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There is a case being heard in the Supreme Court of Newfoundland that Prince Edward Islanders should pay attention to, particularly those Islanders who are concerned about allowing people "from away" to visit during these times of the COVID-19 crisis.
The case was brought to the court by a Nova Scotia woman who was denied entry to Newfoundland to attend the funeral of her mother. Kim Taylor was born and brought up in Newfoundland, but is now a resident of Halifax. She claims the province had no right to ban her from Newfoundland.
Newfoundland has emergency measures in place similar to the ones in Prince Edward Island and the other Maritime provinces that prevent people from coming to their province unless they can demonstrate that the visit is essential or meets other requirements that will permit entry.
Initially Newfoundland told Kim Taylor her mother’s funeral didn’t qualify as an essential reason to visit. Eventually she was allowed the visit, but by then it was too late. Ms. Taylor decided to sue. She is joined in her arguments by the Canadian Civil Liberties Association.
Lawyers for Ms. Taylor and the CCLA argue the restrictions are without merit or basis in law, and that the travel ban violates Section 6 of the Canadian Charter of Rights and Freedoms, which allows Canadians to move freely within the country.
Section 6 of the charter deals with mobility rights and Section 6 (2) is the most relevant with regards to travel bans imposed by both P.E.I. and Newfoundland.
It says: “Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right; a) to move to and take up residence in any province; and b) to pursue the gaining of a livelihood in any province.”
Which all seems pretty cut and dried, Canadians can go wherever they want, whenever they want. But, the Newfoundland government says, no, it’s not that cut and dried.
Newfoundland’s argument before the court is that mobility rights granted by Section 6(2) is an economic right, not a constitutional right to tourism or to visit family.
To back up this argument Newfoundland’s lawyers cited a 1989 case before the Supreme Court of Canada where Mr. Justice La Forest wrote, “economic concerns undoubtedly played a part in the constitutional entrenchment of interprovincial mobility rights, under s6(2) of the Charter.”
Newfoundland also said that if the intent of Section 6(2) was for noneconomic, temporary travel, the charter would have to include words such as “travel to” or “visit.”
Newfoundland’s lawyers also cite a 1951 case before the Supreme Court of Canada where Justice Rand wrote, “a province cannot prevent a Canadian from entering it except, conceivably, in temporary circumstances, for some local reason as, for example, health.”
It is generally believed that the COVID-19 pandemic is a health concern and that the bans are temporary measures.
On Thursday, the court in St. John’s also heard testimony from Dr. Proton Rahman, an epidemiologist and professor of medicine at Memorial University who said that without the travel ban the COVID-19 infection rate in Newfoundland would be 20 times higher than it is.
As of the deadline for this column, the lawyers for Kim Taylor and the Canadian Civil Liberties had not been heard. Their arguments may well convince the judge that the ban is unconstitutional and illegal.
It’s a decision that will have an immediate impact for Atlantic Canada, and the other provinces. If the court rules against the ban then it will be a further constriction on the provinces’ right to govern their citizens. If that were to happen then the provinces would have to turn to the federal government to impose restrictions if they felt they were necessary.
To see how well that works one only has to look to the USA, which now has five million cases of COVID-19. Millions more than any other country in the world.
Alan Holman is a freelance journalist living in Charlottetown.