Court challenge of Newfoundland and Labrador's COVID-19 travel ban begins

ST. JOHN'S, N.L. -- A legal challenge of Newfoundland and Labrador's COVID-19 travel ban was before the courts Tuesday, with a supreme court judge asked to consider the intervention of a Canadian civil rights group in the case.

Halifax resident Kim Taylor and the Canadian Civil Liberties Association filed a claim in May, claiming the restrictions violate the charter and fall outside provincial jurisdiction.

The case is scheduled to be heard through Friday.

A special measures order in May from the province's chief medical officer of health banned anyone but permanent residents and asymptomatic workers in key sectors from entering the province.

The province has defended the measure, saying it was necessary to slow the spread and importation of COVID-19 cases. Since it was introduced, the Atlantic provinces have agreed to allow residents who live in the region to travel between provinces.

Taylor was denied the opportunity to travel to Newfoundland after her mother died suddenly.

Justice Donald Burrage was asked Tuesday to consider the scope of the Canadian Civil Liberties Association's standing on the issue of the ban itself and enforcement measures introduced into law.

Lawyer Rosellen Sullivan, representing the association, said the case touches on legal questions affecting all Canadians that have never been subject to a court hearing before, such as a citizen's ability to travel between provinces.

"It affects Newfoundlanders, yes, but it affects choices all Canadians could make," Sullivan said outside the supreme court building in St. John's.

Representing the province, lawyer Justin Mellor argued that the group's mandate is too broad to justify allowing its involvement on litigation on any case involving a charter issue.

The association is also challenging changes to the province's Public Health Protection and Promotion Act which allows police officers to detain and remove individuals to "points of entry" to the province, and authorizes increased search powers.

On Tuesday, lawyers argued about whether the association should have standing to challenge the police powers, as no individual has yet been subjected to them, including Taylor.

"It's not being challenged because it's not being applied," Mellor said, arguing that there is no evidence filed on the issue of police powers.

Sullivan responded the measures should still be challenged even if they have not been enforced, because citizens have to abide by them.

"What we're suggesting is that you shouldn't wait for someone's rights to breached," Sullivan said outside the courtroom. "We would argue that they are unconstitutional on their face."

Burrage said he would render a decision on whether the group has standing on Wednesday.

Taylor has said she was denied her request for an exemption to be allowed to visit her home province following her mother's death, despite including a plan to self-isolate for 14 days upon arrival.

While that decision was ultimately reversed and she was granted an exemption by provincial officials, Taylor said it came too late.

The case is not seeking monetary damages, but a declaration that the measures are unconstitutional, Sullivan said.

Taylor said the court challenge is about other people avoiding the same experience.

Another ongoing case is seeking damages related to the travel ban.

A proposed class-action lawsuit was filed in June on behalf of non-residents who own property in the province, arguing the measure contravenes guaranteed charter mobility rights.

It also argues that the government was negligent when introducing the ban because it ought to have known the law was unconstitutional and would cause damages to people in the suit.

This report by The Canadian Press was first published August 4, 2020.