Civil liberties group to appeal border ban ruling in Newfoundland and Labrador

Law360 Canada (October 21, 2020, 4:08 PM EDT) -- Canada’s civil rights watchdog is appealing a Newfoundland court’s ruling that the province was right to close its borders to non-essential entry in light of the COVID-19 health crisis.

An official with the Canadian Civil Liberties Association (CCLA) confirmed the organization has filed notice that it will turn to the Newfoundland and Labrador Court of Appeal in a bid to have reversed a lower court decision that the province’s border ban, while indeed an infringement on people’s mobility rights, was a reasonable measure in dealing with the pandemic.

Last month, the province’s Supreme Court found that while the travel ban does violate s. 6 of the Canadian Charter of Rights and Freedoms, it falls under s. 1 provisions for reasonable exemptions.

“While restrictions on personal travel may cause mental anguish to some, and certainly did so in the case of Ms. Taylor, the collective benefit to the population as a whole must prevail,” wrote Justice Donald Burrage in his Sept. 17 ruling in Taylor v. Newfoundland and Labrador, 2020 NLSC 125.

The appeal includes Kim Taylor, a former resident who, along with the CCLA, launched that original challenge after she was initially denied entry into the province following the sudden death of her mother, despite her plan to self-isolate for 14 days.

“The argument is that Canadians have a right to move freely around the country and if governments take steps that restrict the right, they need to have compelling evidence that those restrictions are necessary and that they are not more intrusive than they need to be; that less intrusive measures aren’t sufficient,” said Cara Zwibel, director of the CCLA’s fundamental freedoms program. “In this case, there was a self-isolation requirement as a less intrusive measure that would have likely, in our view, achieved the same public health goals.”

Zwibel reckons the move to enact a travel ban was based, at least in part, on fear and rumours.  

“I think a lot of governments have taken a better safe than sorry approach,” she said. “Certainly their goal is to keep the people of Newfoundland and Labrador safe and to keep COVID-19 numbers down … and to maintain health-care capacity, but I also think that the steps they took to kind of go from [a] self-isolation requirement to saying some people can’t come in at all was fuelled a bit by fear and by rumours that people would not self-isolate or that people weren’t self-isolating, but not actually [having] evidence that that was happening.”

Another motivation to appeal was based on there being a broader legal interest, said Zwibel.

“The question that is coming out of this piece is: What kind of evidence do governments need to take restrictive measures in the face of this public health crisis, and how will courts scrutinize that evidence and how will they assess the government’s decision making? The question here is whether too much deference was given to the government and whether there is a need for courts to be more rigorous. That applies to restrictions that are in place in other provinces and territories that relate to travel, but it also applies to all sorts of other public health measures that some may feel unreasonably restrict a constitutionally protected right.”

Comment from Newfoundland and Labrador’s Department of Health and Community Services was not received by press time.

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