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Newfoundland and Labrador’s COVID-19 border laws, police powers face Charter challenge

Thursday, May 28, 2020 @ 10:50 AM | By Terry Davidson

Canada’s defender of civil liberties is concerned that new powers given to police in Newfoundland and Labrador to stop, detain and remove from the province those who breach public orders in place to combat COVID-19 could be “resuscitated” in the post-pandemic future, whenever emergency measures are enacted.

The Canadian Civil Liberties Association (CCLA) points to Bill-38, new legislation that amends Newfoundland and Labrador’s Public Protection and Promotion Act and gives police extended powers during the province’s current public health emergency. 

These concerns are laid out in the CCLA’s recent application in the Supreme Court of Newfoundland and Labrador to legally challenge both the expansion of these powers and Newfoundland and Labrador’s recent ban on all non-essential travel into the province.

The CCLA maintains the travel ban and the new enforcement powers violate Canada’s Charter.  

The CCLA’s application was filed jointly with Kim Taylor, a woman who was born and raised in Newfoundland but now lives outside the province and initially denied entry when she attempted to visit after the sudden death of her mother — despite Taylor having a plan to self-isolate for 14 days once there, according to a CCLA news release.

(Newfoundland and Labrador’s tightening of its border comes after tourists were reportedly entering the province from other places despite the province asking people to travel for essential reasons only.)

The CCLA and Taylor are asking the court to suspend the travel ban until the matter is settled in court.

Passed May 5, Bill-38 allows police to locate and detain “an individual who is in contravention of the measure,” and “convey an individual who is contravention of the measure to a specified location, including a point of entry to the province.”

The new powers reportedly enable officers to stop vehicles, detain people and drop them at Newfoundland and Labrador’s border if it is found they were not obeying current public health orders.

While initial reports stated police would also be able to enter any premises, it was later reported that they would require a warrant to do this.

(Bill-38 also allows expands the abilities of inspectors to enter premises, investigate relevant records and conduct tests.)

Premier Dwight Ball has reportedly said the new police powers will only be in effect during the public health emergency, but a government spokesperson declined to confirm this.

Cara Zwibel, director of the CCLA’s fundamental freedoms program

The CCLA’s Cara Zwibel says the way in which the changes were made means the expansion of police powers could be at-the-ready for future use.  

“The changes were made to the Public Health Protection and Promotion Act,” said Zwibel, director of the CCLA’s fundamental freedoms program. “They apply when certain measures or orders are in effect, so while they may not be [enforced] when there are no longer emergency orders in force, they can be ‘resuscitated’ the next time emergency measures or orders are in place.”

In her view, these are “permanent changes” that were made.  

“They are not executive orders or orders of the public health officer or anything like that; they are permanent changes to the legislation that were rushed through the legislative assembly, and they say that police can detain and remove people to points of entry from the province if they believe they are violating a public health order, not even the travel ban. Based on the wording, police now have the power to remove Newfoundland residents from the province. So, it’s pretty extraordinary what’s been done there.”

Zwibel also wonders why the border was tightened and police powers strengthened this late in the pandemic.

“The circumstances in Newfoundland were that they had a rule that people coming in from out of province had to self-isolate for a period of 14 days, and they decided for some reason at the beginning of May that that wasn’t sufficient and that they needed to ban non-essential travel, and it came at a time when their curve was flattened, the incidents of the disease and of recent infection were low. So, it does raise the question in a clear way whether governments do have to try and approach restrictions … in a way that is minimally intrusive or if they have a much broader scope to take restrictive steps to protect public health.”

 The government was asked for comment.

“On April 29, 2020, the Chief Medical Officer of Health for Newfoundland and Labrador issued a Special Measures Order (amendment No. 11) that prohibited non-residents from entering the province (with limited exceptions). Bill-38, passed with unanimous support in the House of Assembly on May 5, 2020, amended the Public Health Protection and Promotion Act to give police the ability to detain, direct and escort individuals from place to place,” a spokesperson said in an e-mail. “We can confirm that an Application to the Court has been made by the [CCLA] and is being reviewed by the Department of Justice and Public Safety. As the matter is currently before the court, it would be inappropriate to comment any further.”

They declined to answer any further questions, citing the ongoing proceedings. 

A request for comment from Kim Taylor’s lawyer was not returned by press time.

As of May 25, there were 260 cases of COVID-19 in the province, which has experienced a total of three deaths from the virus.

The CCLA is also questioning Prince Edward Island’s decision to implement similar border restrictions.  

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