

CCLA has taken the position that these emergency measures violate numerous Charter rights including mobility rights, the freedom from unreasonable search and seizure, and the freedom from arbitrary arrest and detention.

On May 5, Kim, a Newfoundlander residing in Halifax received one of the toughest phone calls of her life. Her mother, whom Kim had visited every year and talked to on the phone every day, had passed away unexpectedly in Newfoundland. Kim knew about the emergency laws enacted the day before and sought an exemption. Kim had arranged to go to great lengths, including self-isolating at her parents’ house via a back-door entrance to the basement for 14 days. She had even arranged with the funeral director for her mother’s body to be held until Kim’s 14-day self-isolation was completed, at which point the funeral could be held. And she had already been working from home and following the social distancing guidelines of Halifax, Nova Scotia.

Kim initially did not receive a response from the government despite emailing and telephoning the number listed on the government’s COVID website. When she did, she was horrified to learn her request had been denied. Kim’s father would have to bury Kim’s mother, his wife of 55 years, without his daughter Kim.

Our recent work

2020 Supreme Court of
Newfoundland and Labrador

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 that process. The government eventually replied, dismissing our concerns, and Bill 38 remains the law.

On May 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 has asked the court to declare Bill 38 in violation of s.7 (life, liberty, security of the person) because it allows for the detention and removal of individuals from the province without due process, s.8 (protection from unreasonable search and seizure) because it authorizes warrantless searches without reasonable grounds, and s.9 (protection from arbitrary detention) because it allows for detention without the minimal constitutional standard of reasonable and probable grounds. We find that Bill 38 cannot be saved by s.1, which says limits on rights must be reasonable and demonstrably justified, but the restrictions on rights in this case are not. CCLA also asks that the Travel Ban be rescinded since it is beyond the province’s authority and violates Charter rights to mobility and liberty.

While CCLA and Kim hope for a speedy resolution to these developments, we will never back down from taking our concerns to court if that is what it takes to defend our constitutional rights.

UPDATES

August 4, 2020 – The hearing of the Application challenging the travel restrictions in place in Newfoundland began on August 4, 2020 and is set to continue until August 7. Despite the government of Newfoundland’s objection, the CCLA has been granted public interest standing to join Kim Taylor in challenging the travel ban. The Court did decide that the enforcement provisions contained in the Public Health Protection and Promotion Act (authorizing enhanced search powers and detention powers by the police) could not be challenged by the CCLA at this time.

May 20, 2020 – CCLA and Kim Taylor file Originating Application in the Supreme Court of Newfoundland and Labrador seeking to have the travel ban and provisions of the Public Health Protection and Promotion Act declared of no force or effect.

May 15, 2020 – Attorney General responds to CCLA’s letter dismissing our concerns.

May 11, 2020 – CCLA writes to the Attorney General of Newfoundland and Labrador and lays out our concerns about the constitutionality of the travel ban order and the amendments made to the Public Health Protection and Promotion Act that authorize increased police and enforcement powers.

MATERIALS

September 17, 2020 Press Release

September 17 2020 Decision

July 17, 2020 NL Government’s Brief

July 13, 2020 CCLA’s Brief

June 15, 2020 CCLA’s Factum

May 20, 2020 CCLA’s Application

May 20, 2020 Press Release

May 15, 2020 Attorney General’s response to CCLA’s letter

May 11, 2020 CCLA’s letter to NL outlining our concerns