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.
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.
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 the process. The government eventually replied, dismissing our concerns.
On My 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 asked the Court to declare Bill 38 in violation of s. 6 (mobility rights), as well as other Charter rights because it allows for various investigative steps including detention and removal of individuals from the province without due process. We argued that the law cannot be saved by s. 1, which says that limits on rights must be reasonable and demonstrably justified, but the restrictions on rights in this case are not. CCLA also asked that the travel ban be rescinded.
The province’s Supreme Court rendered a decision in September of 2020 and while the Court found that the travel ban violated the section 6 Charter right to mobility, it found it could be justified under section 1. CCLA is pursuing this case before the Newfoundland and Labrador Court of Appeal. The Court of Appeal will first consider whether it should hear the appeal since the ban is no longer in place. However, all parties in the case are urging the Court to hear and decide the appeal on its merits despite it being technically moot. The case raises novel questions about the scope of mobility rights in Canada and the extent to which government can limit Canadians’ rights to move freely around the country.
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