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Canadian Civil Liberties Association appealing decision upholding N.L. travel ban

Ticket agents wear protective masks during the coronavirus pandemic while helping travelers at LaGuardia Airport, Wednesday, July 15, 2020, in New York.
Ticket agents wear protective masks during the coronavirus pandemic while helping travelers at LaGuardia Airport, Wednesday, July 15, 2020, in New York. (AP Photo/Frank Franklin II)

The Canadian Civil Liberties Association is appealing a Supreme Court of Newfoundland and Labrador decision upholding restrictions banning most travel from other provinces because of the COVID-19 pandemic introduced by the Newfoundland and Labrador government this spring.

Cara Zwibel, director of the CCLA’s fundamental freedoms program, says the appeal was filed Monday after a careful review of the decision showed there were questions about the court’s ruling that though the restrictions violated mobility rights, the violation was justified.

“We think there needs to be a careful look at the evidence on which that decision was based, and also the legal analysis that the court used in making that decision,” Zwibel said in an interview Monday.

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Halifax resident Kim Taylor sued the Newfoundland and Labrador government after she was initially denied an exemption to the province’s travel ban after her mother died in St. John’s in early May.

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Lawyers for Taylor and the Canadian Civil Liberties Association, which was granted intervener status in the case, argued that the province overstepped its authority and violated Taylor’s charter rights. In September, Justice Donald Burrage agreed that Taylor’s right to mobility was infringed, but he found the infringement was a justified response to the pandemic.

Based on the evidence, the CCLA does not believe it was justified, Zwibel said.

When the travel ban was introduced, there was already a rule in place requiring everyone entering the province to quarantine for 14 days, Zwibel said. Public health officials argued the ban was needed because they were concerned people weren’t following the isolation requirements. Zwibel said there wasn’t any evidence to back up this concern, like tickets issued to people found breaking the rules.

“To us, the suggestion is that this concern about people not self-isolating was a concern, but it wasn’t a fact. And we don’t want our courts to make decisions based on governments’ fears about what might happen, we want it to be based on evidence,” she said.

Read more: N.S. warns of potential exposure to COVID-19 on Oct. 15 Toronto-Halifax flight

The CCLA also has questions about some of the modelling presented this summer when the case was in court. The modelling was done after the travel ban decision was made, “largely in response to the litigation,” Zwibel said. The methods behind the modelling were questioned in court, but those discussions did not appear in the judge’s discussion of his ruling, she said.

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Both the original suit and Monday’s appeal are about ensuring governments are making good decisions, especially in a global pandemic, she said.

“Governments are under a lot of pressure to get it right and it’s not always easy or straightforward, and that’s how a democracy like ours works,” she said. “The courts take a look at what governments are doing and say whether they’re acting within the bounds of the law and the bounds of the Constitution.”

This report by The Canadian Press was first published Oct. 19, 2020.