05 May 2020

Troubling travel ban may be illegal, unconstitutional #nlpoli

Government of Newfoundland and Labrador
 guards at COVID-19 Border Check Point
(not exactly as illustrated)
No other province in Canada has banned travel into the province by non-residents in the way Newfoundland and Labrador has done during the current public health emergency.

Under Special Order No. 11, issued on 29 April 2020, “[a]ll individuals are prohibited from entering Newfoundland and Labrador, except for the following:
a.  residents of Newfoundland and Labrador, 
b.  asymptomatic workers and individuals who are subject to the Updated Exemption Order effective April 22, 2020, and 
c.  individuals who have been permitted entry to the province in extenuating circumstances, as approved in advance by the Chief Medical Officer of Health.”
There is a definition of resident provided in the order.

There is provision for an exemption granted by the Chief Medical Officer but no indication of the reasons why such an exemption might be granted, or the time delays involved.

The power to do this comes from section 28 (1) of the Public Health Promotion and Protection Act.

In making the announcement, the chief medical officer offered no explanation or justification for the except that she felt it necessary to amend the existing restriction on individuals entering the province in order to deal with COVID-19.

There have been no confirmed reports of travelers violating the ban.  Rumours about tourists, covered by news media the day before the new order, lacked any evidence either that tourists had entered the province.  There is no information in public that any travelers had violated restrictions on people entering the province and caused a new outbreak.

To the contrary, the number of active cases in the province continues to decline, with very few new cases having been reported in the past two weeks.

In response to a reporter’s question about the constitutionality of the ban, health minister John Haggie replied on Monday that section 13 of the public health protection law says any measures imposed during an emergency should be limited to what is necessary. 

That reply did not address the question of whether or not the ban violates the guarantee under the Charter of Rights and Freedoms.  Nor did the minister provide an explanation of why a ban on entry to all non-residents, except for specific exempt individuals who are also free from other restrictions, was necessary.

Section 6 (2) of the Charter provides that every Canadian has the right to “move to and take up residence in” another part of Canada.  On the face of it, this section would not confer on Canadians the right to travel but to travel related to residence.  The people covered by this section of the Charter and potentially abused by the travel ban would be any people who own property and who lie in the province periodically. 

Haggie also said other provinces had adopted similar travel bans. 

They have not.  

Paragraph 17 of New Brunswick’s emergency order  prohibits all but essential travel and provides a general description of essential and non-essential travel.  It also leaves police with discretion.  It does not bar people from traveling to their property within the province. 

Prince Edward Island similarly restricts entry to the province to essential travel but does not bar travel by non-residents.

Quebec has limited non-essential travel to regions within the province.  As in New Brunswick and Prince Edward Island, Quebec allows that police may ask questions of individuals stopped at roadway check points to determine whether an individual may enter the region.  Despite having a very high number of active CVD cases, Quebec is systematically eliminating these regional restrictions.

Potential issues with the Newfoundland and Labrador ban:
  • Potential constitutional violation. (Section 6(2))
  • Absence of explanation or justification (potential violation of Public Health Promotion and Protection Act)
  • Unparalleled scope and type of travel restriction (complete ban on non-residents).
  • No description of potential reasons for exemption that could be granted by Chief Medical Officer. 9Lack of transparency and clarity)
  • No provision for travel related to child-custody or similar orders.
  • No allowance for emergencies.

Of these, the first two are the most serious.  The order may be unconstitutional.  Someone should challenge it in court.

More likely, the ban is excessive and unnecessary.  This has both political and legal dimensions. Politically, the government owes a duty of transparency to the public to explain why it is taking a measure as draconian as banning all travel to the province by non-residents.

Legally, the absence of an explanation is suspicious. Government officials are clearly aware of the legal obligation on them under section 13 of the health protection law to implement measures proportionate to the need.  After all, someone provided the health minister with a briefing note that used a circular argument in defence of the measure. To paraphrase, the briefing note said something to the effect that the law says we must only do what is necessary, so since we have done something, it must be only what is necessary, proper, and right.

Such an argument displays disrespect for the audience if not downright contempt. But it’s arrogant content masks a more significant issue by misrepresenting what section 13 actual says.

The entire section states that “Where an individual's rights or freedoms are restricted as a result of the exercise of a power or the performance of a duty under this Act, the regulations or an order made under this Act or the regulations, the restriction shall be no greater than is reasonably required in the circumstances to respond to a communicable disease, health hazard, public health emergency or contravention of this Act, the regulations or an order made under this Act or the regulations.”

This section is not an admonition to abide by the Charter.  The first part of the sentence acknowledges that a special measure under the Act may restrict an individual’s rights and freedoms in a manner envisaged by the Charter.

The section directs that any “restriction shall be no greater than is reasonably required…” to accomplish the task.  In other words, officials may do what they need to do but no more.  It puts an implicit limit on any order. 

The available evidence is that the restrictions set out in the order dated 20 March 20 (disappeared from the government’s website) were working.  They directed that all people arriving in the province - except for specific categories of workers - had to self-isolate for 14 days.  There is no evidence anyone failed to comply with this order and that the breach caused infection.   

With that as context, the persistent failure by government officials to explain why they implemented a more extreme restriction suggests that they are not confident the order will meet a challenge under s. 13.  At the very least, they seem to be aware they do not have a strong case.

The simplest way to implement a measure is to explain it.  Here’s what we are doing.  Here’s why.

The fact they won’t explain it is suspicious.  The most obvious example of a government official not taking the logical way out of a situation like this was Gil Bennett and the lowest cost option thing.  They never looked at alternatives to Muskrat Falls before deciding to go ahead.  They made one up.  That’s why they never released proof they looked at more than one alternative. (To be the lowest cost option, you need to have more than two options.)

There’s more.

The Chief Medical Officer slipped it in as an “oh by the way” move and suggested it was just a minor change.  That makes the move even more suspicious since a complete ban on travel is not minor.