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N.L.'s COVID-19 travel ban decision to be appealed, Canadian Civil Liberties Association says
The organization doesn't agree with a ruling that provinces or territories have a right to exclude Canadians
CBC News· Posted: Oct 19, 2020 1:21 PM NT
The Canadian Civil Liberties Association says it is filing an appeal of the Supreme Court of Newfoundland and Labrador's decision to uphold the province's COVID-19 travel ban. (Gary Locke/CBC)
The Canadian Civil Liberties Association is appealing a decision by the Supreme Court of Newfoundland and Labrador to uphold the province's controversial travel ban, which was introduced this spring to restrict the spread of the virus that causes COVID-19.
Michael Bryant, executive director of the CCLA, said the organization decided to file the appeal with the Supreme Court of Newfoundland and Labrador by Monday's deadline because it doesn't agree with a ruling that provinces or territories have the right to exclude a Canadian from entry.
Bryant said Canadians have a constitutional right to move freely within their country, and it's not up to a province or territory to exclude a Canadian citizen.
This summer, Justice Donald Burrage ruled the province's COVID-19 travel ban does, in fact, violate Section 6 of the Canadian Charter of Rights and Freedoms that allows Canadians to move freely through the country, but he said the ban is protected by Section 1, which allows reasonable exemptions to the charter.
"We are appealing because we cannot agree that provinces and territories have the power to erect borders to exclude Canadians, absent evidence that other measures like quarantines aren't working," said Bryant.
"It's during a pandemic that we need constitutional rights to be upheld by the courts because governments are driven so often by fear."
Cara Zwibel, a director at CCLA, said there was not enough evidence from the provincial government to deny entry to some people seeking to travel to the province.
"In Atlantic Canada and elsewhere in the country we have become increasingly concerned that provincial governments are putting up barriers to movement that are not reasonable or justified," she said.
There was fear, but there wasn't evidence.
- Cara Zwibel
According to Zwibel, the evidence put forward by the province stated there were "concerns" and "rumours" that travellers were not self-isolating upon arrival.
"The issue really comes down to the Section 1 justification under the charter, the question of whether the government had the evidence that it needed to decide to put in place restrictions when the rule it had before those restrictions were in place was that people had to self isolate," she said. "There's really no evidence that anything more was needed."
"There was fear, but there wasn't evidence."
During hearings this summer, Newfoundland and Labrador Chief Medical Officer of Health Dr. Janice Fitzgerald said she had not asked for precise models before ordering limits on travel into the province because the group doing that work was too new at the time.
Larger questions around travel rights
Lawyers for the CCLA and Halifax resident Kim Taylor filed the court challenge in May, after Taylor was denied a travel exemption to attend her mother's funeral in Newfoundland and Labrador.
"In our view, the government's evidence didn't explain why the decision was made to completely prohibit travel for some when an isolation requirement would likely have been enough to achieve the province's public health objectives," said Zwibel on Monday.
"And at a more general level, this case is important because it asks whether governments are adequately protecting fundamental rights notwithstanding the significant challenges caused by the pandemic."
While travel restrictions have changed since the pandemic began, there is no current timeline for further alterations. Residents of Atlantic Canada are allowed to travel within the Atlantic bubble without being required to self-isolate.
Since the Atlantic travel bubble opened on July 3, mask wearing is mandatory at the St. John's International Airport. Residents of Atlantic Canada are allowed to travel within the bubble without being required to self-isolate. (Gary Locke/CBC)
The day before Taylor applied to come to St. John's, Fitzgerald issued a special order prohibiting anyone who lived outside the province from entering without an exemption issued by public health officials.
Taylor's initial application was denied, she then appealed the decision and was granted entry to the province eight days after her initial application.
She launched legal action against the province, and the CCLA joined her case as a third party.
While there has been no date set for when the appeal will be heard, Zwibel said the timing of the case is "a little bit irrelevant," since it is of wider legal interest.
"This has become about more than the particular order — this is really about what kind of evidence courts need and what kind of evidence governments need to make restrictions on fundamental rights that are protected by the constitution," she said.
"Even if these restrictions are not in place by the time that this appeal is heard, this would be an important issue for the court to provide an opinion on."
Without a vaccine, it is likely COVID-19 will be around for some time — and so, too, would restrictions, in some form or another, Zwibel said.
"The question of whether provincial governments can put up borders and restrictions to the movement of Canadians" is a new and novel legal issue, she said.
St. John's lawyer Rosellen Sullivan will be representing the civil liberties group as the case is heard in the Newfoundland and Labrador Court of Appeal.
Newfoundland and Labrador Health Minister John Haggie said he is not surprised the CCLA is filing an appeal of the ruling, but the restrictions will stay in place until either a different court ruling is handed down or the province receives different advice from public health officials.
"I think there's a drive from public health to keep some kind of restrictions in place, and at the moment my advice from public health is that we're where we need to be," Haggie said.
"If you look at the evidence from the experts … that was where we felt we needed to go, and I think our results since then have justified the decision, quite frankly."
Haggie said he's been watching the rising number of cases in other parts of Canada, pointing to Ontario, Quebec, B.C. and Alberta in particular.
The travel restrictions are a "key piece" of the province's multi-pronged containment plans, Haggie said, and seem to be doing what they're meant to do — mainly, keeping the number of cases of COVID-19 low.
"For the moment it certainly makes public health jobs a little bit easier. They've got a lot on their plate at the moment and recrafting a travel order is just additional workload they quite frankly don't need at the moment," he said.
"If we are told that that is no longer constitutional and has to be lifted, we will look at what our options are at that stage, but I think it would be premature to speculate on what those might be."
As of Aug. 31, people who live outside the Atlantic region but who own a home in N.L. were allowed to start entering the province, but had to apply for a travel exemption before arrival.
The province's COVID-19 information portal has a specific section on travel restrictions and requirements for rotational workers, as well.
As of Monday, there are 11 active cases of COVID-19 in Newfoundland and Labrador, all of them travel-related. There have been a total of 287 cases in the province, with 272 recoveries and four deaths.
Rosellen Sullivan
Newsflash.
Healthy people don't make others sick.
The Charter is clear and the current practise has overreached.
Yes, but perhaps not in the way you think. The Charter makes it clear that there can be reasonable limits imposed on our rights, including the s.6 mobility rights. This litigation is intended to clarify what those limits are.
There is a situation in Southwestern NS where a certain group of fishers are being targeted by another group of fishers and having their rights and freedoms trampled on, perhaps the CCLA could step in there instead of wasting everyone's time trying to burst the Atlantic bubble?
"Good people on both sides"...Where have I heard that before?
Trying to baby step their way to bursting the Atlantic bubble just proves one thing, they could care less about health and safety, and more about ensuring the virus spread around completely.
Wonder what odds the bookies in Vegas would give on that. Might be better than easy money.
FYI I have always maintained that the philosopher was not motivated to drink the hemlock by the love of of his democratic society. I read somewhere long ago when I took an interest in such things that if Socrates opted to get out of Dodge to escape the death sentence he would have to take his well known to be nasty wedded partner to Troy with him. Hence I figured it was just a way he could make himself appear to be a Greek hero who met an honourable and tragic end but to me he was just attempting to justify finally getting clear of a quarrelsome wife once and for all Other religions agree with my reasoning Proverbs 25:24
Methinks many bookies would agree that many men have taken the coward's way out of this wonderful old world i truly beleive the word is more powerful than the sword and that individual rights are well worth fighting for in either fashion. Sometimes the little guy wins just like the dude whose name was given to me N'esy Pas?
to pursue the gaining of a livelihood in any province." It does not ensure the right to go on vacation in any province or visit family members in any province.
You can read the decision here:
https://www.canlii.org/en/nl/nlsc/doc/2020/2020nlsc125/2020nlsc125.html
To save time, I'd suggest starting at about paragraph 339.
Of course, the Charter says there can be limits on that mobility right in certain circumstances, but the court affirmed that it's not restricted to working or setting up residence.
The court said the provinces cannot set out to impose trade barriers on the flow of goods. But as long as the provinces are regulating goods for a different purpose − as in Nunavut and the Northwest Territories, which control the flow of liquor from elsewhere for public-health reasons − the side-effects on trade must be allowed."
We generally support CCLA's efforts to ensure our legislative, judicial and enforcement bodies adhere to and support our Charter of Rights and Freedoms, but in this particular case we fear CCLA is losing touch, under the circumstances.
We're all in this together.
What a crock. You don't give a rats behind about the difficulties this ban creates for anyone else as long as you are safe and sound. Me and you buddy, we're in nothing together. You are going to find that out the next time Newfoundland is looking for a financial bailout from the rest of Canada.
If they lose, their fine reputation for challenging situations that offend our Charter of Rights and Freedom will be forever marred. And who' is going to pay for this waste of our courts' time?
Much more better if the CCLA focus their powers on the question of whether people refusing to wear masks during major epidemics such as we are currently struggling against are, in fact, violating the rest of our rights to life, freedom and good health?
I must stand corrected ED's words still exist but many of mine still don't
Thank you for standing up for our constitutional rights.
But governments are allowed to take extraordinary measures in extraordinary circumstances. We are in the midst of an extraordinary public health emergency and emergency measures are called for.
This time, you are wrong. Please shut up and sit down.
Your friend,
ED
Wouldn't it be more useful for all of us for the courts to make clear for future reference just what the limits are?
The word the charter uses is "reasonable" when it talks about limitations, something the entire province brushed right over.
Your friend,
Grade 8 Social Studies
Supreme Court upholds interprovincial trade law in cross-border alcohol case
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New Brunswick resident Gérard Comeau buys beer at a store in Listuguj, Que., on April 29, 2016.
Serge Bouchard/The Globe and Mail
Canada has no constitutional guarantee of free trade between provinces, the Supreme Court has ruled in upholding a fine against a New Brunswicker who brought alcoholic beverages from Quebec into his home province.
Gérard Comeau was fined $292 after the RCMP caught him six years ago with 14 cases of beer and three bottles of spirits from Quebec. (Mounties on the Quebec side followed him back to the Restigouche River and radioed ahead to their colleagues on the other side as he crossed a bridge.) The province has a limit of 12 pints of beer or one bottle of liquor purchased outside its borders.
When he successfully fought the fine in New Brunswick Provincial Court, the case became about much more than beer. It had potential consequences for the flow of all manner of goods, from eggs to chicken and soon, to marijuana.
Related: Cross-border alcohol ruling could hit Alberta in pipeline dispute
Opinion: A sigh of regret, and of relief, for the Supreme Court’s cross-border alcohol ruling
Globe editorial: A nation weeps in its expensive beer
But the Supreme Court of Canada ruled unanimously on Thursday that New Brunswick was within its rights to fine Mr. Comeau. The case turned on Section 121 of the 1867 Constitution, which says goods must be “admitted free” as they move from one province to another. The court said the term, although ambiguous, should be interpreted in light of the principle of federalism, which allows regional diversity and local concerns to be reflected within a single nation.
“The federalism principle supports the view that provinces within a federal state should be allowed leeway to manage the passage of goods while legislating to address particular conditions and priorities within their borders.”
The ruling was authored by “The Court” − a signature used in major cases to lend a ruling more weight.
The court said the provinces cannot set out to impose trade barriers on the flow of goods. But as long as the provinces are regulating goods for a different purpose − as in Nunavut and the Northwest Territories, which control the flow of liquor from elsewhere for public-health reasons − the side-effects on trade must be allowed.
Cost of 12 bottle pack of Molson Canadian across Canada
| as of April 19, 2018 | ||||
| B.C. | 2149 | |||
| Alta. | 24.45 | |||
| Sask. | 30.24 | |||
| Man. | 22.99 | |||
| Ont. | 22.95 | |||
| Que. | 21.88 | |||
| N.B. | 25.49 | |||
| PEI | 25.99 | |||
| N.S. | 25.99 | |||
| Nfld. | 26.52 | |||
| Yukon | 26.25 |
The ruling was quickly seized on in the dispute between Alberta and British Columbia over a pipeline expansion, with B.C. saying a proposed Alberta law that would restrict the flow of oil out of the province would be struck down by the Supreme Court as a barrier to the flow of goods.
In Ottawa, the Conservative Party called on Prime Minister Justin Trudeau to do more to reduce interprovincial trade barriers, citing a Senate study that put their cost at more than $50-billion a year. The Prime Minister said in London that the government will look at the decision, but that it has made progress with an internal free-trade agreement last year.
Ian Blue, a lawyer representing Mr. Comeau, said the judges shrank from doing their constitutional duty. “I thought the Supreme Court would have a little more courage than they showed,” he said in an interview. “We consider it a political decision to favour the status quo.” By that, he meant that the court “bought into the broader provincial rights paradigm that we live in nowadays.”
Price index of 12 bottle pack of Molson Canadian across Canada
| Region | Index |
| B.C. | 98.22 |
| Que. | 100.00 |
| Ont. | 104.89 |
| Man. | 105.07 |
| Alta. | 111.75 |
| N.B. | 116.50 |
| PEI | 118.78 |
| N.S. | 118.78 |
| Yukon | 119.97 |
| Nfld. | 121.21 |
| Sask. | 138.21 |
Provincial regulations on the sales of cannabis, once possession is legalized this summer, would be easy to evade if the provinces could not set the rules within their borders, he said. “It would have been a race to the bottom for health, safety and environmental standards.”
A New Brunswick judge who heard expert evidence from a single historian ruled that Canada’s founding fathers intended to allow internal trade to be completely free. But the Supreme Court said the judge substituted an expert’s opinion for nearly a century of appellate court rulings.
Paul Bates, a lawyer who represented the Consumers Council of Canada, which intervened in the case, called the decision a “classic Canadian compromise.”
“We don’t live in a land of constitutional absolutes. We live in a land of compromises and reconciliation.”
He said the decision is good for consumers, who will be able to benefit from the protections of provincial laws, such as those that prohibit hazardous products that may be found in other jurisdictions.
But Alexandre Moreau, a public policy analyst with the Montreal Economic Institute, was disappointed. “It’s a big win for government monopolies, but it’s a guaranteed loss for 37 million Canadians.”
He cited the trucking industry: Provincial regulations on such things as tire size and the number of hours a driver may be at the wheel cause some firms to send their vehicles through the United States on trips between Canadian destinations. Or just to trade with U.S. states.
New Brunswick Provincial Court Justice Ronald LeBlanc had upended a 1921 ruling by the Supreme Court of Canada establishing that while customs duties are not allowed, other trade barriers are. Usually, lower-court judges have to follow Supreme Court precedents. But Justice LeBlanc cited the Supreme Court’s 2013 ruling on prostitution laws, which established that when the facts and circumstances of a case change, lower-court judges can overturn rulings of higher courts.
In the Comeau case, however, the Supreme Court said all that had changed was that an expert had testified with a different view of Canadian history. If lower-court judges were allowed to overturn precedents for that reason, Canadian law would become chaotic, it said.
The Comeau case was the last to be heard by Beverley McLachlin before she retired as chief justice in December. She participated in the ruling.
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