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| Government of Newfoundland and Labrador guards at COVID-19 Border Check Point (not exactly as illustrated) |
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.
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.)
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.
-srbp-
