My home province has responded to COVID-19 with a travel ban that might make even Donald Trump think they’ve gone too far:
On April 29, 2020, the Chief Medical Officer of Health issued a Special Measures Order ordering that, effective May 4, 2020, the only individuals permitted to enter the province are those who are:
Residents of Newfoundland and Labrador;
Asymptomatic workers and individuals who are subject to the Updated Exemption Order effective April 22, 2020; and
Individuals who have been permitted entry to the province in extenuating circumstances, as approved in advance by the Chief Medical Officer of Health.
All other individuals are prohibited from entering Newfoundland and Labrador.
Even during a global health emergency, the Charter of Rights and Freedoms still applies. Veteran Newfoundland blogger Edward Hollett, a former special assistant to premier Clyde Wells, raises some serious questions about whether this is constitutional:
In response to a reporter’s question about the constitutionality of the ban, health minister John Haggie replied on Monday that section 13 of the public health protection law says any measures imposed during an emergency should be limited to what is necessary.
That reply did not address the question of whether or not the ban violates the guarantee under the Charter of Rights and Freedoms. Nor did the minister provide an explanation of why a ban on entry to all non-residents, except for specific exempt individuals who are also free from other restrictions, was necessary.
Section 6 (2) of the Charter provides that every Canadian has the right to “move to and take up residence in” another part of Canada. On the face of it, this section would not confer on Canadians the right to travel but to travel related to residence. The people covered by this section of the Charter and potentially abused by the travel ban would be any people who own property and who lie in the province periodically.
Haggie also said other provinces had adopted similar travel bans.
They have not.
Potential issues with the Newfoundland and Labrador ban:
Potential constitutional violation. (Section 6(2))
Absence of explanation or justification (potential violation of Public Health Promotion and Protection Act)
Unparalleled scope and type of travel restriction (complete ban on non-residents).
No description of potential reasons for exemption that could be granted by Chief Medical Officer. (Lack of transparency and clarity)
No provision for travel related to child-custody or similar orders.
No allowance for emergencies.
Of these, the first two are the most serious. The order may be unconstitutional. Someone should challenge it in court.
More likely, the ban is excessive and unnecessary. This has both political and legal dimensions. Politically, the government owes a duty of transparency to the public to explain why it is taking a measure as draconian as banning all travel to the province by non-residents.
As much as it pains me not to be able to get home this summer, I’m not going as far as Hollett and agreeing that this policy is unnecessary. To paraphrase an old Amercan saying, the Charter is not a suicide pact. But I would like to see the courts weigh in on this, and I don’t think people should just accept it uncritically.
On a related note, the Royal St. John’s Regatta has been cancelled for the first time since the Second World War. Sadly, this year, people in St. John’s won’t know the joy (or agony) of Regatta Roulette.