21 September 2020

Rumpole and The Old Bull #nlpoli

Mr. Justice Don Burridge
(Not exactly as illustrated)

Supporters of the travel ban won a victory last week as Supreme Court Justice Don Burridge said it was okay to ban travel into the province during an emergency even though it violates the Charter of Rights and Freedoms.

They might want to hold off on their celebrations.

In his ruling, Burridge adopted the provincial government’s wording for the travel ban, which lumps it together with other restrictions on travel. 

[4]            On 29 April 2020 the CMOH issued Special Measures Order (Amendment No. 11), to take effect on 4 May 2020, limiting entry to residents of Newfoundland and Labrador, asymptomatic workers, and those in extenuating circumstances.  On 5 May 2020, the CMOH issued Special Measures Order (Travel Exemption Order), expanding those circumstances when entry into the province would be permitted.  As neither Order served as an outright ban on all travel, I will henceforth collectively refer to these two special measures as the “travel restriction”.

The result - and even though he refers to both things as being distinct at different parts of his ruling - Burridge ignores the very important distinction between travel restrictions and the order than bans mainlanders from coming to the province. 

And that makes all the difference.

Travel Restrictions

Let’s start by getting the history of the Chief Medical Officer’s travel-related orders straight.

Her first order under the public health emergency declaration, issued on 20 Mar 20, directed that people entering the province enter a period of isolation lasting 14 days on arrival.  The reasons for this are simple enough to understand.  The disease came from outside the province.  The known incubation period for the disease was up to 14 days.  As such,  anyone who entered isolation on entry for 14 days would either develop the disease and remain quarantined until the case resolved or  - after 14 days of nothing – could go on their merry way without any risk to the people of Newfoundland and Labrador.

The Chief Medical Officers initial order was so sweeping that – for example – people working in the offshore oil industry or the fishery or those on the interprovincial ferries or cargo vessels would be subjected to the ban.  The result, had the thing been left unamended, would have been to cut off the province entirely from supplies of food and medicine.  The CMO’s order would have shut down the provincial economy.

As it turned out, someone noticed the error and an amended order appeared the next day giving appropriate exemptions.

Note two things.  First, the order shows the importance to the CMO of travel restrictions in containing the disease.  Second, it shows the CMO’s tendency to go well beyond what was necessary or to act without fully considering all the implications of her orders.   

In the event, the travel restrictions with the exemptions for essential travel (including migrant workers) limited the introduction of disease into the province. Up to the time the CMO introduced the travel ban in early May, and ever since then, anyone entering the province went into isolation and either left isolation free of illness or developed the disease and recover.  No one violated the travel order before the first of May, and none have done so since then. In other words, the modified travel restrictions from 21 March 2020 have worked as intended.

The Travel Ban

On 29 April 2020,  the CMO announced a new travel order that would come into effect on 04 May. The CMO characterized it at the time as an amended order but this was not the case. It explicitly prohibited anyone from entering the province except for residents, essential workers and, people who would be given exemption under “extenuating circumstances.”  The original order did not define the third category. It was popularly called the travel ban and it remains a travel ban, except to Don Burridge.

The CMO did not explain why she issued this order, which, as Burridge found, violated Canadians fundamental rights and freedoms. She simply said it was necessary, “as we move forward.” 

In the context, it appears the CMO’s decision was a reaction to the political and public pressure to ease restrictions on the public in what became the “Alert” system of gradually expanded restrictions that supposedly lessened restrictions. 

Burridge quotes Fitzgerald, who gave other explanations for her decision to ban non-residents from the province.  The quotation below includes Burridge’s underlining:

At the time of introduction, many other provinces were seeing increasing cases of disease and we were having success at controlling the outbreak here. There were concerns raised regarding compliance with self-isolation orders from municipalities and there was concern that as cases continues [sic]  to rise in other parts of the country, people would attempt to come to Newfoundland and Labrador to avoid COVID-19, potentially increasing the importation risk.

 Note the part Burridge didn’t underline.  Fitzgerald used the claims that people were violating the travel restrictions (self-isolation) to justify her ban on non-residents entering the province.  There was no evidence at the time this happened and, as health minister John Haggie subsequently acknowledged, there never was such a violation. The government investigation thousands of complaints and found none that violated the isolation rules.  Stories of “tourists” were just figments of over=-wrought imaginations.

And even if they were true, Fitzgerald knew that, as of the 25th of March, the number of new cases started to decline dramatically.  SRBP posted about the declining number of new cases on 13 April 2020 and, as it turned out, the government’s own analytics team identified the same trend and circulated their findings within government at the same time.  Two weeks later - that is, as the Chief medical Officer *increased restrictions* the decline was even more dramatic than it had been earlier in the month.

Burridge’s lengthy decision discusses six questions.  The crucial part comes down to two paragraphs:  one in which he quotes Dr. Janice Fitzgerald’s rationale for imposing the travel ban – and then the next paragraph in which Burridge says, in effect channeling Jim Dinn,  “Good enough for me.”

What Burridge leaves out is crucial. He ignored the phantom travelers that Fitzgerald relied on to justify her imposition of what Burridge found to be violations of Charter rights.  There was no evidence to support Fitzgerald’s rationale in the paragraph he quoted.  Fitzgerald did not seek any outside advice or a second opinion before imposing the ban.

All of that was in evidence in front of him. Burridge ignored it. He also could have applied a little logic of his own.  How can it be, one wonders, that Nova Scotia and New Brunswick have achieved precisely the same near-complete absence of the disease as Newfoundland and Labrador but without barring non-residents from entry?

Her could have also considered the changes Fitzgerald made to her order.  The changes undermine her contention – accepted by Burridge – that the travel ban on non-residents was solely for the purpose of protecting vulnerable people in Newfoundland and Labrador.  That may have held up in the original one but immediately on announcing it, Fitzgerald abandoned the rationale for her own decision.

She gave in initially by bargaining with the Leader of the Opposition.  Ches Crosbie told the House of Assembly he bartered support for the arbitrary detention powers amendments to the public health law in exchange for the exemption categories Fitzgerald issued on 04 May.  The exemptions have a peculiar ring to them, as they allow all sorts of people to come to the province if they have some sort of blood connection or were former residents.

And what didn’t fit those categories fell into the category of secret exemptions.  There was no exemption to grant the complaint in the case Burridge ruled on but yet she got an exemption once she went to the media.  The same thing happened in other cases.  Altogether, more than 15,000 travelers applied for exemptions and the CMO staff denied entry to only 3,000.

The case should have resolved on facts and evidence and yet on the crucial point of justification, Burridge abandoned both.  That’s the only way he reached his decision that allowed the government to ban non-residents from entering the province.  The the weakness in the decision that will likely lead to another court overturning it, if not in the Court of Appeal here, then, surely in the Supreme Court of Canada when it gets there.