Charter Challenges of Bill 38

Padmaja Rengamannar | September 22nd, 2020

Since the beginning of the pandemic, a demanding environment has been brewing, one where public health is protected and promoted at all costs. Schools, universities and businesses have shut down, air travel has declined, and courts and parliaments function in ways never done before. The present state of the world and current affairs compel world leaders, governments and international organizations to modify their previous modus operandi, as they have proven to be ineffective and dangerous for the protection of public health, in our current environment.

In the earlier stages of the COVID-19 pandemic in Canada, the Newfoundland and Labrador House of Assembly introduced a bill - Bill 38: An Act to Amend the Public Health Protection and Promotion Act, which posed as a travel ban on Canadian citizens travelling from other provinces into Newfoundland. In early May, the Canadian Civil Liberties Association (CCLA) challenged the bill and advocated for it to be overturned because it violates the fundamental rights and freedoms of the Canadian Charter, and has no substantial justification. (1)

The CCLA’s path to challenging the bill began when a woman named Kim Taylor, who was born and raised in Newfoundland but resided outside the province, was denied entry into the province for 11 days. Taylor was travelling to reunite with her family after her mother’s sudden demise. (2) The CCLA argues that there is no concrete evidence suggesting that the two-week quarantine and self-isolation period is insufficient for protecting and promoting public health and that a travel ban would be required. They also argue that a better safe than sorry approach does not uphold well in the courts. (3)

The bill, as argued by health minister John Haggie, clearly delineates the role of police and law enforcement with regards to promoting and protecting public health. (4) However, the bill is controversial because it provides “sweeping powers”(5) to police officers, such as the power to stop “vehicles and detain people and take them to the border” should they not comply with public health regulations. Furthermore, the ‘sweeping powers’ include the power to “enter certain premises, take photos or video, take samples or conduct tests.”(6)

The Canadian Civil Liberties Association has advocated for the overturning of Bill 38 and has warned that they may even turn to litigation. Their grounds for such action lies in the fact that the bill violates Section 6 of the Canadian Charter of Rights and Freedoms, which ensures the mobility rights of Canadian citizens. (7) The right to movement is a basic human right and its contravention should rightfully be taken seriously and challenged. The pandemic has tested the world’s capabilities, and it has certainly led to nations and their leaders being thoroughly examined for their approach to striking the right balance between the protection of the common good and individuals’ rights that have been “constitutionally entrenched”.

Endnotes

1. CBC News, "Canadian Civil Liberties Association Looking to Challenge Bill 38 Amendment," CBC, last modified May 11, 2020, https://www.cbc.ca/news/canada/newfoundland-labrador/ccnl-challenge-bill-1.5564822.

2. CBC News, "Charter Challenge Filed Against N.L.'s Travel Restriction Bill 38," CBC, last modified May 20, 2020, https://www.cbc.ca/news/canada/newfoundland-labrador/charter-case-bill-38-filed-1.5577349.

3. CBC News, "CCLA Looking to challenge Bill 38."

4. CBC News, "CCLA Looking to challenge Bill 38."

5. CBC News, "Travel Restriction Bill 38."

6. CBC News, "Police in N.L. Now Have Sweeping Powers to Enforce Pandemic Public Health Orders," CBC, last modified May 6, 2020, https://www.cbc.ca/news/canada/newfoundland-labrador/house-of-assembly-reopening-may-5-1.5555541.

7. CBC News, "Sweeping Powers to Enforce Pandemic Public Health Orders."