IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR
GENERAL DIVISION
Citation: Taylor v. Newfoundland and Labrador, 2020 NLSC 125
Date: September 17, 2020
Docket: 202001G2342
BETWEEN:
KIMBERLEY TAYLOR
FIRST APPLICANT
AND:
CANADIAN CIVIL LIBERTIES
ASSOCIATION
SECOND APPLICANT
AND:
HER MAJESTY IN RIGHT OF
NEWFOUNDLAND AND LABRADOR
FIRST RESPONDENT
AND:
JANICE FITZGERALD
SECOND RESPONDENT

Before: Justice Donald H. Burrage

Place of Hearing:

St. John’s, Newfoundland and Labrador

Dates of Hearing:

August 4, 5, 6, 7, 11 and 12, 2020

 Page 2
Summary:
On 4-5 May 2020, in an effort to curtail the spread of COVID-19, the Chief
Medical Officer of Health (CMOH) for Newfoundland and Labrador issued
two orders pursuant to s. 28(1)(h) of the Public Health Protection and
Promotion Act (the “PHPPA”) restricting those permitted to enter the
province. On 8 May 2020, the CMOH denied Kimberley Taylor entry from
Nova Scotia to attend her mother’s funeral.
Ms. Taylor challenges s. 28(1)(h) of the PHPPA as outside the legislative
authority of the province, and the decision to refuse her entry pursuant to the
travel restriction as contrary to her ss.6 and 7 Charter rights to mobility and
liberty, respectively.
The CCLA seeks to join with Ms. Taylor in her challenge and, in addition, to
bring its own challenge to ss. 28.1 and 50(1) (the enforcement and
investigative provisions) of the PHPPA.
Held: The CCLA is granted public interest standing in support of Ms. Taylor.
It is denied public interest standing to bring its own challenge to ss. 28.1 and
50(1) of the PHPPA, as the challenge is non-justiciable on the record before
the Court.
Section 28(1)(h) of the PHPPA is a valid law, as falling within the legislative
competence of the province over matters of public health, under s. 92(16)
(matters of a local and private nature) or, alternatively s. 92(13) (property and
civil rights) of the Constitution Act, 1867.
Ms. Taylor’s s. 6(1) Charter right to mobility was infringed, albeit fleetingly,
when she was denied entry into the province. Ms. Taylor’s s. 7 right to liberty
was not engaged.
The infringement of Ms. Taylor’s right to mobility was demonstrably justified
under s. 1 of the Charter in response to the COVID-19 pandemic.
In the result, the application is dismissed.
In light of the importance of the issues raised, each party is ordered to bear
their own costs.

 Page 3
Appearances:
John F.E. Drover

Appearing on behalf of the First Applicant

Rosellen Sullivan

Appearing on behalf of the Second Applicant

Justin S. C. Mellor
Donald E. Anthony, Q.C.
Mark P. Sheppard

Appearing on behalf of the Respondents

Authorities Cited:
CASES CONSIDERED: Downtown Eastside Sex Workers United Against
Violence Society v. Canada (Attorney General), 2012 SCC 45; Canadian
Council of Churches v. R., (1992) 1 S.C.R. 236; Shiell v. Amok (1987), 27
Admin. L.R.1, 1987 CarswellSask 56 (Q.B.); Danson v. Ontario (Attorney
General), [1990] 2 S.C.R. 1086; MacKay v. Manitoba, [1989] 2 S.C.R. 357;
Bedford v. Canada (Attorney General), 2013 SCC 72; Canadian Civil
Liberties Association v. Canada (Attorney General), 2019 ONCA 243; R. v.
Nur, 2015 SCC 15; Metropolitan Stores (MTS) Ltd. v. Manitoba Food &
Commercial Workers, Local 832, [1987] 1 S.C.R. 110; R. v. Edwards, [1996]
1 S.C.R. 128; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Marakah, 2017 SCC
59; R. v. Mann, 2004 SCC 52; R. v. Grant, 2009 SCC 32; Canadian Civil
Liberties Assn. v. Canada (Attorney General), 1998 CarswellOnt 2808, 111
O.A.C. 51; Hy & Zel's Inc. v. Ontario (Attorney General), [1993] 3 S.C.R.
675; R. v. Blais, 2008 BCCA 389; Reference re Firearms Act (Canada), 2000
SCC 31; Ward v. Canada (Attorney General), 2002 SCC 17; Kitkatla Band v.
British Columbia (Minister of Small Business, Tourism & Culture), 2002 SCC
31; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14;
Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009
SCC 53; Canadian Western Bank v. Alberta, 2007 SCC 22; R. v. Comeau,
2018 SCC 15; Ontario (Attorney General) v. Winner, 1954 CarswellNB 40,
[1954] 2 W.L.R. 418 (P.C.); Union Colliery Co. of British Columbia v.
Bryden, 1899 CarswellBC13, [1899] A.C. 580 (P.C.); Schneider v. British
Columbia, [1982] 2 S.C.R. 112; Fawcett v. Attorney General of Canada,
[1964] S.C.R. 625; Reference Re Intoxicated Persons Detention Act, 1980
CarswellMan 144, [1981] 1 W.W.R. 333(C.A.); Rinfret v. Pope, (1886) 10
L.N. 74, 12 Q.L.R. 303 (Que. C.A.); Labatt Breweries v. Canada (Attorney
General), [1980] 1 S.C.R. 914; Reference re Canada Temperance Act, [1946]

 Page 4
A.C. 193, 1946 CarswellOnt 100 (P.C.); Toronto Elec. Commrs. v. Snider,
[1925] 1 W.W.R. 785, 1925 CarswellOnt 80 (P.C.); Skapinker v. Law Society
of Upper Canada, [1984] 1 S.C.R. 357; Ontario (Attorney General) v. Winner,
[1951] S.C.R. 887; Black v. Law Society (Alberta), [1989] 1 S.C.R. 591;
Malartic Hygrade Gold Mines Quebec Ltd. c. Quebec, [1982] C.S. 1146, 1982
CarswellQue 298 (Sup. Ct.); Murphy v. Canadian Pacific Railway Co., [1958]
S.C.R. 626; Manitoba (Attorney General) v. Manitoba Egg & Poultry Assn.,
[1971] S.C.R. 689; Toomer v. Witsell, 334 U.S. 385 (1948); Shapro,
Commissioner of Welfare of Connecticut v. Thompson, 394 U.S. 618 (1969);
United States of America v. Cotroni, [1989] 1 S.C.R. 1469; United States of
America v. Sriskandarajah, 2012 SCC 70; Canadian Egg Marketing Agency
v. Richardson, [1998] 3 S.C.R. 157; Divito v. Canada (Minister of Public
Safety and Emergency Preparedness), 2013 SCC 47; R. v. Big M Drug Mart
Ltd., [1985] 1 S.C.R. 295; Singh v. Canada (Minister of Employment and
Immigration), [1985] 1 S.C.R. 177; R. v. Lloyd, 2016 SCC 13; Blencoe v.
British Columbia (Human Rights Commission), 2000 SCC 44; Carter v.
Canada (Attorney General), 2015 SCC 5; R. v. Malmo-Levine, 2003 SCC 74;
R. v. Videoflicks Ltd., [1986] 2 S.C.R. 713; B. (R.) v. Children's Aid Society of
Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Morgentaler, [1988] 1
S.C.R. 30; R. v. Smith, 2015 SCC 34; Godbout v. Longueuil (Ville), [1997] 3
S.C.R. 844; Alberta (Aboriginal Affairs and Northern Development) v.
Cunningham, 2011 SCC 37; R. v. Oakes, [1986] 1 S.C.R. 103; Thompson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v.
Bryan, 2007 SCC 12; Harper v. Canada (Attorney General), 2004 SCC 33;
M. v. H., [1999] 2 S.C.R. 3; P.S.A.C. v. Canada, [1987] 1 S.C.R. 424;
Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37; Newfoundland
(Treasury Board) v. N.A.P.E, 2004 SCC 66; South Bay United Pentecostal
Church et al v. Gavin Newsom, Governor of California, et al., No. 19A1044
(USSC); Henning Jacobson, Plff. In Err. V. Commonwealth of Massachusetts,
197 U.S. 11(1905)
STATUTES CONSIDERED: Public Health Protection and Promotion Act,
S.N.L. 2018, c. P-37.3; Canadian Charter of Rights and Freedoms (the
Charter), Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11; Environmental Assessment Act, S.S. 1979-80, c.
E-10.1; Elections Finances Act, S.M. 1982-83-84, c. 45; Criminal Code,
R.S.C. 1985, c. C-46; Corrections and Conditional Release Act, S.C. 1992, c.
20; Immigration Act 1976, S.C. 1976-77, c.52, as am. by S.C. 1988, c. 35;
Canadian Security Intelligence Services Act, R.S.C. 1985, c. C-23;

 Page 5
Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.); New Brunswick Liquor
Control Act, R.S.W.B. 1973, c. L-10; Mental Hospitals Act, R.S.O. 1960, c.
236; Heroin Treatment Act, R.S.B.C. 1979, c. 166; Quarantine Act, S.C. 2004,
c. 20; Law Society Act, R.S.O. 1980, c. 233; Extradition Act, R.S.C. 1970, c.
E-21; Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12;
Canada Elections Act, S.C. 2000, c. 9
OTHER: Commission of Inquiry on the Blood System in Canada: Final
Report. (Ottawa: Canadian Government Publishing 1997); Extradition Treaty
between Canada and the United States, CTS 1976; International Covenant on
Civil and Political Rights, Can. T.S. 1976 No. 47

PREFACE
This case engages the novel question of the Province of Newfoundland and
Labrador’s ability to restrict domestic travel across its border in response to
the COVID-19 pandemic.
REASONS FOR JUDGMENT
BURRAGE, J.:

INTRODUCTION

[1] It is difficult to overstate the global impact of the SARS-CoV-2 virus, known
more commonly by the infectious and potentially fatal disease it causes, COVID-19.
Since first identified in Wuhan, China1, it has claimed the lives of close to one
million people worldwide, almost ten thousand in Canada alone, hospitalized many

1

Affidavit of Dr. Janice Fitzgerald, 9 July 2002, at para. 17. On 31 December 2019 the World Health Organization
(WHO) was alerted to cases of pneumonia in Wuhan, China. On 7 January 2020 China confirmed that a new
coronavirus was the cause.

 Page 6
times that number, and left entire economies shaken.2 To date, there is no known
cure, no effective treatment and no vaccine. The impact of COVID-19 continues to
be felt on international, national and regional levels, as governments implement
public health measures in an effort to control the spread of the virus.

[2] In 2018, long before the world heard of COVID-19, the legislature of this
province was busy enacting the Public Health Protection and Promotion Act3 (the
“PHPPA”). This legislation would prove to be timely, for as the Minister of Health
and Community Services stated during its introduction in the legislature:
We are living in a world with SARS and Ebola. You are one plane flight away
from a significant public health problem, and we need legislation that can adapt and
deal with that.4

[3] During times of a public health emergency s. 28(1)(h) of the PHPPA
authorizes the Chief Medical Officer of Health (the “CMOH”) to restrict travel to
the province. In responding to the COVID-19 pandemic, the CMOH did just that.

[4] On 29 April 2020 the CMOH issued Special Measures Order (Amendment
No. 11), to take effect on 4 May 2020, limiting entry to residents of Newfoundland
and Labrador, asymptomatic workers and those in extenuating circumstances. On 5
May 2020 the CMOH issued Special Measures Order (Travel Exemption Order),
expanding those circumstances when entry into the province would be permitted.
As neither Order served as an outright ban on all travel, I will henceforth collectively
refer to these two special measures as the “travel restriction”.

2

Fitzgerald Affidavit, at para. 45. As of 4 July 2020, 8,684 deaths were recorded in Canada and 528,204 worldwide.
The numbers continue to grow. At the time of writing the deaths worldwide have exceeded 930,000 and in Canada
have exceeded 9,000.
3

S.N.L. 2018, c. P-37.3.

House of Assembly Proceedings, November 20, 2018, Vol. XLVIII No. 44, p. 2616, Second Applicant’s Brief,
Volume 1, Tab 1.
4

 Page 7
[5] On 5 May 2020 Kimberley Taylor’s mother passed away suddenly at her
home in Kilbride, St. John’s, NL. Ms. Taylor, who was born in this province, but
now lives in Halifax, Nova Scotia, sought an exemption from the travel restriction
in order to attend her mother’s funeral. On 8 May 2020 Ms. Taylor’s request was
denied.

[6] Ms. Taylor now challenges s. 28(1)(h) of the PHPPA as beyond the legislative
authority of the province. In the alternative, Ms. Taylor argues that the travel
restriction violated her right to mobility and right to liberty as guaranteed by ss. 6
and 7 of the Charter5, respectively.

[7] On 5 August 2020, following a hearing, the Canadian Civil Liberties
Association (“CCLA”) was granted standing as a public interest litigant in support
of Ms. Taylor. On that same date it was denied public interest standing to challenge
two provisions of the PHPPA, namely ss. 28.1 and 50(1), relating to enforcement
and investigation, as contrary to ss. 7, 8 and/or 9 of the Charter.6 These provisions
are not challenged by Ms. Taylor.

[8] While recognizing that Charter rights are not absolute, both the CCLA and
Ms. Taylor argue that the violation of her right to mobility and/or liberty cannot be
justified on the facts of this case.7 They seek a Declaration that s. 28(1)(h) of the
PHPPA and the travel restriction are of no force and effect.

[9] At this point I would pause to observe that this is not an administrative law
case. The Applicants do not seek review of the decision of the CMOH based upon
procedural fairness, natural justice or reasonableness, for example. Nor do the
5

Canadian Charter of Rights and Freedoms (the Charter), Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.), 1982, c. 11.
6

The reasons for the grant and denial of public interest standing are set forth herein.

Section 1 of the Charter states that “The Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society.”
7

 Page 8
Applicants challenge the power vested in the CMOH as an improper delegation of
authority. The manner in which the CMOH made the decision regarding Ms. Taylor
is not in play. The Applicants have bigger fish to fry.
THE QUESTIONS

[10] The questions to be addressed by the Court are, as follows:

1)

Should the CCLA be granted public interest standing?

2)

Is s. 28(1)(h) of the PHPPA within the legislative competence of the
province?

3)

Did the travel restriction violate Ms. Taylor’s right to mobility as
guaranteed by s. 6 of the Charter?

4)

Did the travel restriction violate Ms. Taylor’s right to liberty as
guaranteed by s. 7 of the Charter?

5)

If Ms. Taylor’s Charter rights were infringed, is the infringement
justified under s.1 of the Charter, in response to the COVID-19
pandemic?

6)

If s. 28(1)(h) of the PHPPA is beyond the legislative competence of the
province, or there is a violation of Ms. Taylor’s Charter rights that
cannot be justified by s. 1, should any declaration of invalidity be
temporarily suspended?

 Page 9
THE LEGISLATION

[11] The title of our legislation, “Public Health Protection and Promotion”, lends
a clue to what lies within. Section 5 of the PHPPA identifies its purpose:
5. The purpose of this Act is to
(a)

promote the health and well-being of individuals and communities;

(b)

protect individuals and communities from risks to the health of the
population;

(c)

prevent disease, injury and disability;

(d)

provide a healthy environment for individuals and communities;

(e)

provide measures for the early detection and management of risks
to the health of the population, including monitoring of a disease or
health condition of significance;

(f)

improve the health of the population and of vulnerable groups; and

(g)

promote health equity within the population by addressing the social
determinants of health.

[12] The CMOH is appointed by the Minister of Health and Community Services
(the “Minister”) pursuant to s. 9 of the PHPPA. Section 9(1) provides that the
CMOH must be a medical practitioner and a Fellow of the Royal College of
Physicians and Surgeons of Canada in Public Health and Preventative Medicine, or
have equivalent experience and training.8

8

Section 9(1)(c) also provides that the CMOH have the qualifications prescribed in the Regulations. To date there
are no Regulations.

 Page 10
[13] Section 9(2) of the PHPPA provides that the CMOH shall “exercise his or her
powers and perform his or her duties independently and impartially in order to best
protect and promote the health of the people in the province.”

[14] To this end, s. 9(3) provides that the CMOH shall:
(a)

monitor the health of the people in the province, including the
impact of zoonotic disease on human health;

(b)

establish measures to identify, investigate and
communicable diseases and outbreaks in the province;

(c)

monitor the implementation of core public health programs and
services prescribed in the regulations;

(d)

monitor regional medical officers of health in the exercise of their
powers and duties under this Act and the regulations;

(e)

be responsible for those aspects of the province's emergency
planning, preparedness, response and recovery that relate to health;

(f)

increase public awareness of health issues and changing health
needs;

(g)

provide advice to the minister on public health and health issues;

(h)

develop, in consultation with the regional health authorities,
standards related to core public health programs and services as
prescribed in the regulations;

(i)

implement the provincial public health plan developed under
subsection 7(1);

(j)

prepare and publish an annual report within 6 months of the end of
each year respecting the reportable events, outbreaks, public health
emergencies and number and results of inspections conducted under
this Act and the regulations during that year; and

(k)

prepare a report to the Lieutenant-Governor in Council every 5 years
regarding the health status of people in the province.

manage

 Page 11
[15] Finally, s. 9(4) provides that the CMOH may:
(a)

exercise the powers and perform the duties of a regional medical
officer of health as set out in this Act and the regulations;

(b)

issue directions to regional medical officers of health regarding the
exercise of their powers and duties under this Act and the
regulations;

(c)

make recommendations and engage in planning in respect of public
health; and

(d)

approve or issue standards and guidelines for controlling a
communicable disease.

[16] The PHPPA is divided into nine Parts. Part VI is entitled “Public Health
Emergencies”. Such emergencies are defined in s. 2(y):
2. (y) "public health emergency" means an occurrence or imminent threat of one
of the following that presents a serious risk to the health of the population
(i) a communicable disease,
(ii) a health condition,
(iii) a novel or highly infectious agent or biological substance, or
(iv) the presence of a chemical agent or radioactive material;

[17] Section 27(1) of the PHPPA gives the Minister the power, on the advice of
the CMOH, to declare a public health emergency in all or a part of the province,
where one exists, and such emergency cannot be “sufficiently mitigated or remedied
without the implementation of the special measures available under s. 28.”

[18] Pursuant to s. 27(2) a declaration of a public health emergency expires no
more than 14 days after it is made. However, the Minister may, on the advice of the
CMOH, extend the public health emergency for consecutive periods of 14 days,

 Page 12
where the public health emergency continues to exist and the extension is required
to protect the health of the population.

[19] In the event of a public health emergency, the declaration must identify the
nature of the emergency, specify the area of the province to which it relates and
specify the dates when the declaration takes effect and when it expires (PHPPA, s.
27(4)).

[20] While a declaration of a public health emergency exists, s. 28 of the PHPPA
gives the CMOH the power to implement a number of special measures, “for the
purpose of protecting the health of the population and preventing, remedying or
mitigating the effects of the public health emergency.”

[21] Section 28(1) reads:
28.(1) While a declaration of a public health emergency is in effect, the Chief
Medical Officer of Health may do one or more of the following for the
purpose of protecting the health of the population and preventing,
remedying or mitigating the effects of the public health emergency:
(a)

authorize qualified persons to give aid of a specified type;

(b)

provide directions to environmental health officers and public health
personnel in the province;

(c)

establish a voluntary immunization program in the province;

(d)

establish a list of individuals or classes of individuals who shall be
given priority for immunizing agents, drugs, medical supplies or
equipment;

(e)

enter into an agreement for services with an agency of the
Government of Canada or another province and provide directions
regarding the deployment of those services when operating in the
province;

(f)

procure and provide for the distribution of medical supplies, aid and
equipment in the province;

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(g)

acquire or use real or personal property, whether private or public,
other than a dwelling house;

(h)

make orders restricting travel to or from the province or an area
within the province; [emphasis added]

(i)

order the closure of any educational setting or place of assembly;

(j)

enter or authorize any person acting under the direction of the Chief
Medical Officer of Health to enter any premises without a warrant;
and

(k)

take any other measure the Chief Medical Officer of Health
reasonably believes is necessary for the protection of the health of
the population during the public health emergency.

[22] In the within action the impugned provision is s. 28(1)(h), which authorizes
the CMOH to “make orders restricting travel to or from the province or an area
within the province.”

[23] Section 13 of the PHPPA is cautionary. It reads:
13.

Where an individual's rights or freedoms are restricted as a result of the
exercise of a power or the performance of a duty under this Act, the
regulations or an order made under this Act or the regulations, the restriction
shall be no greater than is reasonably required in the circumstances to
respond to a communicable disease, health hazard, public health emergency
or contravention of this Act, the regulations or an order made under this Act
or the regulations.

[24] The next two sections of the PHPPA are included here for the sake of
completeness. They are not considered in this decision other than in the context of
the CCLA’s request for standing.

 Page 14
[25] Section 28.1 of the PHPPA reads:
28.1 (1)

While a measure taken by the Chief Medical Officer of Health under
subsection 28(1) is in effect, the Minister of Justice and Public
Safety may, upon the request of and following consultation with the
minister, authorize a peace officer to do one or more of the
following:

(a)

locate an individual who is in contravention of the measure;

(b)

detain an individual who is in contravention of the measure;

(c)

convey an individual who is in contravention of the measure to a
specified location, including a point of entry to the province; and

(d)

provide the necessary assistance to ensure compliance with the
measure.

(2)

A peace officer who detains or conveys an individual under
subsection (1) shall promptly inform the individual of

(a)

the reasons for the detention or conveyance;

(b)

the individual’s right to retain and instruct counsel without delay;
and

(c)

the location to which the individual is being taken.

Section 28.1 is new. It was added to the PHPPA on 5 May 2020, primarily to
give force to the special measures under s. 28(1)(h).
[26]

[27] Section 50(1) of the PHPPA reads:
50.(1) An inspector may, at all reasonable times and without a warrant, for the
purpose of administering or determining compliance with this Act or the
regulations, a code of practice or a measure taken or an order made under
this Act or the regulations or to investigate a communicable disease or
health hazard, do one or more of the following:

 Page 15
(a)

inspect or examine premises, processes, books and records the
inspector may consider relevant;

(b)

enter any premises;

(c)

take samples, conduct tests and make copies, extracts, photographs
or videos the inspector considers necessary; or

(d)

require a person to
(i)

give the inspector all reasonable assistance, including the
production of books and records as requested by the
inspector and to answer all questions relating to the
administration or enforcement of this Act or the regulations,
a code of practice or a measure taken or an order made under
this Act or the regulations and, for that purpose, require a
person to stop a motor vehicle or attend at a premises with
the inspector, and

(ii)

make available the means to generate and manipulate books
and records that are in machine readable or electronic form
and any other means or information necessary for the
inspector to assess the books and records.
[emphasis added]

[28] Section 50(1) is not new, but the word “measure” was added on 5 May 2020
making it clear that the powers of inspectors could operate to determine compliance
with special measures.

THE PUBLIC HEALTH EMERGENCY

[29] At the end of 2019 the World Health Organization (WHO) was alerted to
several cases of pneumonia in Wuhan, China, caused by an unknown virus. On 7

 Page 16
January 2020 China advised the world that a new coronavirus was the cause, later
labelled SARS-CoV-2. It causes the disease known as COVID-19.9

[30] In mid-January 2020 the Public Health Agency of Canada activated the
Emergency Operation Centre in support of Canada’s response to COVID-19. On 22
January 2020 Canada implemented COVID-19 screening requirements for travelers
returning from China.10

[31] On 25 January 2020 Canada confirmed its first case of COVID-19 related to
travel from Wuhan, China. On 9 March 2020 Canada recorded its first death related
to COVID-19.11

[32] On 11 March 2020 the WHO declared the global outbreak of COVID-19 to
be a pandemic.12

[33] Three days later Newfoundland and Labrador recorded its first presumptive
positive case of COVID-19.13

[34] In response to the COVID-19 pandemic, on 18 March 2020, the Minister, on
the advice of the CMOH, declared a public health emergency for all of
Newfoundland and Labrador, pursuant to s. 27 of the PHPPA. Since that date the
Minister has extended the public health emergency declaration, such that at the time
of writing it remains in effect. Quite rightly, the status of the COVID-19 pandemic

9

Fitzgerald Affidavit, at para. 17.

10

Ibid, at para.18.

11

Ibid, at para. 19.

12

Ibid, at para. 20.

13

Ibid, at para. 21.

 Page 17
as a public health emergency within the meaning of the PHPPA is not challenged by
the Applicants.

[35] Pursuant to s. 28 of the PHPPA, commencing on 18 March 2020 the CMOH
issued a number of special measures for the purpose of protecting the health of those
in Newfoundland and Labrador and preventing, remedying or mitigating the effects
of the COVID-19 pandemic. Up to the date of Ms. Taylor’s request to travel these
included, but are not limited to the following:14

 On 18 March 2020 the CMOH ordered certain businesses in the province to
close; fitness facilities, dance studios, cinemas, performance spaces, arenas,
bingo halls, liquor stores and restaurants for in person dining (unless the
restaurant could operate at 50% capacity and maintain social distancing).
Gatherings of more than 50 people were prohibited and those returning from
outside Canada (including the U.S.) were required to self-isolate for 14 days.

 On 23 March 2020 the list of business closures was expanded to include
personal service establishments, all retail stores other than those providing
services essential to the life, health or personal safety of individuals and
animals, and all in person eating in restaurants. Gatherings were reduced to
no more than 10 people and visitation to personal care homes prohibited
except in exceptional circumstances.

 The following day all private health care clinics were ordered to close, with
the exception of physician and nurse practitioner clinics, and urgent and
emergent services. Virtual care was encouraged.

 The sale of scratch and break open lottery tickets was prohibited on 30 March
2020. Gatherings were restricted to five people and those required to self-

14

Ibid, at Tab 16. The special measures orders referenced may all be found at this Tab.

 Page 18
isolate were ordered to remain on their property and not go for a drive unless
to seek medical attention.

 The following day all campsites in municipal and privately owned parks that
were not already closed were ordered to do so. Some weeks later, on 17 April
2020, an exemption was made for those individuals who are a permanent
resident of a campsite, with no other residence.

 On 20 March 2020 the requirement to self-isolate was expanded to include all
individuals arriving from other provinces and territories. An exception was
made for certain asymptomatic workers in the air transportation sector.

 The following day, 21 March 2020, the exemption for asymptomatic workers
was expanded for those deemed essential to the movement of goods and
people, while travelling to and from their home and place of work in the
province. When not working and while in the province these workers were
required to self-isolate. Such workers included those essential to the critical
maintenance of the province’s infrastructure in the trade, transportation,
fishing, mining and oil and gas sectors.

 The exemption from self-isolation was expanded on 25 March 2020 to include
asymptomatic workers essential to critical health care in the province,
including air ambulance, and organ donor retrieval teams, while travelling to
and from their home and place of work.

 Almost a month later, on 22 April 2020, a further exception was made, due to
the level of social and economic integration between towns and communities
on the Newfoundland and Labrador-Quebec border. Asymptomatic
individuals crossing the border for work or health reasons were exempt from
the requirement to self-isolate.

 Page 19
 As of 24 April 2020 all individuals arriving from outside the province were
required to complete a declaration form and be available for contact by public
health officials during their 14 day self-isolation period. As of noon on 27
April 2020 those arriving from outside the province were required to provide
specifics of their plan to self-isolate. Employers of those arriving from a point
of origin outside Canada were similarly required to submit the specifics of
their plan for the employees’ self-isolation. Those arriving by motor vehicle
from Quebec were required to stop at their point of entry for the purpose of
the declaration.

 Other measures leading up to the travel restriction related to operators, staff
and residents of personal care homes and assisted living facilities, members
and staff at the House of Assembly, those who attended Caul’s Funeral Home
from 15-17 March 2020, and those returning from Kearl Lake, Alberta. The
latter were required to self-isolate if arriving after 29 March 2020 and to
contact 811 for follow up.

[36] Special Measures Order (Amendment No. 11) came into effect on 4 May
2020. It prohibited all individuals from entering Newfoundland and Labrador,
except for the following:
a.

Residents of Newfoundland and Labrador;

b.

Asymptomatic workers and individuals who are subject to the Exemption
Order for the 14-day self-isolation; and

c.

Individuals who are permitted entry to the province in extenuating
circumstances, as approved in advance by the Chief Medical Officer of
Health.

[37] “Resident” is defined in the Order as an individual who:
a.

is lawfully entitled to be or to remain in Canada;

b.

makes his or her home in the province; and

 Page 20
c.

is ordinarily present in the province.

but does not include a tourist, transient or visitor to the province.

[38] Special Measures Order (Travel Exemption Order) came into effect on 5 May
2020, exempting those individuals who enter the province:
a.

who have a significant injury, condition or illness and require the support
of family members resident in Newfoundland and Labrador;

b.

who are visiting a family member In Newfoundland and Labrador who is
critically or terminally ill;

c.

to provide care for a family member who is elderly or has a disability;

d.

to permanently relocate to the province;

e.

who are recently unemployed and who will be living with family members;

f.

to fulfill a short term contract, education internship or placement;

g.

who are returning to the province after completion of a school term out of
province; and

h.

to comply with a custody, access, or adoption order or agreement. (This
includes a child/children arriving in the province, as well as individuals who
are accompanying the child/children.)

[39] As already noted, for ease of reference these two special measures are referred
to throughout this decision as the “travel restriction.” Both were in play when Ms.
Taylor sought permission to travel to this province.

THE EVIDENCE

[40] The within matter proceeded by way of Originating Application with affidavit
evidence and cross-examination. Specifically, the Applicants provided an affidavit
from Ms. Taylor, dated 20 May 2020, detailing her efforts to come to this province.

 Page 21
The facts contained therein are not contested by the Respondents and Ms. Taylor
was not cross-examined. The CCLA provided an affidavit from Cara Faith Zwibel,
Director of the Association’s Fundamental Freedoms Program, dated 20 May 2020.
Ms. Zwibel’s affidavit related to the standing of the CCLA as a public interest
litigant. She was not cross-examined.

[41] The Respondents provided affidavit evidence from Dr. Brenda Wilson, Full
Professor and Associate Dean of the Faculty of Medicine at Memorial University;
Dr. Patrick Parfey, Professor of the Faculty of Medicine at Memorial University and
clinical epidemiologist; Dr. Proton Rahman, University Research Professor and
Clinical Scientist with the Faculty of Medicine at Memorial University and Eastern
Health; Dr. Janice Fitzgerald, CMOH, for the Province of Newfoundland and
Labrador; and Katie Norman, Assistant Deputy Minister of Enforcement and
Resource Services with the Department of Fisheries and Land Resources. All
affiants were cross-examined by the Applicants with the exception of Ms. Norman.

[42] The following is a summary of the evidence provided by each witness.

Kimberley Taylor

[43] Kimberley Taylor, is a Canadian citizen, born and raised in Kilbride, a
community within the City of St. John’s, Newfoundland and Labrador. Ms. Taylor
moved to Halifax, Nova Scotia, in 1996 and resides there with her spouse and two
children. Since moving to Halifax, Ms. Taylor and her family would regularly return
to this province to visit her parents and other family members.

[44] On 5 May 2020 Ms. Taylor’s mother passed way suddenly at her home in
Kilbride. After learning of the travel restriction, on 6 May 2020 Ms. Taylor followed
the instructions on the province’s website and requested an exemption by email, so
that she might attend her mother’s funeral.

 Page 22
[45] In her email Ms. Taylor writes:
Please contact me ASAP.
My mother in St. John’s has just passed away from natural causes (not COVID-19)
I live in Halifax, NS and need to be with my family in NL
What do I have to do to be permitted to travel to NL so that I can grieve with my
family?
Thank you,

[46] While waiting for a response Ms. Taylor researched available flights and made
arrangements to self-isolate for a period of 14 days upon her anticipated arrival in
this province. With the agreement of her family and cooperation of the funeral
director she planned a burial service for her mother to take place after her period of
self-isolation. Ms. Taylor was to attend the service with her father and younger
sister.

[47] Having not received a response, later that same day Ms. Taylor repeated her
request, noting that she had not received an acknowledgement, nor did she have a
phone number to call for information.

[48] Eventually, late in the day on 8 May 2020, Ms. Taylor received a reply from
the office of the CMOH, denying her request to travel. The response reads, as
follows:
Dear Ms. Taylor,
Your request for an exemption of the Special Measures Order (Travel Exemption
Order) of May 5, 2020 to enter Newfoundland and Labrador has been reviewed
based on the Information you provided. While I would like to offer my deepest
condolences to you and your family, unfortunately, your request has been denied,
meaning you are not permitted to enter Newfoundland and Labrador at this time.
Please continue to check https://www.gov.nl.ca/covid-19/ website for updates on
NL Alert levels and travel guidance.

 Page 23
A person may request that the Chief Medical Officer of Health reconsider this
decision by filing a written request for reconsideration within 7 days of the date on
this letter. A written request for reconsideration of this decision shall include:
(i)

the reasons for the request;

(ii)

a summary of the facts relevant to the request;

(iii)

whether the decision should be revoked or how it should be varied; and

(iv)

the contact information of the person making the request; and shall be sent
to the following address: exemptionrequests@gov.nl.ca

Once again, my deepest condolences. If you have any further questions, please
visit www.gov.nl.ca/COVID-19.

[49] On 14 May 2020 Ms. Taylor submitted a reconsideration request.15 On 16
May 2020, Ms. Taylor was granted an exemption, permitting her entry into the
province.16

Cara Faith Zwibel (for the CCLA)

[50] Ms. Zwibel is the Director of the CCLA’s Fundamental Freedoms Program.
The CCLA was founded in 1964 as a national, non-profit, independent, nongovernmental organization dedicated to promoting respect for and observance of
fundamental human rights and civil liberties in Canada.17 Its work includes research,
advocacy, public education and engagement. The CCLA seeks to hold government
accountable by actively defending and promoting the recognition of fundamental
human rights through the media, courts, provincial legislatures and Parliament, as
well as through training in schools and universities.

15

Fitzgerald Affidavit, at para. 105.

16

Ibid, at para. 106.

17

Affidavit of Cara Faith Zwibel, dated 20 May 2020, at para. 5.

 Page 24
[51] The CCLA is no stranger to constitutional litigation, having either intervened
or been granted standing in no less than 30 cases involving the Charter and
constitutional rights generally.18

[52] With respect to the COVID-19 pandemic the CCLA has actively monitored
and advocated for a rights based response by governments and agencies, both in
terms of protecting vulnerable populations and preventing what it perceives as
unjustified infringements of civil liberties under the guise of public safety. To this
end, the CCLA has written to numerous public authorities expressing concerns and
making recommendations on a variety of measures relating to COVID-19.19 This
correspondence includes a letter to the Attorney General of this province, dated 11
May 2020, expressing concerns regarding the travel restriction and ss. 28.1 and 50(1)
of the PHPPA (the enforcement and inspection provisions).

[53] The CCLA has also initiated litigation as a public interest litigant in two
matters directly related to the COVID-19 pandemic. On 24 April 2020 the CCLA
and others commenced an application in the Ontario Superior Court of Justice
against the City of Toronto and Province of Ontario, challenging the constitutionality
of the Toronto Shelter Standards and the Toronto 24 Hour Respite Standards. On
12 May 2020 the CCLA and others brought a challenge in the Federal Court
regarding the government’s handling of the COVID-19 pandemic in federal
correctional institutes.20

Katie Norman

[54] Katie Norman is the Assistant Deputy Minister of Enforcement and Resource
Services with the province’s Department of Fisheries and Land Resources, and
serves as the operational lead for points of entry during the COVID-19 pandemic.

18

Ibid, at paras. 7, 8, 17, 18 and 20.

19

For a more detailed account of this correspondence, see Zwibel Affidavit, at para. 13.

20

Zwibel Affidavit, at paras. 15-16.

 Page 25
Ms. Norman, who was not questioned by the Applicants, tells us that as of 9 July
2020 neither the Royal Newfoundland Constabulary, nor the Royal Canadian
Mounted Police have undertaken enforcement measures under s. 28.1 of the PHPPA.
Rather, those who have been asked to leave the province have done so voluntarily.
In some instances the province has paid for accommodation, or return transportation,
for persons unable to reasonably assume this cost themselves.21

Dr. Brenda Wilson

[55] Dr. Brenda Wilson is a Full Professor, and Associate Dean of Community
Health and Humanities in the Faculty of Medicine at Memorial University of
Newfoundland and Labrador. Following cross-examination by the Applicants, Dr.
Wilson was qualified by the Court as an expert in the field of public health decision
making. Dr. Wilson did not offer advice to the CMOH with regard to the travel
restriction. Rather, her evidence and report focused more broadly on the practice
and culture of public health decision making.22

[56] Dr. Wilson explained that while public health interventions aim to prevent
disease or improve health in individuals, they are typically applied to groups,
populations, or systems as a whole:
For example, legislation to require the removal of lead from gasoline is an
intervention applied at a population/system level: no individual consent is sought
and no individual may seek an exemption. While all children may, in principle, be
biologically susceptible to the negative health effects of lead (brain damage and
intellectual impairment), in reality only a small proportion would have been
destined to experience this. This is the essence of the population-based approach.23

21

Affidavit of Katie Norman, dated 9 July 2020, at paras. 7-10.

Dr. Wilson’s Report “The Practice and Culture of Public Health Decision Making”, dated 2 July 2020, is attached
as Tab 2 to her 9 July 2020 Affidavit.
22

23

Wilson Affidavit, Tab 2, at p. 2.

 Page 26
[57] Exposure to disease causing risks is not distributed equally across all groups
in society, nor is the ability to access the means to mitigate these risks, whether
through individual preventative behaviors, or access to the health services needed to
treat the resulting medical conditions. As such, applying a preventative measure
across the entire population is often a more effective means than targeting smaller at
risk sub-groups24. In addition, such an approach is often a better use of constrained
resources.

[58] Dr. Wilson observed that:
Public health goals are rarely achieved through single actions or simple tools. A
range of mechanisms may be employed, depending on the health problem and
context.25

[59] The central objective of a public health practice is to intervene early and
effectively to mitigate or prevent the effects of harmful agents. To the lay observer,
when the desired outcome is achieved (e.g. lower level of disease), these public
health interventions often appear to have been unnecessary or overdone26.

[60] In the context of a public health emergency with emergent and rapidly
evolving situations, the time available for seeking out and analyzing evidence
shrinks. Where the goal is to avert serious injury or death, the margin for error may
be narrow: “The more urgent the situation, and the less evidence or precedent, the
more that ‘best judgment’ must be exercised.”27 This approach is illustrative of the
“precautionary principle”, the case for action to prevent anticipated harm before
confirmatory evidence is available.28 To illustrate the point Dr. Wilson referred to

24

Ibid.

25

Ibid, at p. 3.

26

Ibid, at p. 2.

27

Ibid, at p. 3.

28

Ibid.

 Page 27
Canada’s ‘tainted blood’ tragedy, where decision makers delayed measures to
protect the supply of donated blood from HIV while awaiting evidence, prompting
the Krever Commission to conclude that the “action to reduce risk should not await
scientific certainty.”29

[61] Long before the WHO officially declared COVID-19 a pandemic, public
health officials across the world were preparing their responses, extrapolating as best
they could from influenza and other recent outbreaks relating to coronavirus30.

[62] In the case of COVID-19, Dr. Wilson explained that there were two
characteristics which served to increase the complexity of public health decision
making:
The first is that this is a novel virus: never before encountered in the world,
therefore its biology unclear, no possibility of immunity in any country’s
population, no vaccine, and no treatments confirmed to be effective. The second is
that this has produced a much more severe, complicated, and protracted clinical
condition than seen in influenza, with an approximately ten times higher death
rate.31
[emphasis in original]

[63] The early messages communicated by the WHO and national public health
agencies was that COVID-19 seemed more complex than influenza or a respiratory
infection, as it affected the cardiovascular system and kidneys and caused severe
blood clots, such that a much higher proportion of diagnosed patients needed ICU
support and mechanical ventilation than expected. The risk of critical illness in the

29

Ibid, quoting from Krever, H. The blood supply system in Canada: systemic problems in the 1980s. Commission
of Inquiry on the Blood System in Canada. Final Report. Ottawa: Canadian Government Publishing 1997 (Part W,
at p. 989].
30

Ibid, at p. 4. Sudden Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS).

31

Ibid.

 Page 28
elderly was also higher than expected, as was the overall rate of death in diagnosed
patients.

[64] With asymptomatic spread (spread without symptoms) a reality, a community
could see a doubling of cases every few days, known as exponential spread. It was
estimated that on average one infected person could pass the virus to 2-3 others.
Over the course of 30 days one infected person could therefore infect 400 others,
with each of these infecting 400 more, and so forth.32

[65] Cutting down person to person transmission would thereby slow the rate of
new cases, “flattening the curve”, thereby giving the health systems time to increase
their available beds, ICU places, and ventilators, and provide front line health care
workers time to react while protecting themselves.33 Flattening the curve would also
give time to develop a vaccine, effective treatments and give societies time to adjust
to life with COVID-19.

[66] From a public health perspective the speed with which control interventions
are implemented is crucial. The idea of exponential spread is that the speed of the
increase in transmission gets greater day by day. One early calculation, based in
China, estimated that a single day’s delay in implementing effective control
measures could lead to a 40% increase in total cases in a population34. According to
Dr. Wilson, the feeling of urgency for “immediate, decisive, heavy action” was
probably best captured in the following remarks of Dr. Michael Ryan of the WHO
at a media briefing in early March:
Be fast, have no regrets, you must be the first mover. … If you need to be right
before you move, you will never win. Perfection is the enemy of the good when it
comes to emergency management. Speed trumps perfection. And the problem in
society at the moment is everyone is afraid of making a mistake, everyone is afraid

32

Ibid, at p. 4.

33

Ibid.

34

Ibid.

 Page 29
of the consequences of error. But the greatest error is not to move, the greatest
error is to be paralysed by the fear of failure.35

[67] Dr. Wilson concludes her report:
Public health practitioners are expected to be able to offer advice and make
decisions based on best available scientific evidence, but often under conditions of
uncertainty. Intervening at a population level to address an important public health
problem is rarely a simple prospect, usually requires multiple approaches, and may
simultaneously be perceived as too much or too little by different sections of
society. However, the more serious the consequences of under-reaction, the more
that decision-making is likely to be driven by the precautionary principle: in the
absence of clear evidence, use best judgement to prevent potential harm.
Despite pandemic preparation being a core activity for public health agencies, it
was evident that extraordinary measures would be necessary as the true impact of
the COVID-19 pandemic became apparent. For the province of Newfoundland and
Labrador, as for every other jurisdiction, judgements about the necessity of specific
public health decisions during the pandemic’s first few months will be discernable
only in hindsight.36

Dr. Patrick Parfrey

[68] Dr. Patrick Parfrey is a Professor at the Faculty of Medicine at Memorial
University and a clinical epidemiologist. He is the lead member of a group entitled
“Quality of Care NL” at Memorial University. Quality of Care NL is funded by the
Canadian Institute of Health Research. It examines and makes recommendations
concerning the performance of the health system in Newfoundland and Labrador, as
well as interventions in health care undertaken in hospitals, long term care facilities
and the community.

35

Ibid.

36

Ibid, at p. 5.

 Page 30
[69] Under Dr. Parfrey’s direction Quality of Care NL prepared two reports for
this litigation. The first, entitled “Coronavirus Disease (COVID-19): Border Control
and Travel Restrictions” is a review of border controls to prevent the spread of
COVID-19 in comparable island populations and other provinces, as of 19 June
2020.37

[70] After the WHO declared COVID-19 a pandemic on 11 March 2020, many
governments implemented travel restrictions, or closed their borders to non-citizens
and non-residents in an effort to arrest the spread of the virus. As case numbers
decrease and countries begin to loosen their public health restrictions, many continue
to maintain strict control over their borders while allowing more domestic and
regional travel.

[71] While there is no clear consensus on how borders are to be managed, small
populations with fewer cases of COVID-19 are more likely to have stricter border
control.38

[72] The second report of Quality of Care NL, dated 25 June 2020, is entitled “NL
Population Health Implications for COVID-19 Risk”. It compares the risk factors
for severe illness from COVID-19 in this province with the rest of Canada.

[73] Risk factors for severe illness or death from COVID-19 include asthma,
chronic kidney disease, chronic lung disease, diabetes, chronic liver disease, serious
heart conditions, obesity, cancer and age over 65.39

37

Affidavit of Patrick Parfrey dated 6 July 2020, Tab 2. The Report notes that measures to prevent the spread of
COVID-19 are in a constant state of flux. Hence, the information provided is accurate for that date only.
38

39

e.g. New Brunswick, Prince Edward Island, Yukon and Nunavut. Parfrey Affidavit, Tab 2.

Parfrey Affidavit, Tab 3. The risk factors were obtained from the Centers for Disease Control and Prevention. They
are not challenged by the Applicants. Nor do the Applicants question the ranking of this province against the rest of
Canada.

 Page 31
[74] This report concludes that “Newfoundland and Labrador has the lowest life
expectancy and health status in Canada.”40 Further, Newfoundland and Labrador
has the dubious distinction of ranking, the highest, or next to highest in the country
for many of the risk factors for adverse outcomes from COVID-19.41 With an aging
population, the province ranks 9th in Canada, with 20.5% of its residents being 65
years of age or older.

Dr. Proton Rahman

[75] Dr. Proton Rahman is a University Research Professor and Clinical Scientist
with the Faculty of Medicine at Memorial University and Eastern Health. Following
cross-examination, Dr. Rahman was qualified by the Court as an expert in the field
of epidemiology.

[76] The Newfoundland and Labrador Centre for Health Information (NLCHI) is
a Crown Agency of the government of Newfoundland and Labrador with a
legislative mandate which includes enhancing the health and well-being of
Newfoundland and Labrador residents through, amongst other measures, the
preparation of health reports, conducting research and evaluation and providing
analytics and decision support services.42

[77] In early March 2020 the NLCHI was asked by the Department of Health and
Community Services to “co-ordinate an expert group which would use predictive
modelling to help inform public health decision-making with respect to the COVID19 pandemic.”43 The end result was the Predictive Analytics Technical Team, with
Dr. Rahman as its lead. The team, assisted by NLCHI, was asked by the Government
40

Parfrey Affidavit, at para.6.

41

The province was variously ranked 9th or 10th within 10 representing the worst/unhealthiest. Parfrey Affidavit, Tab
3.

42

Affidavit of Proton Rahman, dated 9 July 2020, Tab 2, at p. 4.

43

Ibid.

 Page 32
of Newfoundland and Labrador to model the impact of the travel restriction
subsequent to 4 May 2020 on the spread of COVID-19. Following an examination
of the relevant peer reviewed literature, two separate modelling approaches were
undertaken, in order to take into account the province’s “spatial, biological, social
and environmental elements”44. The models chosen were designed to best represent
the COVID-19 case trajectory with, and without the travel restriction.

[78] The team concluded that:
The results from our simulation modelling demonstrates that travel restrictions
significantly reduced the COVID-19 spread in the NL population.45

[79] The two models used by the team are referred to as the “NL Branching Process
Model” (NL-BP) and the “NL Agent Based Simulation Model” (ABS-NL). Dr.
Rahman explained that both approaches were undertaken as the peer reviewed
literature is replete with examples of each. In the scientific community there is no
consensus as to the “best” approach, as each model has its unique strengths and
weaknesses. Dr. Rahman explained that by utilizing both models the team
endeavored to generate a balanced inference, free of any pre-existing bias towards a
particular approach.46

[80] During cross-examination Dr. Rahman confirmed that both models were
chosen as they are generally accepted within the epidemiological community. The
Applicants offered no evidence to the contrary.

44

Ibid, at p. 3.

45

Ibid.

46

Ibid, at p. 9.

 Page 33
NL Branching Process Model (NL-BP)

[81] This model has been used to inform New Zealand’s approach to COVID-19
management. The assumptions and methodology were provided in the Technical
Report as an attachment to Dr. Rahman’s Affidavit. The aim of the model was to
predict COVID-19 cases in the nine weeks subsequent to 4 May 2020, under two
scenarios: 1) when the travel restriction is implemented and 2) with no travel
restriction in place.47

[82] Dr. Rahman explained the methodology of the NL-BP model, as follows:
In the NL-BP model, infection is spread to susceptible NL residents when they
come into contact with an infected person, who may be either another NL resident
or a traveler (Appendix A – Technical Report 1). The NL-BP model distinguishes
between infected individuals that are pre-clinical, clinical, and asymptomatic,
considers infectivity depending on the number of days since the infection onset,
assumes that individuals with clinical infections self-isolate, and allows for
individual differences and chance events (e.g. a few infected individuals who would
generate many more new infections than the average infected person).
Prior to May 4th, the model is fit to data describing the number of active COVID19 cases in NL, where the model fitting considers the number of daily contacts
between NL residents before and after the declaration of the public health
emergency on March 18th (Appendix A – Technical Report 1: Figure 1). After May
4th, the analysis considers future scenarios where no travel restriction is
implemented. The number of infected travelers that fail to self-isolate per month is
assumed to be 3 (no travel restriction) and 0.24 (travel restriction). The value of 3
infected travelers failing to self-isolate per month when there is no travel restriction
is likely an underestimate, given the large number of travelers that enter NL during
this time period and recent data documenting the poor compliance rates with
lockdowns (Smith et al, 2020). The effect of the travel restriction also depends on
the level of physical distancing in place at the time, as reflected by daily contact
rates.48

47

Ibid.

48

Ibid, at pp. 9-10.

 Page 34
[83] The conclusion reached using the NL-BP model was that over the nine weeks
subsequent to 4 May 2020, failing to implement the travel restriction resulted in ten
times more cases of COVID-19 in Newfoundland and Labrador residents than what
actually occurred, where these residents are part of an infection chain that began
with an infected traveler.49 If a period longer than nine weeks were considered, the
predicted effect of the travel restriction would be greater than a tenfold decrease, as
the number of cases increases exponentially. As a result, the difference between the
two scenarios, travel restriction versus no restriction widens over time. The model
also determined that if 15 infected travelers failed to self-isolate each month, with
no travel restriction in place, an estimated 50-fold increase in the total number of
cases would occur over the nine weeks subsequent to 4 May 2020.50

NL Agent Based Simulation Model (ABS-NL)

[84] Like the NL-BP model, the details of the methodology, assumptions, risks,
strengths and biases of the ABS-NL model were described in a Technical Report
appended to Dr. Rahman’s affidavit.

[85] The ABS-NL model tested three scenarios:
1) Travel restrictions in place with 1,000 exempted travelers entering the
province per week (current base scenario);
2) Travel restrictions lifted and non-resident travel to NL resumes at typical
levels; and
3) Travel restrictions lifted and non-resident travel to NL resumes at 50% of
current levels.51

49

Ibid.

50

Ibid, at p. 11.

51

Ibid, at p. 12.

 Page 35
[86] The ABS-NL model is described by Dr. Rahman, as follows:
The ABS NL travel model is based on the total number of annual non-resident
travelers to the province from May 1st and simulates importation of infected cases
over the next 100 days. As the exact percentage of travelers infected with SARSCoV-2 is not known, the model assessed two plausible infection rates (0.03%,
0.1%). We assumed that 75% of travelers follow the stated requirement of a 14day self-isolation upon arrival in NL, and that 50% of those who did not self-isolate
will choose to self-isolate if they became symptomatic. During the travel
restrictions, approximately 1000 individuals per week were granted travel
exemptions and able to enter the province. The importation impact from these
travelers were incorporated in the ABS modelling.
The scenarios start on May 1, and simulate 100 days. An initial undetected five
cases are assumed to be present in the community at the start of the simulation.
Households are engaged in a “double bubble”, in accordance with NL’s current deescalation protocol. Non-resident travelers that arrived via air and car were assigned
to ‘workplace’ if they travel for business or assigned to ‘households’ if they are in
NL to visit relatives and friends. The non-resident travelers are also matched to
economic zones based on the site of tourist attractions. At each location visited by
a traveler, there is interaction with other individuals at the same location (household
members, fellow students, fellow employees, etc.), and an individual’s chance of
becoming infected is determined by contact with infected individuals in each
location and the nature of that contact. Exempted travelers are assumed to only be
visiting family or business.
The daily SARS-CoV-2 infections significantly increase as the percentage of
infected travelers rises from 0.03% to 0.1% for both 100% and 50% travel volume
scenarios (Figure 2). At 100% travel volume, when comparing 0.03% of incoming
travelers being infected to 0.1% of exempted travelers infected (this is the most
conservative case for SARS-Co-V-2 infections in the 100% scenario), there was a
5x greater peak for infections when no travel restrictions were in place. And when
0.1% of incoming travelers were infected there was 20x more infections when
compared to 0.1% infections for exempted travelers, during the travel restrictions.
Similar results are observed for the 50% travel volume scenarios, though at smaller
magnitudes: The lifted travel restrictions scenarios are three-and six-fold worse
than the travel restrictions for 0.03% and 0.1% of travelers infected, respectively.52

52

Ibid, at p. 12.

 Page 36
[87] The conclusion reached through the application of this model is that the travel
restriction provides significant protection to the province’s population:
The ABS NL model provides insight when comparing multiple “what if scenarios”.
This model informs us that the lifted travel restriction scenarios pose a much greater
risk of new infections. The strength of the model is that incorporates granular NL
data, allowing for individual behavioral, demographic, health, spatial and
environmental characteristics to be represented. As contact tracing has not been
incorporated into the ABS-NL model, it overestimates the number of daily cases,
however given the large difference between the scenarios, inclusion of contact
tracing is highly unlikely to erase the magnitude of the difference. Thus, our ABS
model indicates that the travel restrictions provides significant protection to the NL
population.53
[emphasis added]

[88] The overall conclusion reached by Dr. Rahman’s team is summarized, as
follows:
In summary, SARS-CoV-2 is a novel coronavirus that continues to exhibit a very
unpredictable course. NL has done well in managing the first wave of the
pandemic, but over 99% of the population lacks immunity to the virus. Swift
deployment of public health measures, including implementation of travel
restrictions, has been key in controlling SARS-CoV-2 infections in NL to date.
Similar island jurisdictions with low infection rates have opted for implementing
strict border controls, thus allowing the loosening of other public health measures,
while keeping infection rates low. Given the older population, high prevalence of
chronic conditions, and the population dispersed over a vast geography, controlling
the border is a prudent strategy to manage this pandemic in NL. The NL Branching
process Model and Agent Based Simulation NL models are two independent
mathematical simulation models that provide clear evidence in support of the travel
restriction in NL on May 4th, 2020. Significant reduction in imported cases in NL
will lead to lower rates of community transmission. It is important to minimize
community transmission as the epidemic increases quickly due to the positive
feedback between the number of infected people, and the number of new infections
they generate leading to exponential grown of SARS-CoV-2 during the early phase
of the epidemic. The travel restriction in NL is not an isolated intervention, but is
part of a comprehensive public health action plan that aims to reduce the impact of
COVID-19 in the province. Low rates of community transmission combined with

53

Ibid, at pp. 12-13.

 Page 37
limited the number of imported cases will support the safe de-escalation of public
health measures.54
[emphasis added]

[89] The upshot of the modelling conducted by the Predictive Analytics Team,
headed by Dr. Rahman, is that the travel restriction is an effective measure at
reducing the spread of COVID-19 in Newfoundland and Labrador.

Dr. Janice Fitzgerald

[90] Dr. Janice Fitzgerald is the CMOH for Newfoundland and Labrador. Her
qualifications for this position are not challenged by the Applicants. Dr. Fitzgerald
explained that while she works within the structure of the Government of
Newfoundland and Labrador and reports to the senior executive within the
Department of Health and Community Services, the advice she provides is both
independent and impartial.

[91] In addition to her own expertise, Dr. Fitzgerald tells us that in providing this
advice she relies on expertise from outside the office, including but not limited to
expertise from:
a.
b.
c.
d.
e.
f.
g.
h.
i.

other employees within the Department of Health and Community Services;
Federal and Provincial Government departments and agencies;
regional health authorities;
the Newfoundland and Labrador Centre for Health information;
the Newfoundland and Labrador Centre for Applied Health Research;
university-affiliated research teams;
the Canadian Institute for Health Information;
the Canadian Agency for Drugs and Health Technology; and
national and provincial public health and health professional associations.55

54

Ibid, at p. 14.

55

Fitzgerald Affidavit, at para. 13.

 Page 38
[92] COVID-19 is a new disease not previously identified in humans, caused by
the SARS-CoV-2 virus. This virus is one of a large family of viruses known as
coronaviruses, which may cause illness in people and animals. Typically, human
coronaviruses are associated with such mild illnesses as the common cold. Rarely,
however, these viruses can spread from animals to humans, as was the case with the
severe acute respiratory syndrome coronavirus (SARS CoV) and Middle East
respiratory syndrome coronavirus (MERS CoV), and now the SARS-CoV-2 virus.56

[93] COVID-19 is spread mainly from close person to person contact, (within
approximately 6 feet) particularly through respiratory droplets when an infected
person coughs, sneezes, talks or sings. The virus may also be transmitted by
touching a surface or object contaminated with the virus and then touching the eyes,
nose or mouth.57

[94] Recent evidence has shown that the virus can be transmitted by those who
have not yet developed symptoms (pre-symptomatic) and people who never develop
symptoms (asymptomatic), although it does not appear that these groups are the
major drivers of the disease.58

[95] COVID-19 disproportionally affects those with pre-existing medical
conditions, as underlying chronic disease tends to weaken the body’s defence
mechanism to viral infections. In addition, those over 65 years of age are more likely
to be hospitalized and more likely to be admitted to ICU, even without a pre-existing
medical condition. As COVID-19 is a new disease, its long term effects are
unknown. Some of those infected have short hospital stays while others are

56

Ibid, at paras. 23-25.

57

Ibid, at para. 26.

58

Ibid, at para. 28.

 Page 39
extended. Elderly patients often do not recover to their pre-illness baseline, thus
increasing the need for future care.59

[96] Newfoundland and Labrador has an aging population with Indigenous
communities on the island and in Labrador. The rural nature of the province is such
that any unnecessary importation of the virus, and the resulting strain on the health
care system in rural communities, must be considered in public health decision
making. There are a total of 1,376 hospital beds in the province and 92 ICU beds.
Despite the reduction in health care services in anticipation of COVID-19, ICU
occupancy rates consistently hover between 50-60%. Modelling prepared for the
NL Center for Health Information on 8 April 2020 shows that ICU bed capacity
would be quickly overwhelmed if the province were to experience significant
infection rates.60

[97] The medical community has generally accepted that the incubation period for
COVID-19 is up to 14 days with the median estimate at 5-6 days between infection
and the onset of clinical symptoms.61

[98] At this time there is no therapy to treat or prevent COVID-19. There is no
vaccine and no drug therapies approved by Health Canada.62 In such a circumstance
the first goal of pandemic planning is to minimize serious illness and death, while
the second goal is to minimize societal disruptions.63

[99] In the absence of a vaccine or treatment, health officials must rely on public
health measures, (i.e. non-medical actions to reduce the spread of COVID-19) both

59

Ibid, at paras. 47-50.

60

Ibid, at para. 43, Exhibit 6.

61

Ibid, at para. 31.

62

Ibid, at paras. 32-34.

63

Ibid, at para. 74.

 Page 40
community and personal. The goal is to identify and isolate all cases and contacts
so that the virus is not spread throughout the community. There is no one size fits
all solution, as the epidemiology of the disease is different in different areas of the
country. For example, Ontario and Quebec have had large outbreaks with
widespread community transmission, while the Atlantic provinces have had smaller
outbreaks and less community spread.64

[100] Community spread refers to the spreading of a disease from person to person
in the community. There are two general types: 1) where the source is known; 2)
where the source is not known. The latter is worrisome as it makes contact tracing
more difficult and generally is an indicator of a more widespread transmission of the
disease in the community. As of 9 July 2020 (the date of Dr. Fitzgerald’s Affidavit)
Newfoundland and Labrador had not experienced widespread community
transmission of COVID-19. 97% of cases have come from a known source.65

[101] The Caul’s Funeral Home outbreak served as a poignant reminder of the
impact infected travelers can have on the spread of the virus. The Caul’s outbreak
lasted almost a month, from 16 March to 13 April 2020, during which time 93 of the
350 persons who attended the funeral home over a three day period developed
COVID-19, an attack rate of 26.6%. Four generations of transmission occurred from
the attendees of the funeral home and their contacts, affecting households and
several workplace settings, including healthcare, Canada Post, an IT company and a
municipal para-transit facility. There were 12 hospitalizations, including 5 ICU
admissions and 2 deaths associated with the “Caul’s cluster.” Some people
recovered within 10 days, while others were ill over two months 66.

[102] At the time of the travel restriction the Caul’s cluster had resolved. However,
Dr. Fitzgerald explained that with a low prevalence rate of COVID-19, the biggest
risk to Newfoundland and Labrador is the introduction of the disease from other

64

Ibid, at para. 78.

65

Ibid, at para. 62.

66

Ibid, at paras. 66-67.

 Page 41
jurisdictions. At the time of the travel restriction other provinces were seeing an
increase in cases of COVID-19 while this province was having success at controlling
the outbreak.

[103] As of 5 May 2020 seven provinces had more active COVID-19 cases than
Newfoundland and Labrador, with only New Brunswick, Prince Edward Island and
the territories having less. On 5 May 2020 Nova Scotia had 991 cases of COVID19 and was reporting new cases daily. It was then in the midst of an outbreak in a
long-term care facility in the Halifax metro area, as well as community outbreaks.67

[104] Due to the sudden onset of COVID-19 there is currently a sparsity of peerreviewed scientific literature and medical publications which specifically address
the effectiveness of travel restrictions in curtailing this disease 68. There are several
studies which suggest that the exportation of the disease from China was curtailed
by travel restrictions, giving health systems time to prepare and respond. A study
out of Europe showed a faster spread across Europe with unconstrained travel.69

[105] Both the WHO and Public Health Agency of Canada have recognized that the
control of importation risk is a readiness criteria for lifting public health measures
in place.70

[106] Self-isolation can serve as on effective means of curtailing the spread of
COVID-19, when people actually self-isolate. However, at the time of the travel
restriction concerns had been raised by some municipalities regarding noncompliance with self-isolation orders. There was also a concern that as cases
continued to rise in other parts of the country, people would travel to this province
67

Ibid, at paras. 71-73.

68

Ibid, at para. 82. The work of Dr. Rahman and the predictive analytics team stands as an exception in this
jurisdiction.

69

Ibid, at para. 83.

70

Ibid, at para. 84.

 Page 42
to avoid COVID-19, thereby increasing the importation risk. In the case of the
Caul’s Funeral Home cluster the province had witnessed firsthand how a single case
could easily spread from person to person.71

[107] Around 22 March 2020 a public reporting form was introduced, with the result
that between that date and 5 May 2020 there were 3,453 reports and e-mails. As a
result, public health officials were made aware of 989 complaints that individuals
were not complying with self-isolation requirements72. Complaints were also
received from members of the House of Assembly.

[108] Information received from Marine Atlantic confirmed that a number of
travelers were booked with a return sail time within the 14 day self-isolation period.
This gave rise to a concern that tourists, in particular, were less inclined to follow
this requirement. In addition, travel by itself is a high risk activity for the spread of
COVID-19.73

[109] Contact tracing is the process of identifying, assessing and managing
individuals who have been exposed to a disease to prevent transmission to others.74

[110] Dr. Fitzgerald explained that the follow up for self-isolation involves a phone
call from a regional health authority to educate the traveler about self-isolation and
to confirm that the traveler is self-isolating. As a practical matter there are human
resource challenges in fulfilling this mandate, leading to an “honour system.”75
Restricting the number of persons entering the province thus allows public health
officials to better monitor and track new arrivals, as well facilitating a more rapid

71

Ibid, at para. 89.

72

Ibid, at para. 69, Tab 18, para. 13.

73

Ibid, at para. 95.

74

Ibid, at para. 37.

75

Ibid, at para. 96.

 Page 43
response to an outbreak. With the travel restriction in place, public health officials
can conduct contact tracing with greater ease.

[111] The diagnostic test used in this province is the nucleic acid test. It involves
taking a sample from the patient’s nasopharynx, or lungs, in search for genetic
material from the virus. The test is less than perfect, with a false negative between
20 and 30 percent.76 A false negative can lead to a heightened sense of security,
resulting in an inadvertent spread of the virus.

[112] Testing alone is therefore not an effective means to combat the spread of
COVID-19 and cannot be relied upon to reduce importation risk. It is a point in time
test result and can lead to a negative test in a pre-symptomatic person.77

[113] According to Dr. Fitzgerald an effective public health approach to controlling
the spread of COVID-19 is multipronged and includes measures such as physical
distancing, quarantining those who may have been exposed, isolation of those
infected, testing, the rapid identification of cases and contact tracing, prohibiting
mass gatherings, the closure of businesses and schools, limiting contact to those
outside of your household, and travel restrictions. Private measures include
handwashing, not touching your face, cleaning and disinfecting high contact
surfaces, physical distancing, staying home if unwell and practicing proper cough
and sneeze etiquette.78

[114] Dr. Fitzgerald explained that the public health management of COVID-19
presents as a moving target as new information regarding this virus comes to light.
Measures taken to control the spread of COVID-19, including the travel restriction,
are regularly reassessed and adjusted as necessary. Indeed, on 3 July 2020
Newfoundland and Labrador joined an “Atlantic bubble” allowing for unrestricted

76

Ibid, at paras. 57-60.

77

Ibid, at para. 103.

78

Fitzgerald Affidavit, at Tab 18, para. 3(c)(d).

 Page 44
travel without the need to self-isolate for asymptomatic travelers in Atlantic
Canada.79

[115] Requests for exemption from the travel restriction are reviewed by a Travel
Request Exemption Team, consisting of employees from the Department of Health
and Community Services. The final decision is made by Dr. Fitzgerald.80

SHOULD THE CCLA BE GRANTED PUBLIC INTEREST STANDING?

Introduction

[116] On 5 August 2020, following argument, I granted the CCLA public interest
standing to join with Ms. Taylor in challenging s. 28(1)(h) of the PHPPA, as outside
the legislative competence of the provincial Legislature, and the travel restriction as
contrary to the Charter. At the same time I denied the CCLA public interest standing
to challenge the enforcement and investigative provisions, ss. 28.1 and 50(1) of the
PHPPA, as contrary to the Charter. These provisions are not challenged by Ms.
Taylor. My ruling with regard to standing was with written reasons to follow. These
are those reasons.

The Test for Standing

[117] The grant of public interest standing is a discretionary decision in which the
Court is required to weigh three considerations: whether the case raises a serious and
justiciable issue; whether the party bringing the action has a real stake or a genuine
interest in its outcome; and whether the proposed suit is a reasonable and effective
means to bring the case to court (Downtown Eastside Sex Workers United Against

79

Ibid, paras. 38-39. Special Measures Order (Atlantic Travel Amendments), at Tab 16.

80

Fitzgerald Affidavit, at Tab 18, para. 3(c)(d).

 Page 45
Violence Society v. Canada (Attorney General), 2012 SCC 45). The three factors
do not amount to a checklist, but should be seen as interrelated considerations to be
weighed cumulatively, rather than individually, in a purposive, flexible and generous
manner. (Downtown Eastside, at para. 53). The onus is on the party seeking
standing, the CCLA in this instance, to establish that the three factors, applied in this
manner, favour the grant of standing.

[118] Limitations on standing are necessary to “ensure that courts do not become
hopelessly overburdened with marginal or redundant cases, to screen out the mere
“busybody” litigant, to ensure that courts have the benefit of contending points of
view of those most directly affected and to ensure that courts play their proper role
within our democratic system of government” (Downtown Eastside, at para. 1).

[119] At the root of the law on standing is a need to strike a balance “between
ensuring access to the courts and preserving judicial resources” (Downtown
Eastside, at para. 23, quoting with approval from Canadian Council of Churches v.
R. (1992), 1 S.C.R. 236, at p. 252).

Section 28(1)(h) of the PHPPA and the Travel Restriction

Does the Challenge Raise a Serious and Justiciable Issue?

[120] To constitute a serious issue the question must be a substantial constitutional
issue, or an important one. The claim must be far from frivolous (Downtown
Eastside, at para. 42).

[121] As it relates to s. 28(1)(h) of the PHPPA and travel restriction, the
Respondents accept that this proceeding raises issues that are both serious and
justiciable. I agree. There is the question of whether s. 28(1)(h) of the PHPPA is
within the legislative competence of the province. In addition, Ms. Taylor was
directly affected by the application of this provision, as well as the travel restriction
issued pursuant to it, and has stepped forward claiming that her Charter rights were

 Page 46
infringed when she was denied entry into this province on 8 May 2020. The facts
underpinning Ms. Taylor’s request to travel are detailed in her affidavit and are not
contested.

Does the CCLA Have a Real Stake or Genuine Interest in the Outcome?

[122] The CCLA points to its long history of interventions and litigation before
Canadian courts in all manner of civil liberties cases, as well as its ongoing work
during the COVID-19 pandemic, as demonstrating its genuine interest in the issues
before the Court. Its history of involvement in such matters is detailed in the
affidavit of Cara Faith Zwibel summarized, above.

[123] The Respondents argue that to have a “genuine interest” the CCLA must show
that it is directly impacted by the outcome of the proceeding. According to the
Respondents, it is not enough to say that the public interest litigant is “truly
concerned” about the matters raised. If this were the standard the CCLA would have
the right to commence an action anywhere in Canada, at any time, as long as it
involved civil liberties and Charter rights.

[124] To illustrate this point, the Respondents observe that the CCLA is
distinguishable from the organization granted standing in Downtown Eastside. That
organization was run “by and for” current and former sex trade workers living in the
Vancouver Downtown Eastside, and its objective included improving working
conditions for female sex workers who lived and/or worked in the neighbourhood.
Presumably, those running the organization would have had the right to bring the
action themselves, as persons directly affected. The Respondents argue that the
CCLA, on the other hand, has no such direct connection, nor for that matter even a
connection to this province.

[125] In support of their position the Respondents also refer to the decision of the
Saskatchewan Court of Queen’s Bench in Shiell v. Amok (1987), 27 Admin. L.R. 1,
1987 CarswellSask 56 (Q.B.), in which it was alleged that the Minister of
Environment was in breach of the Environmental Assessment Act, S.S. 1979-80, c.

 Page 47
E-10.1. The Respondents rely, in particular, on the following statement by Justice
Barclay (at para. 22):
22.

I am satisfied that the plaintiff does not have a direct, personal interest in
the alleged improper granting of the ministerial approval under s. 16 of the
Environmental Assessment Act. If it were sufficient for the plaintiff to be
interested in the sense that she is concerned about the environment and
environmental issues then it is difficult to conceive of cases where this
criteria would not be met. In my respectful view, to be afforded standing
the plaintiff must be affected in the sense that the issue has some direct
impact on her. This is clearly distinguishable from the Finlay case in which
the respondent had a direct personal interest in the issue as deductions were
being made from his cheques.
[emphasis added]

[126] Like the plaintiff in Shiell, the Respondents argue that while the CCLA may
be concerned about the issues raised, this concern is not such as to amount to a direct
interest.

[127] The CCLA responds by characterizing the Respondents’ approach as
“outdated”, “rigid and stingy”.81 The CCLA observes that Shiell is a 1987 decision
of the Saskatchewan Court of Queen’s Bench, predating the Supreme Court of
Canada’s decision in Downtown Eastside and other precedents of that Court. 82

[128] I do not interpret Shiell to mean that where a constitutional challenge is
pursued the protagonist must have a direct personal interest in the outcome. Such a
proposition is to cast the net too narrowly. First of all, Shiell was not a constitutional
case but in reality a public nuisance action by a private individual against a mining
company. Justice Barclay observed that “[p]ublic interest standing should not be
conferred to enable a party to sue a private individual or corporation” (at para. 19).
Second, in Downtown Eastside the Court reiterated the need to screen out the “mere
busybody” and determine whether “the plaintiff has a real state in the proceedings
81

Second Applicants Reply Brief, at para. 3.

82

See for e.g. Canadian Council of Churches v. Canada.

 Page 48
or is engaged with the issues they raise” [emphasis added] (Downtown Eastside, at
para. 43).

[129] In Canadian Council of Churches the Court held it was clear that the applicant
had a genuine interest as it enjoyed “the highest possible reputation and has
demonstrated a real and continuing interest in the problems of refugees and
immigrants” (at para. 39).

[130] Based upon the evidence of Ms. Zwiel, I am satisfied that the CCLA does not
seek to enter the fray as a “mere busybody”. Its interest in the Charter, and in the
measures taken by governments in response to COVID-19, is enough to convince
me that it has a real and continuing interest in the issues raised by Ms. Taylor in this
proceeding.

Is the Action by the CCLA a Reasonable and Effective Way to Bring the
Matter Before the Court?

[131] The third consideration is also to be applied purposively in light of the need
to ensure a full and complete adversarial presentation and to conserve judicial
resources (Downtown Eastside, at para. 49). It is not to be applied rigidly, but rather
from a practical and pragmatic point of view and in light of the particular nature of
the proposed challenge.

[132] As to whether the proposed suit is a reasonable and effective means to bring
the case to Court, the following considerations are relevant: the plaintiff’s capacity
to bring forward a claim; whether the case is of public interest in that it transcends
the interests of those most directly affected by the challenged law; whether there are
realistic alternative means which would favour a more efficient and effective use of
judicial resources; and the potential impact of the proceedings on the rights of others
who are equally or more directly affected (Downtown Eastside, at para. 51).

 Page 49
[133] With regard to these considerations the Respondents argue that insofar as Ms.
Taylor has standing as of right, and has retained counsel to challenge the travel
restriction, it would not be appropriate to grant the CCLA standing with respect to
this issue. According to the Respondents, the CCLA brings nothing new to the table
and its appearance therefore amounts to a duplication of effort.

[134] The Respondents further point to Canadian Council of Churches, wherein the
court found that individual claimants for refugee status who had a right to challenge
the legislation had, in fact, done so. As such, the legislation was not immunized
from challenge and the very rationale for the public interest litigation disappeared
(Canadian Council of Churches, at para. 42). The Respondents observe that in
Downtown Eastside the Court stated the “[a]all of the other relevant considerations
being equal, a plaintiff with standing as of right will generally be preferred” (at para.
37).

[135] The submission of the Respondents thus focuses sharply on one of the
considerations in deciding whether the participation of the CCLA is a reasonable
and effective way to bring the matter before the court, that of judicial economy. The
Respondents suggest that by denying the CCLA standing there will be a saving of
judicial resources.

[136] In response, the CCLA argues that as a result of its expertise, special
knowledge and perspective regarding constitutional rights, it is uniquely positioned
to supplement, rather than duplicate the efforts of Ms. Taylor. Both counsel for the
CCLA and Ms. Taylor offered that they had agreed to share cross-examination of
the Respondents’ witnesses, so that there would be no duplication of that effort, at
least.

[137] Furthermore, the CCLA maintains that it has the resources and capacity to
bring the claim forward. Indeed, during submissions counsel for the CCLA frankly
acknowledged that it was financially supporting Ms. Taylor’s claim.

 Page 50
[138] Finally, it is accepted by all parties that the issues at play transcend the
personal interests of Ms. Taylor.

Conclusion Regarding Section 28(1)(h) of the PHPPA and the Travel
Restriction

[139] I do not regard the fact that Ms. Taylor has initiated an action on her own as
dispositive of the grant of public interest standing to the CCLA. Unlike Canadian
Council of Churches, the CCLA does not seek to go it alone in challenging s.
28(1)(h) of the PHPPA and the travel restriction, but rather to join forces with Ms.
Taylor in the effort. There is a robust factual record upon which to do so.

[140] After cumulatively considering the three factors in light of the guidance
provided in Downtown Eastside, I am of the view that the CCLA ought to be granted
public interest standing with regard to the issues raised by Ms. Taylor. The questions
asked with respect to s. 28(1)(h) of the PHPPA and the travel restriction are both
serious and justiciable. The CCLA does not present to the Court as a mere busybody,
but rather as an organization with considerable expertise and experience in
constitutional matters. This expertise is not transitory, but rooted in the CCLA’s
creation 25 years ago. As a public interest litigant the CCLA has the ability to bring
this experience to bear on the issues raised in this application.

[141] While some duplication is inevitable, the issues raised in relation to the travel
restriction and the implications of this Court’s ruling extend beyond Ms. Taylor.
The Court will benefit from the perspective and input of the CCLA and I would not
be prepared to sacrifice its participation on the altar of judicial economy. A “full
and complete adversarial presentation” is more likely to be the result (Downtown
Eastside, at para. 49).

[142] The CCLA also is therefore granted public interest standing to join with Ms.
Taylor in challenging s. 28(1)(h) of the PHPPA and the travel restriction.

 Page 51
Sections 28.1 and 50(1) of the PHPPA

[143] The CCLA also seeks public interest standing to challenge s. 28.1 of the
PHPPA as contrary to ss. 7 and 9 of the Charter, and to challenge s. 50(1) of the
PHPPA as contrary to s. 8 of the Charter. With respect to this challenge the CCLA
is on its own, as Ms. Taylor was not directly impacted by either of these provisions
and, as such, does not challenge their constitutionality.

Does the Challenge Raise a Serious and Justiciable Issue?

[144] In constitutional litigation there is a distinction between “adjudicative facts”
and “legislative facts”. Adjudicative facts are those which concern the immediate
parties and must be proven by admissible evidence. Legislative facts are of a more
general nature and are those which establish the background of legislation, including
its “social, economic and cultural context” (Danson v. Ontario (Attorney General),
[1990] 2 S.C.R. 1086, at paras. 27-28). Such facts are subject to less stringent
admissibility requirements.

[145] Simply stated, the CCLA is denied public interest standing to challenge ss.
28.1 and 50(1) of the PHPPA as the challenge is not justiciable on the record before
the Court. Except in rare circumstances adjudicative facts matter and here there are
no facts.

[146] To date the enforcement measures provided for in s. 28.1 of the PHPPA have
not been utilized. Rather, those who have been asked to leave the province have
done so voluntarily. Indeed, in some instances the province has paid for
accommodations, or return transportation83. In addition, there is no evidence of the
use of the investigative powers in s. 50(1) of the PHPPA.

83

Norman Affidavit, at paras. 9-10.

 Page 52
[147] As such, there are no adjudicative facts upon which to ground a Charter
challenge to the effect of these provisions. The best we have are hypothetical
scenarios of how these powers might, or might not be utilized in the future, and in
this case hypotheticals are not helpful.

[148] In the instant case, as with most Charter cases, the effect of the legislation
upon Charter rights is not self-evident. Without a factual basis there is no yardstick
against which to measure government conduct in the exercise of the authority
granted to the police or inspectors. It follows that there is also no means by which
to assess a s. 1 Charter response by the Respondents.84

[149] The following cases are illustrative of the need for adjudicative facts.

[150] In Mackay et al. v. Manitoba et al, [1989] 2 S.C.R. 357, the appellants
challenged the constitutionality of certain provisions of the Elections Finances Act,
S.M. 1982-83-84, c. 45, which provided for payment out of the Consolidated Fund
of the province of Manitoba. The payment was to cover a portion of the campaign
expenses for those parties and candidates who received more than 10 percent of the
votes cast in an electoral division.

[151] The appellants argued that the provision of funding for political parties with
taxpayers’ dollars constituted a violation of their right to freedom of expression, as
guaranteed by s. 2(b) of the Charter. The trial judge held there was no infringement
and the majority of the Court of Appeal was of the same view. The minority agreed
that there was an infringement of s. 2(b) of the Charter, which was not saved under
s.1.

[152] The appellants expressed two particular concerns. First, that splinter groups
such as the Neo-Nazis might qualify for public funding, even though they espoused

84

Charter rights are not absolute, such that their infringement may on occasion be justified providing the criteria in s.
1 of the Charter is met.

 Page 53
values inimical to a democratic society. Second, that the system of funding favoured
the three established political parties to the detriment of all others.

[153] Justice Cory, for a unanimous Court, observed that “not one particle” of
evidence was put before the Court in support of the appellants’ submissions, just
unsubstantiated submissions without a factual foundation (at para.12).

[154] With regard to Charter decisions generally, Justice Cory stated (at para. 9):
9.

Charter decisions should not and must not be made in a factual vacuum. To
attempt to do so would trivialize the Charter and inevitably result in illconsidered opinions. The presentation of facts is not, as stated by the
respondent, a mere technicality; rather, it is essential to a proper
consideration of Charter issues. A respondent cannot, by simply consenting
to dispense with the factual background, require or expect a court to deal
with an issue such as this in a factual void. Charter decisions cannot be
based upon the unsupported hypotheses of enthusiastic counsel.
[emphasis added]

[155] And (at para 20):
20.

A factual foundation is of fundamental importance on this appeal. It is not
the purpose of the legislation which is said to infringe the Charter but its
effects. If the deleterious effects are not established there can be no Charter
violation and no case has been made out. Thus the absence of a factual base
is not just a technicality that could be overlooked, but rather it is a flaw that
is fatal to the appellants' position.
[emphasis added]

[156] Justice Cory lamented that the respondents did not question the status of the
appellants to bring the action, and “as a result, this important issue was not
considered by the court and for the purpose of this appeal it is assumed that the
appellants had the requisite status to bring the action” [emphasis added] (at para. 6).

 Page 54
[157] Nor did the respondent government criticize the complete lack of any
evidentiary basis for the appellant’s claim. Rather, the respondent took the position
that it preferred to “have the case decided on the merits” and not defeated on the
“technical” basis that there was no factual foundation for the claim (at para. 6).
Justice Cory refused to have any part in the plan, irrespective of the respondent’s
desire to do so, concluding that the necessity for adjudicative facts is not something
that the parties can circumvent by agreement.

[158] In Danson, decided a year following Mackay, the Supreme Court of Canada
again addressed the question of “the appropriateness of seeking constitutional
declarations by way of application without alleging facts in support of the relief
claimed.” (Danson, at para. 1). An application was brought by Danson, a barrister
and solicitor and member of the Law Society of Upper Canada, challenging a rule
which provided for an assessment of costs against solicitors personally, on the
grounds that it was outside the authority of the provincial Legislature and violated
ss. 7 and 15 of the Charter. The application contained no supporting affidavit and
no facts were alleged. The question of standing was not an issue, as Danson, a
barrister and solicitor, was directly impacted (at least potentially) by the new costs
rule.

[159] Justice Sopinka observed, nevertheless, that the Court “has been vigilant to
ensure that a proper factual foundation exists before measuring legislation against
the provision of the Charter, particularly where the effects of the impugned
legislation are the subject of the attack” (Danson, at para. 26). The Justice concluded
that it would be impossible for a motions judge to assess the merits of Danson’s
application without evidence of those effects, by way of adjudicative facts (i.e. actual
instances of the use or threatened use of the impugned rules).

[160] In Bedford v. Canada (Attorney General), 2013 SCC 72 three applicants, all
current or former prostitutes, brought an application seeking declarations that certain
provisions of the Criminal Code, R.S.C. 1985, c. C-46 purporting to govern how
prostitution is carried out are unconstitutional. The provisions concerned bawdry
houses, living off the avails of another’s prostitution and communicating for the
purpose of prostitution. In concluding that the impugned laws deprived prostitutes
of security of the person, the Supreme Court paid due deference to the trial judge’s

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finding on not only the adjudicative facts, but the social and legislative facts as well.
The evidence called in that case was substantial. As the Supreme Court observed
(at para. 54):
54.

The application judge arrived at her conclusions on the impact of the
impugned laws on s. 7 security interests on the basis of the personal
evidence of the applicants, the evidence of affiants and experts, and
documentary evidence in the form of studies, reports of expert panels and
Parliamentary records.

[161] In Downtown Eastside the respondents provided a “concrete factual
background”, which included affidavits from “more than 90 current or past sex
workers from the Downtown Eastside neighbourhood of Vancouver” (at para. 74).
The respondents were further supported by the Pivot Legal Society, a non-profit
legal advocacy group working in Vancouver’s Downtown Eastside, which
“conducted research on the subject, generated various reports and presented the
evidence it has gathered before government officials and committees” (Downtown
Eastside, at para. 74).

[162] In support of its advocacy as a public interest litigant the CCLA proffered the
recent decision of the Ontario Court of Appeal in Canadian Civil Liberties
Association v. Canada (Attorney General), 2019 ONCA 243. The CCLA
successfully challenged those provisions of the Corrections and Conditional Release
Act, S.C. 1992, c. 20 which authorized administrative segregation, as infringing the
Charter prohibition against cruel and unusual punishment. Further, it did so as the
sole public interest litigant. However, in that case the challenge was supported by a
robust evidentiary record; which included photographic evidence of the small prison
cell in question, affidavit evidence regarding the horrific effects of administrative
segregation, expert testimony from a professor of human rights law, and evidence
from a professor of sociology and a psychologist.

[163] By way of contrast, in the case before me there is not a scintilla of evidence
in support of the assertion that the deleterious effects of ss. 28.1 and 50(1) of the
PHPPA are such as to violate the Charter.

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[164] In response, the CCLA relies upon the comments of Chief Justice McLachlin,
in R. v. Nur, 2015 SCC 15 as conclusive of its position. Nur involved the question
of whether mandatory minimum sentences for various firearms offences violated s.
12 of the Charter. Nur accepted that his rights were not infringed, but argued that it
was reasonably foreseeable that the application of the law on other hypothetical
offenders might violate the s. 12 Charter prohibition against “cruel and unusual
punishment.”

[165] Chief Justice McLachlin agreed, concluding that to limit consideration to the
offender runs contrary to the jurisprudence of the Court relating to Charter review
generally and to s. 12 of the Charter in particular.

[166] The Chief Justice wrote (at para. 51):
51.

… If the only way to challenge an unconstitutional law were on the basis of
the precise facts before the court, bad laws might remain on the books
indefinitely. This violates the rule of law. No one should be subjected to an
unconstitutional law: Big M. at p. 313. This reflects the principle that the
constitution belongs to all citizens, who share a right to the constitutional
application of the laws of Canada.

[167] With regard to mandatory minimum sentences Chief Justice McLachlin stated
(at para. 63):
63.

Not only is looking at the law's impact on persons whom it is reasonably
foreseeable the law may catch workable — it is essential to effective
constitutional review. Refusing to consider reasonably foreseeable impacts
of an impugned law would dramatically curtail the reach of the Charter and
the ability of the courts to discharge their duty to scrutinize the
constitutionality of legislation and maintain the integrity of the
constitutional order. The protection of individuals' rights demands
constitutional review that looks not only to the situation of the offender
before the court, but beyond that to the reasonably foreseeable reach of the
law. Testing the law against reasonably foreseeable applications will
prevent people from suffering cruel and unusual punishment in the interim
until the mandatory minimum is found to be unconstitutional in a particular
case.

 Page 57
[168] Nur concerned the constitutionality of mandatory minimum sentences for, in
that case, certain firearms offences. Upon satisfying the elements of the offence the
minimum penalty was prescribed. So as to avoid a piecemeal approach to the
Charter and prevent the sword of Damocles from hanging over the head of those
facing charges in the future, the Court devised the test of reasonably foreseeable
applications of the law.

[169] I do not regard the remarks of the Chief Justice as standing for the proposition
that in Charter cases adjudicative facts no longer matter and such cases may
henceforth be decided based on a series of hypotheticals. Nur considered the test for
the constitutionality of a mandatory minimum sentence and must be considered in
that context. In that circumstance the deleterious effect of the statutory language is
known, namely the minimum sentence to be imposed. What remained for the Court
was a consideration of those circumstances where it might be called into service.

[170] That said, I accept that there are occasions like that in Nur, when the effect of
the legislation is known and adjudicative facts are not necessary. However, such
cases are exceptional.

[171] In Danson, Justice Sopinka acknowledged that there may be rare cases where
the question of constitutionality will present as a simple question of law alone. In
so doing, Justice Sopinka referred to the hypothetical example offered by Beetz, J.
in Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local
832, [1987] 1 S.C.R. 110, of a law purporting to impose the beliefs of a state religion.
Justice Sopinka observed that the constitutional purpose of this hypothetical law
would be obvious on its face and would require no extrinsic evidence to flesh it out
(at para. 32).
32.

The unconstitutional purpose of Beetz J.'s hypothetical law is found on the
face of the legislation, and requires no extraneous evidence to flesh it out.
It is obvious that this is not one of those exceptional cases. In general, any
Charter challenge based upon allegations of the unconstitutional effects of
impugned legislation must be accompanied by admissible evidence of the
alleged effects. In the absence of such evidence, the courts are left to
proceed in a vacuum, which, in constitutional cases as in nature, has always
been abhorred. …

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[172] As a further example, consider a hypothetical law in which a person receives
a mandatory life sentence for spitting on the sidewalk (see Bedford, at para. 120).
Such a law would undoubtedly attract Charter scrutiny without the necessity of
adjudicative facts, as the unconstitutional effect (i.e. life sentence) of the law is
apparent from its face. Such cases are rare, however, and this is not one of that
character.

[173] The CCLA also argues that the immediate question is whether it should be
granted standing. We are not here addressing an adjudication on the merits, and
standing should therefore be decided prior to and separate from a consideration of
whether a factual foundation is lacking.

[174] In responding to this argument I am mindful that the Court should not take a
deep dive into the merits. As Justice Cromwell stated in Downtown Eastside, in
deciding the question of standing “courts should not examine the merits of the case
in other than a preliminary manner” (at para. 42). In the present case, however, a
deep dive is not necessary, as we clearly find ourselves swimming in the shallow
end of the pool. The Court is not engaged in the weighing of evidence, simply
because there is no evidence. A preliminary examination is all that is called for.

[175] Consider, for example, the proposed challenge to s. 50(1) of the PHPPA on
the ground that it violates the s. 8 Charter prohibition against “unreasonable search
or seizure.”

[176] In order to invoke s. 8 the CCLA must first establish on the balance of
probabilities a reasonable expectation to privacy in the thing that was searched.
Whether the state action has interfered with a reasonable expectation of privacy is
to be determined based on the totality of the circumstances (R. v. Edwards, [1996] 1
S.C.R. 128). Factors which merit consideration may include “the accused's presence
at the time of the search, possession or control of the property or place searched,
ownership of the property or place, historical use of the property or item, ability to
regulate access, existence of a subjective expectation of privacy, and the objective
reasonableness of the expectation” (R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para.
31).

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[177] The CCLA acknowledges that whether or not a person has a right to privacy
in the premises, as defined, “may well be debatable depending on the
circumstances”85. However, this requirement is dwarfed by the “obvious
conclusion” that there was a privacy interest in the subject matter of the search.
Section 50(1) of the PHPPA includes materials fitting with “the biographical core
of personal information” as referenced by Chief Justice McLachlin in R. v. Marakah,
2017 SCC 59.

[178] With respect, this conclusion is anything but “obvious”, depending on the
circumstances. Even accepting as a starting point that some of the type of testing
contemplated in s. 50(1) engages the privacy of the person, there remains the
question of whether the search is reasonable. The onus is on the Crown, but without
a factual matrix how does it do so effectively. What search? What seizure?

[179] Section 50(1) gives inspectors the power to search, but what are the factual
circumstances against which this power is to be measured in this case? The question
is rhetorical, for there are none. Without such, the Court is left to shoot at a moving
target, limited only by the imagination of counsel. Furthermore, the party accused
of the Charter infringing conduct, the Respondents in this instance, are entitled to
know the case they must meet in both responding to the challenge and in deciding
whether or not to invoke the Charter s. 1 saving provision.

[180] Turning briefly to the CCLA’s proposed challenge to s. 28.1 of the PHPPA,
as contrary to s. 7 of the Charter.

[181] The onus is on the CCLA to establish that s. 28.1 operates to deprive liberty
and security of the person guaranteed by s.7 of the Charter and that such deprivation
is not consistent with the principles of fundamental justice.

85

Second Applicant’s Brief, at p. 35.

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[182] The approach to this question is individualistic, and the analysis is qualitative,
not quantitative, such that the question under s. 7 is whether “anyone’s life, liberty
or security of the person has been denied by a law that is inherently bad”. A grossly
disproportionate, overbroad, or arbitrary effect on one person is sufficient to
establish a breach of s. 7 (Bedford, at para. 123).

[183] Therefore, the threshold question is whether the impugned provision deprives
an individual of liberty and/or security of the person. If it does, the remaining
question is whether the deprivation is in accordance with the principles of
fundamental justice. There is no evidence before the Court, however, of the
unconstitutional effect on a single person, just possibilities.

[184] Turning next to the CCLA’s proposed challenge to s. 28.1 of the PHPPA on
the grounds of arbitrary detention or imprisonment, contrary to s. 9 of the Charter.

[185] Detention is a term that covers a broad range of encounters between the police
and citizens, but Charter rights are not engaged by delays that involve no
“significant physical or psychological restraint”(R. v. Mann, 2004 SCC 52, at para.
19).

[186] We start with a recognition that an investigative detention is not such as to
engage the Charter in the first place. However, accepting that s. 28.1 of the PHPPA
authorizes the police to detain persons, within the meaning of detention in s. 9 of the
Charter (see Mann), to date there is no evidence of a detention ever having occurred.

[187] Furthermore, a violation of s. 9 requires more than a detention. The detention
must be authorized by law and be neither unreasonable nor arbitrary (R. v Grant,
2009 SCC 32). That a detention is authorized by law is apparent from a reading of
s. 28.1, but in the absence of a factual foundation how is it to be determined that a
given exercise of that authority is either unreasonable or arbitrary. Again, the Court
is left to speculate on events that may, or may not, come to pass.

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[188] Section 28.1 of the PHPPA is an empowering provision and the police in the
exercise of that power may or may not run afoul of the Charter. The devil in the
details, depending on the factual matrix in each case.

[189] In Canadian Council of Churches the Council sought the validity of the
amended Immigration Act 1976, S.C. 1976-77, c.52, as am. by S.C. 1988, c. 35 and
36 as contrary to the Charter. Justice Cory observed that the “issues of standing and
of whether there is a reasonable cause of action are closely related and indeed tend
to merge” (at para. 38). While some aspects of the Statement of Claim raised a
serious issue as to the validity of the legislation, some allegations were so
hypothetical in nature “that it would be impossible for any court to make a
determination with regard to them” (at para. 38). In contrast, refugee claimants were
bringing forward claims akin to those bought by the Council on a daily basis, where
“each case presented a clear concrete factual background upon which the decision
of the court could be based” (at para. 40).

[190] The case Canadian Civil Liberties Assn. v. Canada (Attorney General), 1998
CarswellOnt 2808, 111 O.A.C. 51 is instructive and in keeping with the caution of
Justice Cromwell, to the effect that a preliminary examination of the merits is all that
is called for in deciding whether or not to grant standing (Downtown Eastside, at
para. 42).

[191] In Canadian Civil Liberties the Association brought an application for a
declaration that certain provisions of the Canadian Security Intelligence Services
Act, R.S.C. 1985, c. C-23 (CSIS) were contrary to ss. 2(b) to 2(d), 7 and 8 of the
Charter. The motions judge granted public interest standing on the basis that the
challenge was a serious issue to advocacy groups and citizens at large and there was
no better way for the issues to be litigated. The trial judge then proceeded to dismiss
the challenge on its merits. The Association appealed and the Attorney General
cross-appealed on the issue of the Association’s standing.

[192] At issue was the adequacy of the factual record (the adjudicative facts)
grounding the Association’s challenge and whether this was relevant to a

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consideration of standing, or was a matter left to be decided after standing had been
adjudicated.

[193] A majority of the Court quoted with approval from the Supreme Court of
Canada’s decisions in Mackay, Danson and Hy & Zel's Inc. v. Ontario (Attorney
General), [1993] 3 S.C.R. 675, in support of the proposition that Charter decisions
should not and must not be made in a factual vacuum. In Hy & Zel’s Inc., Justice
Major, writing for the majority, observed that the applicants “presented almost no
original evidence in support of that claim” (at 692).

[194] Justice Charron observed that the issue of public interest standing was not in
issue in either Mackay or Danson, as in both cases the claimants alleged that their
own rights were violated.

[195] However, when it comes to public interest litigants Justice Charron concluded
(at paras. 28-29):
28.

I would agree with L'Heureux-Dubé J. that the issue of sufficiency of the
evidence is entirely separate from the question of standing for those litigants
who have a cause of action under the traditional rules, a situation which she
was of the view existed in Hy & Zel's. These litigants have standing as of
right. They do not depend on a discretionary grant of standing to pursue
their claim. Any screening of unmeritorious claims which may be made
under the rules of procedure on the ground of a lack of a proper evidentiary
basis will not likely be related to any issue of standing.

29.

However, where a litigant does not have a cause of action under the
traditional rules and requires a discretionary grant of public interest standing
to pursue its claim, the concerns identified above have to be addressed and
these concerns, as held by the majority in Hy & Zel's, include a
consideration of the sufficiency of the evidence. More will be said later on
what constitutes a sufficient evidentiary basis for this purpose.

[196] While there was an evidentiary record in Canadian Civil Liberties, Justice
Charron concluded that it was not such as to raise a justiciable issue, and that the
standing of the Association ought to have been denied.

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[197] In her dissent, Justice Abella would have granted the Association standing, as
in her view the information contained in its supporting affidavits raised “serious
questions” about the constitutionality of the impugned provisions of the CSIS Act.

[198] For Justice Abella the issue was not whether a factual context was necessary,
but the adequacy of that context based on the evidence presented. She stated (at para.
98):
98.

It would be a significant diminution of access to public interest standing to
so merge the question of standing and the merits, that a preliminary
conclusion about the merits determines whether the case should be heard at
all. There must certainly be enough evidence to justify the conclusion that
the issue is an arguable one and serious enough to warrant judicial scrutiny
(Energy Probe v. Canada (Attorney General) (1989), 68 O.R. (2d) 449
(Ont. C.A.)). But I would resist an approach that appears to require that
there should be enough evidence to demonstrate the likelihood of success.
[emphasis added]

[199] Both the majority and dissenting judgments in Canadian Civil Liberties thus
support the position adopted in this case, to the effect that the absence of a factual
record is relevant and potentially fatal to the question of standing.

Does the CCLA Have a Real Stake or Genuine Interest in the Outcome?

[200] My findings, above, with respect to the CCLA apply with equal force to its
proposed challenge to ss. 28.1 and 50(1) of the PHPPA, and I would not deny it
standing on the grounds of not having a genuine interest in the issues raised.

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Is the Action by the CCLA a Reasonable and Effective way to bring the Matter
before the Court?

[201] I observe that the necessity for a factual foundation is a common theme in
whether the action is a reasonable and effective way of bringing the matter before
the Court.

[202] In assessing whether a particular means of bringing a matter to court is
“reasonable and effective” the Court is to take a purposive and flexible approach in
determining whether the proposed action is an economical use of judicial resources,
whether permitting the action to proceed will uphold the principle of legality and
“whether the issues are presented in a context suitable for judicial determination in
an adversarial setting” (Downtown Eastside, at para. 50).

[203] In assessing the CCLA’s capacity to bring forward the claim the Court should
examine, amongst other things, the CCLA’s resources, expertise “and whether the
issue will be presented in a sufficient concrete and well developed factual setting”
(Downtown Eastside, at para. 51).

[204] The CCLA argues that it is an economical use of judicial resources to
challenge the enforcement provisions without waiting for individual rights to be
impacted. According to the CCLA it is “unrealistic” to expect a single individual to
mount a challenge of this nature on their own.

[205] This is essentially a rehash of its argument on whether the challenge is serious
and justiciable. Further, it is not clear to me why such a challenge is “unrealistic”.
The Charter jurisprudence is replete with examples of individuals who have sought
recourse to the Courts for a breach of their Charter rights, real or perceived. The
within proceeding by Ms. Taylor is a case in point.

[206] In assessing the potential impact on the proceedings on the rights of others not
before the court, Justice Cromwell quoted with approval from the court’s earlier

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ruling in Danson, for the proposition that the court should consider whether “the
failure of a diffuse challenge could prejudice subsequent challenges to the impugned
rules by parties with specific and factually established complaints” [emphasis added]
(Downtown Eastside, at para. 51).

[207] Furthermore, Justice Cromwell observed that while an accused in a criminal
case will always be able to raise a constitutional argument, this does not necessarily
mean that such a challenge is a more reasonable and effective way to bring the issue
to court. “The case of R. v. Blais, 2008 BCCA 389 illustrates this point. In that
case, the accused, a client, raised a constitutional challenge to the communication
provision without any evidentiary support” (Downtown Eastside, at para. 69). In the
result the court dismissed the constitutional claim without examining it in detail.

[208] In considering whether there was another more effective means of bringing
the mater before the Court, Justice Charron in Canadian Civil Liberties stated (at
para. 91):
91.

Further, the scant evidentiary basis in this case raises other concerns
referred to by L'Heureux-Dubé J. in Hy & Zel's. A comparison of the factual
basis in Atwal with the scant adjudicative facts alleged in this case confirms
that better use can usually be made of the judicial process to decide live
issues between parties as opposed to hypothetical ones. In Atwal, CSIS
involvement was clearly established. An actual warrant had been obtained
and executed pursuant to the Act. Clearly, the impugned provisions of the
Act were engaged. In this case, a mere suspicion was raised that CSIS was
involved. Many facts would have to be presumed before an intelligible
debate on the constitutionality of the section could be engaged in. The scant
evidentiary basis does not allow the issues to be fully canvassed.
[emphasis added]

Conclusion Regarding Sections 28.1 and 50(1) of the PHPPA

[209] The fact the challenge to the enforcement and investigative provisions is not
justiciable on the record before me is fatal to the CCLA’s request for standing.

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[210] That said, were I incorrect in this conclusion, I would nevertheless conclude,
weighing the factors in Downtown Eastside, that the challenge does not present as a
reasonable and effective way of bringing the matter to court.

Is SECTION 28(1)(h) OF THE PHPPA WITHIN THE LEGISLATIVE
COMPETENCE OF THE PROVINCE?

Introduction

[211] As s. 28(1)(h) of the PHPPA empowered the CMOH to impose the travel
restriction, the Applicants challenge starts at this point. The question is whether
this provision falls within the legislative authority of the province to enact.

[212] The answer lies in the Canadian Constitution86. The Applicants argue that s.
28(1)(h) of the PHPPA is not valid as it intrudes into federal jurisdiction over
interprovincial works and undertakings (s. 92(10)). Alternatively, they say that it
falls under federal authority over naturalization and aliens (s. 91(25)), or the federal
emergency power to make laws for the peace, order and good government of Canada
(s. 91). The Respondents maintain that it is a valid law falling under either provincial
authority over property and civil rights (s. 92(13)), or matters of a local and private
nature (s. 92(16)).

[213] There is a presumption of constitutionality, such that the Applicants, as the
parties challenging s. 28(1)(h), must establish that it does not fall within the
legislative authority of the province.

[214] This dispute is resolved by asking two questions. What is s. 28(1)(h) of the
PHPPA really about, its pith and substance? Having answered this question, into

86

Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.).

 Page 67
what head or heads of power under the Constitution Act, 1867 does it most naturally
fall (Reference re Firearms Act (Canada), 2000 SCC 31).

[215] For the reasons that follow, I conclude that the purpose of s. 28(1)(h), its pith
and substance, is the protection and promotion of the health of those in
Newfoundland and Labrador. It is a valid public health measure falling under the
province’s authority over matters of a local and private nature (s. 92(16)).
Alternatively, it is a valid measure falling under the province’s authority over
property and civil rights (s. 92(13)). Section 28(1)(h) of the PHPPA is thus a valid
law as falling within the legislative competence of the province.

The Essential Character of the Law

[216] We begin our inquiry with an examination of the true meaning, or essential
character of s. 28(1)(h). In other words, its core. To answer this question two aspects
of the law must be examined: the purpose of the provincial Legislature in enacting
s. 28(1)(h) and the legal effect of the law.

[217] The pith and substance analysis is not technical or formalistic (Ward v.
Canada (Attorney General), 2002 SCC 17, at para. 18). Rather, the approach is
more one of interpretation, as the Court considers not only the words used in the
impugned legislation, but also the background and circumstances surrounding its
enactment (Ward, at para. 18).

[218] Therefore, in ascertaining the law’s true purpose, resort may be had to both
intrinsic evidence, such as the legislation’s preamble and purpose clauses, as well as
extrinsic evidence, such as the legislative history, parliamentary debates and the like.
However, such extrinsic evidence must be relevant and reliable and not assigned
undue weight (Reference re Firearms Act, at para. 17). Purpose may also be
ascertained by identifying the “mischief” of the legislation, the problem the enacting
body sought to remedy.

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[219] In this case the challenge concerns a particular provision, s. 28(1)(h), which
forms part of a larger scheme. While the pith and substance analysis begins with the
impugned provision, the subject matter of the provision must be considered in the
context of the legislative scheme as a whole (Kitkatla Band v. British Columbia
(Minister of Small Business, Tourism & Culture), 2002 SCC 31). Its relationship to
that scheme, the PHPPA in this instance, may be an important consideration in
ascertaining its pith and substance (see Quebec (Attorney General) v. Canada
(Attorney General), 2015 SCC 14).

[220] Determining the legal effects of the law involves considering how it will
operate and how it will affect (impact the legal rights of) Canadians (Reference re
Firearms Act, para. 18). Whether or not the law will achieve its intended purpose,
its efficaciousness, is not relevant to the division of powers analysis. Legislation
cannot be challenged by proposing an alternate, allegedly better way of achieving its
objective (Ward, at para. 276). Rather, how the law sets out to achieve its purpose
enables the Court to better understand its “total meaning” (Reference re Firearms
Act, at para. 18).

[221] The effect of the law can be of assistance in revealing whether the law is
“colourable”. In other words, whether facially it appears to address something
within the legislature’s jurisdiction, but in substance reaches beyond that jurisdiction
(Ward, at para. 17).

The Purpose of Section 28(1)(h) of the PHPPA

[222] The PHPPA provides a mechanism for the declaration of a “public health
emergency”, defined as “an occurrence or imminent threat” that presents a “serious
risk to the health of the population” from, amongst other things, “a communicable
disease” (PHPPA, s. 2(y).)

[223] Two requirements must be met before the Minister may, upon the advice of
the CMOH, declare a public health emergency. The Minister must be satisfied that
the emergency meets the definition of a public health emergency, and the emergency

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must be such that it cannot be sufficiently mitigated or remedied without the
implementation of the special measures available under s. 28 of the PHPPA.

[224] It is beyond question that the COVID-19 pandemic qualifies as a public health
emergency. It is a novel communicable disease with no known cure, effective
treatment or vaccine, that can, and often does, cause severe illness or death.

[225] In responding to such an emergency the CMOH has been given a pivotal role,
without the requirement for further legislative oversight. This role is in keeping with
the independence, impartiality and qualifications of the CMOH and the powers and
duties of that office.

[226] By its very nature a public health emergency calls for a swift response by
those entrusted and qualified to react, in an independent and impartial manner
without political intervention. As the member for Conception Bay East-Bell Island
explained during the legislative debate on the PHPPA:
Again, we’re talking on a global issue and a global perspective in Newfoundland
and Labrador to be able to react in a very expedient manner to protect our society
before it gets to a point where there’s an outbreak of something that’s devastating,
and we’ve known we’ve had it.87

[227] The declaration of a public health emergency sets the stage for such a response
and the powers vested in the CMOH to impose special measures are thereby
unleashed. Such measures are “for the purpose of protecting the health of the
population and preventing, remedying or mitigating the effects of the public health
emergency” (PHPPA, s. 28(1)). The powers are broad, too broad the Applicants
argue in the case of s. 28(1)(h), but the purpose is clear, the protection and promotion
of the health of the population.

House of Assembly Proceedings, November 20, 2018, Vol. XLVIII No. 44 at p. 2624, Second Applicant’s Brief,
Volume 1, Tab 1.
87

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[228] These powers, which are to be exercised only in the case of a public health
emergency, are in alignment with the overall purpose of the PHPPA. Section 5 bears
repeating. It reads:
5.

The purpose of this Act is to
(a)

promote the health and well-being of individuals and communities;

(b)

protect individuals and communities from risks to the health of the
population;

(c)

prevent disease, injury and disability;

(d)

provide a healthy environment for individuals and communities;

(e)

provide measures for the early detection and management of risks
to the health of the population, including monitoring of a disease or
health condition of significance;

(f)

improve the health of the population and of vulnerable groups; and

(g)

promote health equity within the population by addressing the social
determinants of health.

[229] During the introduction of the PHPPA in the legislature the Minister had the
following to say with regard to this legislation and s. 28(1)(h) in particular:
I think we recently remembered in this House, during the commemoration and
honouring of those who served in the First World War, what gets forgotten is in the
immediate aftermath of all those soldiers coming home, the Spanish Flu of 1918
and ’19 infected half a billion people worldwide; 500 million people. At the time,
the population of the planet was maybe a fifth of what it is today. It had an appalling
effect on our population, and it wiped out Indigenous communities in Okak and
Hebron, up in the Big Land.
So large-scale, public pandemics, health emergencies still need to be recognized,
and Part VI of the bill does this. It talks about public health emergencies, and these
are situations where extraordinary or unusual measures are required. It’s time
limited, it’s subject to legislative mandatory review. There is an extension period
possible, and these powers really give the chief medical officer of health
considerable scope in acting promptly to protect populations.

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We can, under this legislation, under the regulations, we could authorize voluntary
mass immunization programs as a priority. We can divert resources to do that. We
could establish lists of individuals, or classes of individuals, to be given priority for
immunization. For example, health care providers, or for drugs or medical supplies
and equipment. We could make orders restricting travel. We can do some of this
already under older legislation, but, again, it’s not done in a way that’s
constitutionally sound.88

[230] Communicable diseases such as COVID-19 are precisely that, communicable.
They do not respect borders, provincial or otherwise. Unlike a local health
emergency such as that posed by a tainted water supply, for example, the threat
posed by COVID-19 is global in scope.

[231] In the words of the Minister, “We are living in a world with SARS and Ebola”
where you are “one plane flight away from a significant health problem and we need
legislation that can adapt and deal with that.”89

[232] It is in recognition of this reality that the CMOH has the authority to restrict
travel. The purpose of this provision is the protection of the health of those in
Newfoundland and Labrador. It is one of a number of tools in the arsenal of the
CMOH directed to this end.

The Legal Effect of Section 28(1)(h) of the PHPPA

[233] What of the effect of s. 28(1)(h), its impact on the legal rights of those wishing
to travel to the province? In the case of Ms. Taylor the immediate impact is clear.

House of Assembly Proceedings, 20 November 2018, Vol. XLVIII No. 44, at p. 2620, Second Applicant’s Brief,
Vol. 1, Tab 1.
88

89

Ibid, at p. 2,616.

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The travel restriction issued under the authority of s. 28(1)(h) had the effect of
denying Ms. Taylor access to the province (at least initially) for her mother’s funeral.

[234] Facially, the effect of s. 28(1)(h) appears obvious, as merely a restatement of
the language used. It gives the CMOH the authority to restrict or deny entirely the
ability of persons to enter Newfoundland and Labrador.

[235] Scratch just below the surface, however, and it is apparent that the roots of s.
28(1)(h) run deeper. Its broader effect includes a reduction in the spread of
communicable diseases, in this case COVID-19. Viewed from this perspective, the
effect of s. 28(1)(h) reaches well beyond those immediately impacted, such as Ms.
Taylor, to include all others in the province who might otherwise run afoul of the
virus.

[236] The Supreme Court of Canada decision in Ward provides a useful comparator.
In Ward, the Court addressed whether a federal regulation prohibiting the sale of
young hooded and harp seals fell under the federal authority to legislate in relation
to the sea coast and inland fisheries (or criminal law), or whether it fell under
provincial power over property and civil rights.

[237] On its face a regulation prohibiting sale is suggestive of a provincial head of
power over property. However, the analysis did not end at that point. The Court
sought out the purpose of the regulation, its effect and how it fit within the regulatory
scheme as a whole. The question being not whether the regulations prohibit the sale,
but why it is prohibited (Ward, at para. 19). Following a review of the regulations
as a whole, and the legislative history, the Court concluded that the “mischief”
Parliament sought to remedy was the large scale commercial hunting of whitecoats
and bluebacks, in order to preserve the economic viability of the fishery in general.
Parliament’s objective in the prohibition on sale was the elimination of the
commercial hunting of these mammals (Ward, at para. 24.)

[238] With regard to the effect of the regulation in Ward, to argue that because it
prohibited sale it must in pith and substance be concerned with the regulation of sale,

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was to confuse the purpose of the regulation with the means used to carry out that
purpose (Ward, at para. 25).

[239] On its surface, s. 28(1)(h) of the PHPPA empowers the CMOH to restrict
interprovincial travel, just as in Ward the impugned regulation might be seen as a
prohibition on sale. The question, however, is not whether s. 28(1)(h) restricts travel,
but why does it do so?

[240] As was the case in Ward, to say that because s. 28(1)(h) restricts travel it must
be pith and substance concerned with the regulation of travel, is to confuse the
purpose of s. 28(1)(h) with the means to carry out that purpose. At its core,
s. 28(1)(h) is directed toward the health of those in the province. The “mischief” the
legislature sought to address by empowering the CMOH to restrict travel included
the spread of a communicable disease. In this sense the effect of s. 28(1)(h) is felt
well beyond those directly impacted by the travel restriction, such as Ms. Taylor.

[241] For the foregoing reasons, I thus conclude that the purpose of s. 28(1)(h) of
the PHPPA, its pith and substance, is the protection and promotion of the health of
those in Newfoundland and Labrador. At its core it is a public health measure.

The Applicant’s Submission
Interprovincial Undertakings

[242] It follows that the Applicants’ argument that the purpose of s. 28(1)(h) is to
restrict interprovincial travel, thus intruding into federal authority over
interprovincial works and undertakings must be rejected.

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[243] Federal authority in this area is grounded in the exclusion of interprovincial
works and undertakings from provincial power over works and undertakings within
the province under s. 92(10) of the Constitution Act, 1867.90

[244] “Works” are the physical infrastructure in support of transport; ships,
railways, and in a more modern context, planes. An “undertaking” is not a physical
thing, but an arrangement under which physical things are used. “It is the business
performing the interprovincial operations (i.e. the interprovincial transportation) that
is subject to federal jurisdiction” (Consolidated Fastfrate Inc. v. Western Canada
Council of Teamsters, 2009 SCC 53, at para. 80).

[245] Section 28(1)(h) empowers the CMOH to restrict the entry of individuals into
the province. It does not purport to govern the physical infrastructure in support of
interprovincial travel. Nor does s. 28(1)(h) empower the CMOH to regulate the
business of interprovincial travel activities. The CMOH cannot prohibit a ferry from
docking, or a plane from landing.

[246] However, it does not follow that the operation of s. 28(1)(h) cannot have some
effect on the business of interprovincial transportation. It is true that the CMOH
cannot stop a plane from landing, but an empty passenger jet is unlikely to take off
in the first place. I would therefore conclude that there is at least the potential for an
impact on federal undertakings, in the limited sense that less travel may translate
into a reduced demand for the service.

[247] However, any such effect is incidental to the purpose of s. 28(1)(h), which is
directed to public health, not interprovincial travel. Such an effect does not change
the essential character of s. 28(1)(h).

90

The exceptions from provincial authority fall within federal power by virtue of s. 91(29), which includes under
federal power those classes of subjects expressly exempt from provincial authority.

 Page 75
[248] That laws mainly in relation to the jurisdiction of one level of government
may overflow into, or have ‘incidental effects’ upon the jurisdiction of the other
level of government, is clear (Reference re Firearms Act, at para. 26). An incidental
effect is one that may be of significant practical importance, but is collateral and
secondary to the purpose of the law (see Canadian Western Bank v. Alberta, 2007
SCC 22, at para. 28).

[249] The recent Supreme Court of Canada decision in R. v. Comeau, 2018 SCC 15
is illustrative of this point.

[250] In Comeau, the Court addressed s. 121 of the Constitution Act, 1867 in the
context of a New Brunswick law restricting the quantity of liquor that could be
brought into the province from another province. Section 121 provides that:
All Articles of the Growth, Produce, or Manufacture of any one of the Provinces
shall, from and after the Union, be admitted free into each of the other Provinces.

[251] Mr. Comeau was arrested after returning to New Brunswick from Quebec
with a quantity of alcohol in excess of that permitted by s. 134(b) of the New
Brunswick Liquor Control Act, R.S.W.B. 1973, c. L-10. He argued that by virtue of
s. 121, the restriction was outside the authority of the New Brunswick legislature.

[252] After applying a purposive approach to s. 121, the Court concluded that it
served to prohibit laws that in essence and purpose restrict trade across provincial
boundaries. On the other hand, laws that are part of a broader scheme not aimed at
impeding trade, and as a result have only an incidental effect of restricting trade
across provincial boundaries, do not offend s. 121. This is because the purpose of
such laws is to support the relevant scheme and not to restrict interprovincial trade
(Comeau, at para. 106).

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[253] The Court held that (at para. 112):
Stand-alone laws that have the effect of restricting trade across provincial
boundaries will not violate s. 121 if their primary purpose is not to impede trade,
but some other purpose. Thus a law that prohibits liquor crossing a provincial
boundary for the primary purpose of protecting the health and welfare of the people
in the province would not violate s. 121.
[emphasis added]

[254] We are obviously not here concerned with the importation of liquor.
However, like the New Brunswick legislation, s. 28(1)(h) of the PHPPA is a law
restricting travel for the “primary purpose of protecting the health and welfare of the
people of the province” (Comeau, at para. 112).

[255] The within case may also be distinguished from the decision of the Judicial
Committee of the Privy Council in Ontario (Attorney General) v. Winner, 1954
CarswellNB 40, [1954] 2 W.L.R. 418 (P.C.), as relied upon by the Applicants.

[256] Mr. Winner, who resided in the United States, was in the business of operating
motor buses for the carriage of passengers and goods from Boston, through the State
of Maine and New Brunswick, to Glace Bay in Nova Scotia. He was granted a
license for this purpose by the New Brunswick Motor Carrier Board, but in
accordance with its terms was prohibited from taking up or setting down passengers
within New Brunswick while on route to Nova Scotia. Mr. Winner challenged this
restriction as being outside the authority of the province of New Brunswick.

[257] In striking down the law the Privy Council observed that the restriction did
not apply to all persons, but was a “particular provision aimed at preventing Mr.
Winner from competing with local transport companies in New Brunswick” (at para.
43). The impact of the law on Mr. Winner’s interprovincial undertaking was
therefore not incidental to its purpose. Rather, the pith and substance of the
Regulation amounted to an interference with an undertaking connecting province
and province, and, as such, was outside the authority of the province of New
Brunswick (at para. 47).

 Page 77
[258] Nor does s. 28(1)(h) of the PHPPA intrude on federal authority over
citizenship, as found the federal head of power over naturalization and aliens91.

[259] In Union Colliery Co. of British Columbia v. Bryden, 1899 CarswellBC13,
[1899] A.C. 580 (P.C.), the Judicial Committee of the Privy Council addressed the
validity of a British Columbia regulation which prohibited those of Chinese descent
from being employed in mines. The pith and substance of the regulation consisted
in establishing a statutory prohibition which affected aliens or naturalized subjects
and therefore entrenched on federal jurisdiction in that area.

[260] Unlike the circumstance in Bryden, s. 28(1)(h) of the PHPPA does not single
out a class of persons, whether they be Canadian citizens, permanent residents or
otherwise. It is a restriction on travel without regard to status and does not in its pith
and substance purport to regulate that status, or for that matter any rights inherent in
that status.

Does Section 28(1)(h) Relate to an Enumerated Head of Power Granted
to the Province by the Constitution Act, 1867

[261] Having determined that the pith and substance of s. 28(1)(h) is public health,
the next step is to determine whether it most naturally falls within the legislature of
the province, or the federal Parliament. At this point an examination of the heads of
power under ss. 91 and 92 of the Constitution Act, 1867 is required.

[262] The division of powers in the Constitution Act, 1867 has been described as
the “bedrock” of our federal system. Local diversity is preserved within a federal
nation by conferring broad powers on provincial legislatures, while at the same time
reserving for Parliament powers best exercised for the benefit of the country as a

91

s. 91(25) of the Constitution Act, 1867.

 Page 78
whole. This balance of power is such as to foster cooperation among governments
and legislatures for the common good (Consolidated Fastfrate Inc., at para. 29).

[263] In comparing the scope of federal and provincial powers, the Constitution
must be interpreted flexibly over time to meet new social, political and historical
realities (Ward, at para. 30). In addition, the principle of federalism must be
respected, wherein power is shared between two orders of government. “A federal
state depends for its very existence on a just and workable balance between the
central and provincial levels of government …” (Reference re Firearms Act, at para.
48). At the same time one level of government cannot usurp the functions of the
other.

[264] The Canadian Constitution assigns some matters exclusively to the federal
Parliament and others exclusively to the provincial legislatures. Then there are
matters where both levels of government have a role to play, depending on the
circumstance. Public health is a case in point.

[265] In express terms the matter of public health is neither attributed exclusively to
Parliament, or the provinces. The absence of a specific head of power dealing with
health is reflective of the fact that in 1867 the administration of public health was
still in a very primitive stage (Schneider v. British Columbia, [1982] 2 S.C.R. 112).
It is perhaps not surprising, then, that legislation dealing with health matters can be
found emanating from both levels of government. Justice Estey, (concurring in the
result) observed in Schneider, that health is “an amorphous topic, which can be
addressed by valid federal or provincial legislation, depending in the circumstances
of each case on the nature or scope of the health problem in question” (Schneider, at
para. 75).

[266] Rather, the closest we come to an express reference to health in the
Constitution Act, 1867 is ss. 92(7) and 91(11), neither of which captures s. 28(1)(h)
of the PHPPA.

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[267] Section 92(7) supports the physical infrastructure for provincial health care.
The province is given jurisdiction over “The Establishment, Maintenance and
Management of Hospitals, Asylums, Charities and Eleemosynary Institutes in and
for the Province, other than Marine Hospitals.”

[268] The Supreme Court of Canada decision in Fawcett v. Attorney General of
Canada, [1964] S.C.R. 625 is illustrative of the operation of s. 92(7). Provisions of
the Mental Hospitals Act, R.S.O. 1960, c. 236 which provided for the admission and
detention of mentally ill persons were in pith and substance matters falling within
the subject matter of s. 92(7), and not in relation to criminal power (at para. 16).

[269] Similarly, in Reference Re Intoxicated Persons Detention Act, 1980
CarswellMan 144, [1981] 1 W.W.R. 333, legislation which provided “sanctuary for
an intoxicated person until he can care for himself” (at para. 29) fell within
Manitoba’s s. 92(7) power.

[270] While not the majority view in Schneider, Justice Estey would have placed
British Columbia’s Heroin Treatment Act, R.S.B.C. 1979, c. 166 under s. 92(7), as
it provided for facilities and other means to treat a patient’s addiction (at para. 73).92

[271] There is an argument that the management of the COVID-19 pandemic is
related to the management of hospitals insofar as “flattening the curve” is directed
towards ensuring that hospitals, and intensive care beds, in particular, are not
overwhelmed. However, s. 28(1)(h) is not directed towards the physical facilities of
health care, as was the case in Fawcett and Reference Re Intoxicated Persons
Detention Act. Further, such an interpretation is to stretch the term “management”
beyond its intended scope, when considered in relation to its cohorts “establishment
and maintenance.”

92

Justice Estey would have also grounded the Heroin Treatment Act in provincial authority under ss. 92(13) and
92(16) of the Constitution Act, 1867 (at para. 74).

 Page 80
[272] Section 91(11) gives the federal government exclusive authority in relation
to “Quarantine and the Establishment and Maintenance of Marine Hospitals.”

[273] The establishment and maintenance of marine hospitals clearly does not
encompass s. 28(1)(h) of the PHPPA. However, s. 91(11) also gives the federal
government exclusive jurisdiction over quarantine. To this end the federal
government has passed the Quarantine Act, S.C. 2004, c. 20.

[274] The Quarantine Act bears the long title “An Act to prevent the introduction
and spread of communicable diseases.” Pursuant to s. 4 its purpose is “to protect
public health by taking comprehensive measures to prevent the introduction and
spread of communicable diseases.” A communicable disease means “a human
disease that is caused by an infectious agent … and poses a risk of significant harm
to public health, or a disease listed in the schedule …” (s. 2). COVID-19 coronavirus
disease (Maladie à coronavirus COVID-19) is one such disease listed in the
Schedule.

[275] The Quarantine Act applies to a “traveler”, defined as a person, or the operator
of a means of transportation (e.g. watercraft, aircraft, train, motor vehicle, trailer,
cargo carrier, etc.) who arrives in Canada, or is in the process of departing from
Canada (s. 2). In other words, international travel. As it relates to travel across
Canada’s national border, the Quarantine Act contains broad measures to control the
spread of communicable disease, including the ability to close the border entirely. I
am prepared to take judicial notice of the fact that the federal government has used
the emergency power in s. 58 of the Quarantine Act in response to the COVID-19
pandemic.

[276] Those entering Newfoundland and Labrador may do so from elsewhere in
Canada, or from outside Canada by sea or air. Section 28(1)(h) of the PHPPA does
not specify the point(s) of origin, but Ms. Taylor sought to travel within Canada
across provincial boundaries. As such the Quarantine Act is not engaged on the
facts before me.

 Page 81
[277] The question of paramountcy therefore does not arise in connection with the
federal power over quarantine. The Quarantine Act and s. 28(1)(h) of the PHPPA
can live together and operate concurrently, at least with regard to the regulation of
domestic travel, and it is with domestic travel that we are here concerned. On the
facts of this case, the two are not operationally incompatible in the sense that
compliance with one necessitates a breach of the other. It may well be the case that
the Quarantine Act displaces s. 28(1)(h) of the PHPPA where international travel is
concerned, but that is not an issue for me to decide.

[278] Having eliminated provincial control over health care infrastructure, and
federal control over quarantine as possible contenders, as it relates to public health
the heads of power left competing for attention are the provincial heads of power
over property and civil rights, s. 92(13), and matters of a local and private nature, s.
92(16). On the federal side is the emergency power of the federal government to
make laws for the peace, order and good government of Canada, in relation to those
matters not assigned exclusively to the provinces (s. 91).

[279] As noted, the Constitution Act, 1867 does not expressly assign public health
to either level of government. That said, over 100 years ago, in 1886, the Quebec
Court of Appeal in the case of Rinfret v. Pope, (1886) 10 L.N. 74, 12 Q.L.R. 303
(Que. C.A.) held that with the exception of federal jurisdiction over quarantine and
marine hospitals, all matters of public health fall within the control of the provinces.
The constitutional question raised in that case was “whether the legislation
respecting the health of the people of Canada, generally, is a subject for local or for
federal legislation (Rinfret, at p. 74).

[280] In Rinfret, the majority of the Court held that the federal Quarantine and
Public Health Act was outside the authority of the federal government, insofar as it
purported to repeal a Quebec law regarding public health.

[281] More recently, in Schneider Justice Dickson observed that the absence of a
specific head of power for public health was the subject of comment by the RowellSirois Commission (at para. 59):

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59.

The Report of the Royal Commission on Dominion-Provincial Relations
(the "Rowell-Sirois Commission") Book II, "Recommendations", in 1940
commented on this absence of a specific head of power dealing with the
administration of public health [pp. 32-33]:
In 1867 the administration of public health was still in a very
primitive stage, the assumption being that health was a private
matter and state assistance to protect or improve the health of the
citizen was highly exceptional and tolerable only in emergencies
such as epidemics, or for purposes of ensuring elementary sanitation
in urban communities. Such public health activities as the state did
undertake were almost wholly a function of local and municipal
governments. It is not strange, therefore, that the British North
America Act does not expressly allocate jurisdiction in public
health, except that marine hospitals and quarantine (presumably ship
quarantine) were assigned to the Dominion, while the province was
given jurisdiction over other hospitals, asylums, charities and
eleemosynary institutions. But the province was assigned
jurisdiction over "generally all matters of a merely local or private
nature in the Province", and it is probable that this power was
deemed to cover health matters, while the power over "municipal
institutions" provided a convenient means for dealing with such
matters.
…

[282] Justice Dickson, J. proceeded to conclude (at para. 60):
60.

This view that the general jurisdiction over health matters is provincial
(allowing for a limited federal jurisdiction either ancillary to the express
heads of power in s. 91 or the emergency power under peace, order and
good government) has prevailed and is now not seriously questioned: see
Rinfret v. Pope (1886), 12 Q.L.R. 303, 10 L.N. 74 (Que. C.A.); Re Bowack,
supra; and Labatt Breweries of Can. Ltd. v. A.G. Can., [1980] 1 S.C.R. 914,
9 B.L.R. 181, 52 C.C.C. (2d) 433, 110 D.L.R. (3d) 594, 30 N.R. 496, per
Estey J.

[283] At issue in Schneider was British Columbia’s Heroin Treatment Act. That
Act, which provided a comprehensive program for the evaluation, treatment and
rehabilitation of narcotic dependent persons, including detention and compulsory
treatment, was held by the Court to fall within general provincial competence over
health matters under s. 92(16). The compulsory aspects of the Act were incidental

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to its dominant characteristic, being the treatment of narcotic addiction. The
legislature was endeavouring to cure a medical condition, not punish a criminal
activity (Schneider, at para. 63).

[284] The decisions in Rinfret and Schneider thus lend strong support for the
inclusion of s. 28(1)(h) of the PHPPA under the province’s authority to legislate
with respect to matters of a local and private nature (s. 92(16)).

[285] In response, the CCLA accepts that the PHPPA is valid provincial legislation
aimed at public health, but argues that a travel ban during a pandemic is of national
concern. As such, any restriction on interprovincial mobility, even in the context of
public health protection, is a matter falling within the “federal heads of power set
out in s. 91 of the Constitution Act, 1867”93. While the CCLA does not specify the
federal head of power engaged under s. 91, I interpret this as a suggestion that the
federal government might restrict interprovincial travel in the name of public health
(subject to the Charter), but the province may not do so.

[286] The CCLA points out that in Schneider Justice Dickson allowed for a limited
federal jurisdiction over health, either ancillary to the express heads of power in s.
91, or the emergency power under peace, order and good government (at para. 60).

[287] I agree that under the right circumstances Parliament may indeed make laws
in relation to health for the peace, order and good government of Canada (see Labatt
Breweries v. Canada (Attorney General), [1980] 1 S.C.R. 914). Such laws may arise
where the subject matter of the legislation transcends local or provincial concern or
interests and from its inherent nature be of concern to the country as a whole
(Reference re Canada Temperance Act, [1946] A.C. 193, 1946 CarswellOnt 100
(P.C.). By way of example, an “epidemic of pestilence” may qualify as such a

93

Brief of the Second Applicant, at para. 58.

 Page 84
menace to the national life of Canada (Toronto Elec. Commrs. v. Snider, [1925] 1
W.W.R. 785, 1925 CarswellOnt 80 (P.C.) at p. 795).

[288] Accepting that under the right conditions the federal emergency power under
s. 91 might be used in response to a pandemic (an “epidemic of pestilence”), when
it comes to COVID-19 there are two problems with the Applicants’ argument.

[289] First, the Applicant’s position underestimates the complexity of the challenge
posed by this disease. At present there is no one size fits all solution for the
prevention and control of COVID-19. There is no magic bullet for its eradication.

[290] In the public health response to COVID-19 there is plenty of room for both
levels of government. Indeed, for the sake of the common good an effective public
health response demands the cooperative participation of each.

[291] To this end, amongst other measures, the federal government has used its
emergency quarantine power to limit international travel across Canada’s border and
to impose restrictions on those who enter.

[292] At the same time, the epidemiology of the disease is different in different areas
of the country. Local variations in geography94, population vulnerability, health care
capacity, resources (human and monetary) and COVID-19 prevalence in the
jurisdiction, as compared to other jurisdictions, have necessitated localized
responses to the control of the virus. The decision of this province to do so by
restricting the domestic travel of persons across its border is quintessentially a local
response to a local situation. Put another way, the challenge posed by COVID-19
has both a national and local dimension, and the localized dimension does not admit

94

Point of entry screening is feasible in provinces such as Newfoundland and Labrador where there are limited points
of entry. Less so in larger provinces with long borders and multiple access points.

 Page 85
of a national response. In responding to the pandemic the federal government cannot
be all things to all people.

[293] The second difficulty with the Applicants’ position stems from the fact that
the federal government has not attempted to regulate domestic travel. In Schneider
the conclusion that heroin treatment fell within the authority of the province came
with a qualification. The Chief Justice stated (at para. 1):
1.

… This conclusion must not be taken as excluding the Parliament of Canada
from legislating in relation to public health, viewed as directed to protection
of the national welfare. …

[294] However, as there was no preclusive or superseding federal legislation, the
Chief Justice found it unnecessary to come to a determination whether on the
proclamation of a federal law the Heroin Treatment Act would become inoperable.

[295] Similarly, in this case whether or not the federal government could exercise
its peace, order and good government powers to regulate interprovincial travel of
persons in the name of public health, and whether such powers could override the
provincial authority to do so, is not for me to decide. The federal government has
not attempted to enter the field, leaving it to the provinces and territories to devise
their own solutions, in response to local conditions and on the advice of their
respective health experts.

Conclusion with Respect to Section 28(1) of the PHPPA

[296] For the foregoing reasons, I conclude that s. 28(1)(h) of the PHPPA is within
the legislative competence of the province. In pith and substance it is a public health
measure which falls under provincial authority over matters of a local or private
nature under s. 92(16) of the Constitution Act, 1867. Any impact on interprovincial
undertakings or citizenship is incidental to its main purpose, namely protecting and

 Page 86
promoting the health of the province’s population, in this case from the spread of a
communicable disease. Section 28(1)(h) of the PHPPA is a valid law.

[297] Were I wrong in placing s. 28(1)(h) under the province’s s. 92(16) power, I
would make room for it under the province’s authority over property and civil rights
(s. 92(13).

DID THE TRAVEL RESTRICTION VIOLATE MS. TAYLOR’S RIGHT OF
MOBILITY AS GUARANTEED BY SECTION 6 OF THE CHARTER?

Introduction

[298] Section 6 of the Charter provides:
Mobility Rights
6.(1)

Every citizen of Canada has the right to enter, remain in and leave Canada.

(2)

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.

(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other than
those that discriminate among persons primarily on the basis of province of
present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualification
for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has
as its object the amelioration in a province of conditions of individuals in

 Page 87
that province who are socially or economically disadvantaged if the rate of
employment in that province is below the rate of employment in Canada.

[299] Ms. Taylor maintains that by denying her entry into the province her mobility
right as guaranteed by s. 6 of the Charter was infringed. She further argues that this
infringement cannot be justified under s. 1 of the Charter as a reasonable limitation
of her right. The CCLA picks up the cudgels in support of Ms. Taylor.

[300] The asserted right in question is not the right to earn a livelihood, or take up
residence in Newfoundland and Labrador. Ms. Taylor did not seek to travel to this
province for either of these reasons. Rather, her request was to attend her mother’s
funeral. The right thus claimed might be characterized as a simple right of mobility,
(a right simpliciter) to travel within Canada.

[301] For the reasons that follow, I conclude that the right to “remain in” Canada,
as embodied in s. 6(1) of the Charter, includes the right of Canadian citizens to travel
in Canada for lawful purposes across provincial and territorial boundaries.

[302] It follows that Ms. Taylor’s s. 6(1) Charter right to mobility was infringed
when she was denied entry to this province on 8 May 2020, in accordance with the
travel restriction. The infringement was fleeting, as eight days later Ms. Taylor was
granted an exemption, permitting her to travel.

Prior Court Decisions Addressing Mobility

[303] I begin with a review of some of the court decisions to date as it relates to
section 6 of the Charter.95 In doing so, I observe at the outset that I am unaware of
any decision which squarely addresses the nature of the mobility right claimed by

95

The list does not purport to be exhaustive, but rather inclusive of those decisions I have found to be of the greatest
assistance.

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Ms. Taylor. As Justice Estey astutely observed some 36 years ago: “Mobility Rights
has a common meaning until one attempts to seek its outer limits” (Skapinker v. Law
Society of Upper Canada, [1984] 1 S.C.R. 357, at page 13).

[304] The pre-Charter decisions which touch on mobility do so in the context of a
division of powers struggle between the federal and provincial levels of government.
With this caveat, I consider the decision of the Supreme Court of Canada in Ontario
(Attorney General) v. Winner 1951 CarswellNB 31, [1951] S.C.R. 887 of relevance,
insofar as the commentary of Justice Rand subsequently found favour with the
Supreme Court of Canada in its post Charter discussion of mobility rights.

[305] Of interest to the right of mobility Justice Rand stated: (at paras. 118-119):
118.

… a province cannot, by depriving a Canadian of the means of working,
force him to leave it: it cannot divest him of his right or capacity to remain
and to engage in work there: that capacity inhering as a constituent element
of his citizenship status is beyond nullification by provincial action. The
contrary view would involve the anomaly that although British Columbia
could not by mere prohibition deprive a naturalized foreigner of his means
of livelihood, it could do so to a native-born Canadian. He may, of course,
disable himself from exercising his capacity or he may be regulated in it by
valid provincial law in other aspects. But that attribute of citizenship lies
outside of those civil rights committed to the province, and is analogous to
the capacity of a Dominion corporation which the province cannot sterilize.

119.

It follows, a fortiori, that a province cannot prevent a Canadian from
entering it except, conceivably, in temporary circumstances, for some local
reason as, for example, health. With such a prohibitory power, the country
could be converted into a number of enclaves and the "union" which the
original provinces sought and obtained disrupted. In a like position is a
subject of a friendly foreign country; for practical purposes he enjoys all the
rights of the citizen.

[306] The Judicial Committee of the Privy Council did not subsequently see fit to
wade in on Justice Rand’s commentary regarding citizenship (Ontario (Attorney
General) v. Winner, 1954 CarswellNB 40, [1954] 2 W.L.R. 418). As we shall see,
however, his words received new life some 38 years later in Black v. Law Society
Alberta, [1989] 1 S.C.R. 591.

 Page 89
[307] In Malartic Hygrade Gold Mines Quebec Ltd. c. Quebec, [1982] C.S. 1146,
1982 CarswellQue 298 (Sup. Ct.) the issue was whether s. 6(2)(b) of the Charter
guaranteed the right of a member of the bar of Ontario to participate in judicial
proceedings in Quebec, without the requisite permit or license from the Quebec bar.
With reference to s. 6(2)(b) Chief Justice Deschênes wrote (at paras. 40 and 52):
40.

The purpose of this provision is undoubtedly to give Canadian citizenship
its true meaning and to prevent artificial barriers from being erected
between the provinces. …

and
52.

In principle the Charter thus intends to ensure interprovincial mobility.

[308] The foregoing passage from Malartic found favour with Justice Estey in
Skapinker, who found it to be “instructive” (at p. 15). The same passage was
subsequently quoted with approval by Justice LaForest in Black (at para. 51).

[309] At stake in Skapinker was the validity of s. 28(c) of the Law Society Act,
R.S.O. 1980, c. 233, which required that all members of the Ontario bar be Canadian
citizens. Mr. Skapinker met all the preconditions of membership except that of
citizenship.96 The case did not engage residency, as Mr. Skapinker was already a
resident of Ontario.

[310] At issue was the interrelationship between the Charter mobility right to
residency in s. 6(2)(a) and the right to earn a livelihood in any province, in s. 6(2)(b).
Justice Estey (for a unanimous court) concluded that both provisions relate to the
movement into another province and s. 6(2)(b) did not create a “separate and distinct
right to work divorced from the mobility provision in which it is found” (at page 16).

96

Mr. Skapinker became a Canadian citizen and was admitted to the Ontario bar during the course of the proceedings.
The Court nevertheless permitted the matter to proceed as it raised novel and important issues under the Charter.

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[311] With regard to the heading “Mobility Rights”, Justice Estey concluded that as
“one step” in the process of constitutional interpretation, at a “minimum” some
attempt should be made to discern the intent of the drafters of the document from
the language of the heading (at p. 13). While it is difficult to conceive of the heading
as of controlling importance, at the same time it is difficult to contemplate a situation
where the heading can be summarily rejected. The heading must have a “taint” of
relevancy (at p. 14), and “[p]erhaps its relevance is limited to an elimination of a
meaning which, in a range of two possible interpretations is out of sympathy with
the clear meaning of the heading itself” (at p. 14). Justice Estey stated (at p. 13):
In a constitutional document relating to personal rights and freedoms, the
expression “Mobility Rights” must mean rights of the persons to move about,
within and outside the national boundaries. Subsection (1), for example, refers to
a citizen’s right to leave and return to Canada.

[312] Some five years later s. 6 of the Charter again found its way to the Supreme
Court of Canada, this time in the case of Black. At issue in Black were two rules of
the Law Society of Alberta. The first rule (Rule 154) prohibited residents of Alberta
from entering into a law partnership with non-residents and the second (Rule 75B)
prohibited members of the Law Society from participating in dual or multiple
partnerships. The mobility question at issue was whether these rules violated the
right to pursue the gaining of a livelihood in any province, as guaranteed by s. 6(2)(b)
of the Charter.97

[313] Writing for the majority (Justice McIntyre, dissenting in part) Justice LaForest
concluded that both rules violated s. 6(2)(b) of the Charter, as their combined effect
was to seriously impair the ability of the respondents to maintain a viable association
for the purpose of earning a livelihood (at para. 58).

[314] Justice LaForest began his analysis of the scope and effect of s. 6(2)(b) with
a brief review of the “protection of interprovincial mobility in Canada” (at para. 33).

97

The case also raised, but did not decide, whether freedom of association as guaranteed by s. 2(d) of the Charter
was violated.

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After referencing the central importance of economic integration in what became the
Constitution Act, 1867 and the pre-Charter division of powers cases of Murphy v.
Canadian Pacific Railway Co., [1958] S.C.R. 626 and Manitoba (Attorney General)
v. Manitoba Egg & Poultry Assn., [1971] S.C.R. 689, the Justice stated (at para. 38):
38.

Before the enactment of the Charter, however, there was no specific
constitutional provision guaranteeing personal mobility, but it is
fundamental to nationhood and even in the early years of Confederation
there is some, if limited, evidence that the courts would, in a proper case,
be prepared to characterize certain rights as being fundamental to, and
flowing naturally from, a person's status as a Canadian citizen. …
[emphasis added]

[315] Justice LaForest then refers with approval to the passage (referenced above)
from Justice Rand in Winner, concluding that (at para. 39):
Rand, J. makes it clear that Canadian citizenship carries with it certain inherent
rights, including some form of mobility right. The essential attributes of citizenship
including the right to enter and the right to work in a province, he asserted, cannot
be denied by provincial legislatures.
[emphasis added]

[316] Justice LaForest next refers to extrinsic evidence in support of the “wave of
political and economic” concern regarding barriers to interprovincial economic
activity during the drafting of the Charter. That the “federal government, in
particular, was concerned about the growing fragmentation of the Canadian
economic union” (at para. 40), leading the Justice to conclude (at para. 41):
41.

These economic concerns undoubtedly played a part in the constitutional
entrenchment of interprovincial mobility rights under s. 6(2) of the Charter.
But citizenship and the rights and duties that inhere in it are relevant not
only to state concerns for the proper structuring of the economy. It defines
the relationship of citizens to their country and the rights that accrue to the
citizen in that regard, a factor not lost on Rand J., as is evident from the
passage already quoted. This approach is reflected in the language of s. 6 of
the Charter, which is not expressed in terms of the structural elements of
federalism, but in terms of the rights of the citizen and permanent residents
of Canada. Citizenship and nationhood are correlatives. Inhering in

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citizenship is the right to reside wherever one wishes in the country and to
pursue the gaining of a livelihood without regard for provincial boundaries.
Under Charter disposition, that right is expressly made applicable to
citizens and permanent residents alike. Like other individual rights
guaranteed by the Charter, it must be interpreted generously to achieve its
purpose to secure to all Canadians and permanent residents the rights that
flow from membership or permanent residency in a united country.
[emphasis added]

[317] Justice LaForest tells us that a “purposive approach to the Charter” dictates a
“comprehensive approach to mobility”, before concluding that the language of s.
6(2)(b) is clear enough, as permitting a person to pursue a livelihood in a province
without being there personally (at para. 62).

[318] Justice LaForest observed that it is “not without interest”, given the broad
similarities in the federal structure of the two countries, that mobility rights exist
under the United States Constitution (at para. 43). The American Constitution does
not have a specific clause dedicated to “mobility rights”, yet some of its provisions
have been interpreted as protecting those rights. Notably, Art. IV, s. 2(1) of the
United States Constitution, which provides that “The citizens of each state shall be
entitled to all Privileges and Immunities of Citizens in the several States” (at para.
44). The United States Supreme Court in Toomer v. Witsell, 334 U.S. 385 (1948)
stated that the purpose of privileges and immunities clause was “to help to fuse into
one Nation a collection of independent, sovereign states” (at para. 44). Justice
LaForest found it “noteworthy that this aim, as in the case of the Charter, was
achieved by according rights to the citizen” (at para. 44).

[319] In a similar vein, while not referenced in Black, we have the United States
Supreme Court ruling in Shapro, Commissioner of Welfare of Connecticut v.
Thompson, 394 U.S. 618 (1969). At issue were statutory provisions which denied
welfare assistance to those who had not lived in the jurisdiction for at least one year
before applying. In declaring the impugned provisions unconstitutional, Justice
Brennan, for a majority of the Court, observed that while mobility finds no explicit
mention in the United States Constitution, the Court long ago recognized that as one
people with one common country, all citizens of the United States “must have the
right to pass and repass through every part of it without interruption” (at page 17).

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[320] Next, we have a line of authority emanating from the Supreme Court of
Canada which addresses the s. 6(1) right to “remain in” Canada in the context of
extradition. The seminal case is that of United States of America v. Cotroni, [1989]
1 S.C.R. 1469. Mr. Cotroni, a Canadian citizen, was arrested in Canada under the
authority of the Extradition Act, R.S.C. 1970, c. E-21 and the Extradition Treaty
between Canada and the United States, CTS 1976, on the charge of conspiracy to
possess and distribute heroin.

[321] Justice LaForest, for the majority98, concluded that extradition prima facie
infringes upon the right to remain in Canada guaranteed by s. 6(1) of the Charter.
However, extradition “lies at the outer edges of the core values sought to be protected
by that provision”. The “central thrust of s. 6(1) is against exile and banishment, the
purpose of which is the exclusion of membership in the national community”, rather
than extradition (at para. 19).

[322] Justice LaForest proceeded to conclude that the “intimate relation between a
citizen and his country” invites a generous interpretation of the Charter right, such
that “the right to remain in one’s country is of such a character that if it is to be
interfered with, such interference must be justified as being required to meet a
reasonable state purpose” (at para. 16).

[323] In Cotroni, Justice Wilson (dissenting, but not on this issue) had the following
to say regarding s. 6(1) (at para. 73):
73.

98

Applying these guidelines [Big M Drug Mart], it is my view that s. 6(1) of
the Charter was designed to protect a Canadian citizen's freedom of
movement in and out of the country according to his own choice. He may
come and go as he pleases. He may elect to remain. Although only Canadian
citizens can take advantage of s. 6(1) the right protected is not that of
Canadian citizenship. Rather, the right protected focuses on the liberty of a
Canadian citizen to choose of his own volition whether he would like to
enter, remain in or leave Canada. Support for this interpretation is found in

Wilson, J. dissented on whether the violation was saved by s. 1.

 Page 94
the language of the other subsections of s. 6 and in the heading of s. 6
"Mobility Rights".
[emphasis added]

[324] In the more recent decision of United States of America v. Sriskandarajah,
2012 SCC 70, the Supreme Court of Canada reaffirmed its line of cases starting with
Cotroni, to the effect that extradition constitutes a “marginal limitation” of the s.
6(1) right to remain in Canada and lies at the outer edges of its core values (at para.
9). Flowing from this conclusion, extradition is generally warranted as a reasonable
limit of the right to remain in Canada under s. 1 of the Charter (at para. 10).

[325] In Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 the
Supreme Court of Canada addressed the interrelationship between s. 6(2)(b), the
right to pursue a livelihood, and the limitation on that right in s. 6(3)(a). The Court
quoted from its previous decisions in Skapinker and Black, in concluding that the
two sections must be read together as defining a single right, rather than one right
which is externally “saved” by the other. The discrimination provision in s. 6(3)
should be fully integrated into an understanding of the mobility right in s. 6(2)(b)(
at para. 54).

[326] In Canadian Egg Marketing Agency the Court quoted with approval from its
previous ruling in Black, followed by this passage (at para. 60):
60.

Situated in the Charter, and closely mirroring the language of international
human rights treaties, it seems clear then that s. 6 responds to a concern to
ensure one of the conditions for the preservation of the basic dignity of the
person. The specific guarantee described in s. 6(2)(b) and s. 6(3)(a) is
mobility in the gaining of a livelihood subject to those laws which do not
discriminate on the basis of residence. The mobility guarantee is defined
and supported by the notion of equality of treatment, and absence of
discrimination on the ground normally related to mobility in the pursuit of
a livelihood (i.e. residence). …
…
The freedom guaranteed in s. 6 embodies a concern for the dignity of the
individual. Sections 6(2)(b) and 6(3)(a) advance this purpose by

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guaranteeing a measure of autonomy in terms of personal mobility, and by
forbidding the state from undermining this mobility and autonomy through
discriminatory treatment based on place of residence, past or present. The
freedom to pursue a livelihood is essential to self-fulfilment as well as
survival. Section 6 is meant to give effect to the basic human right, closely
related to equality, that individuals should be able to participate in the
economy without being subject to legislation which discriminates primarily
on the basis of attributes related to mobility in pursuit of their livelihood.
[emphasis added]

[327] The Court concluded that s. 6 responds to a concern to ensure “one of the
conditions” for preserving the basic dignity of the person. Sections 6(2)(b) and
6(3)(a) of the Charter do so by addressing the basic human right to participate in the
economy.

[328] The role of Canada’s international obligations was to figure prominently a
quarter of a century later, when the Supreme Court of Canada again addressed s. 6
of the Charter. This time, in the case of Divito v. Canada (Minister of Public Safety
and Emergency Preparedness), 2013 SCC 47. The tone is set in the opening
paragraph of Divitio, wherein Justice Abella describes the mobility rights protected
by section 6 of the Charter as “among the most cherished rights of citizenship” (at
para. 1).

[329] Divito, a Canadian citizen, was sentenced to 7-1/2 years in prison in the
United States for serious drug offences. He applied to serve his sentence in Canada.
When the Canadian government refused, he argued an infringement of his mobility
rights as guaranteed by s. 6(1) of the Charter.

[330] Justice Abella observed that the protection for citizens in s. 6(1), like most
modern human rights protections, had its origins in the cataclysmic violations of
WW II. Without the ability to enter one’s country of citizenship the “right to have
rights” is illusionary. “The right of a Canadian citizen to enter and to remain in
Canada is therefore a fundamental right associated with citizenship” (Divito, at para.
21).

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[331] With regard to the interpretive scope of s. 6 Justice Abella wrote (at paras.
22-23):
22.

Canada’s international obligations and the relevant principles of
international law are thus instructive in defining the right … In Reference
re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 323
Dickson, C.J., dissenting, as describing the template for considering the
international legal context as follows:
The content of Canada's international human rights obligations is, in
my view, an important indicia of the meaning of "the full benefit of
the Charter's protection". I believe that the Charter should generally
be presumed to provide protection at least as great as that afforded
by similar provisions in international human rights documents
which Canada has ratified. [p. 349]

23.

More recently, in Health Services & Support-Facilities Subsector
Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391
(S.C.C.), McLachlin C.J. and LeBel J. confirmed that, "the Charter should
be presumed to provide at least as great a level of protection as is found in
the international human rights documents that Canada has ratified" (para.
70). This helps frame the interpretive scope of s. 6(1).

[332] The international law inspiration for s. 6(1) of the Charter was considered by
Justice Abella to be Article 12 of the International Covenant on Civil and Political
Rights, Can. T.S. 1976 No. 47 (“ICCPR”), as ratified by 167 states, including Canada
(Divito, at para. 24).

[333] Article 12 of the ICCPR reads:
1.

Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.

2.

Everyone shall be free to leave any country, including his own.

3.

The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security,
public order (ordre public), public health or morals or the rights and

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freedoms of others, and are consistent with the other rights recognized in
the present Covenant.
4.

No one shall be arbitrarily deprived of the right to enter his own country.99

[334] As a treaty to which Canada is signatory, the ICCPR provides the minimum
level of protection in interpreting mobility rights under the Charter (Divito, at para.
25).

[335] While not referenced in Divito, in a similar vein Article 13 of the Universal
Declaration of Human Rights, as adopted by the U.N. General Assembly, provides
that:
1.

Everyone has the right to freedom of movement and residence within the
borders of each State.

2.

Everyone has the right to leave any country, including his own, and to return
to his country.100

[336] While the Court in Divito was divided on whether Divito’s s. 6(1) Charter
right was violated (the minority concluding that the violation was justified under
section 1 of the Charter), it was unanimous in the generous interpretation of s. 6(1)
in a manner consistent with the broad protection of mobility rights under
international law (at para. 55).

99

Brief of the Second Applicant, Tab 5, and as quoted by the Court in Divito.

100

Brief of the Second Applicant, Tab 6.

 Page 98
Analysis of Mobility Rights

Section 6(1) of the Charter

[337] I start from what the Supreme Court of Canada has described as its
“primordial direction” that rights under the Charter are to be defined generously in
light of the interests the Charter was designed to protect (Divito, at para. 19). In R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. Justice Dickson summarized the
requisite approach, as follows (at paras. 117-118):
117.

This court has already in some measure, set out the basic approach to be
taken in interpreting the Charter. In Hunter v. Southam Inc, this Court
expressed the view that the proper approach to the definition of the rights
and freedoms guaranteed by the Charter was a purposive one. The meaning
of a right or freedom guaranteed by the Charter was to be ascertained by an
analysis of the purpose of such a guarantee; it was to be understood, in other
words, in the light of the interests it was meant to protect.

118.

In my view this analysis is to be undertaken, and the purpose of the right or
freedom in question is to be sought by reference to the character and the
larger objects of the Charter itself, to the language chosen to articulate the
specific right or freedom, to the historical origins of the concepts enshrined,
and where applicable, to the meaning and purpose of the other specific
rights and freedoms with which it is associated within the text of the
Charter. The interpretation should be, as the judgment in Southam
emphasizes, a generous rather than a legalistic one, aimed at fulfilling the
purpose of the guarantee and securing for individuals the full benefit of the
Charter's protection. At the same time it is important not to overshoot the
actual purpose of the right or freedom in question, but to recall that the
Charter was not enacted in a vacuum, and must therefore, as this Court's
decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R.
357, illustrates, be placed in its proper linguistic, philosophic and historical
contexts.

[338] In pursuit of the purpose of the mobility right in question reference may thus
be had to the character and larger objects of the Charter, the language chosen to
articulate the right, the historical origins of the right and the purpose of other specific
rights and freedoms with which it is associated within the text of the Charter. The

 Page 99
interpretation should be generous, rather than legalistic, aimed at fulfilling the
purpose of the guarantee and securing for individuals the full benefit of the Charter’s
protection. At the same time it should not overshoot the right or freedom in question.

[339] At this point my conclusion with respect to s. 6(1) of the Charter bears
repeating. Namely, that the right to remain in Canada as embodied in this provision
includes the right of Canadian citizens to travel in Canada for lawful purposes across
provincial and territorial boundaries.

[340] My reasons for interpreting s. 6(1) of the Charter in this manner are, as
follows.

[341] First, I start with a consideration of the language of s. 6 and the purpose and
meaning of the other rights with which the right to “remain in” is associated.

[342] It will be observed that s. 6 provides for two sets of rights. The first, as found
in section 6(1), is the right of Canadian citizens to enter, remain in and leave Canada.
The second, as found in s. 6(2), is the right of Canadian citizens and permanent
residents to move to, live in, and work in any province (Divito, at para. 17). Unlike
the rights in s. 6(1), the rights in s. 6(2) are subject to the qualifications in ss. 6(3)
and 6(4) (Canadian Egg Marketing Agency).

[343] The s. 6(1) right is thus comprised of three distinct rights; the right to enter
Canada, the right to remain in Canada (the subject of our inquiry) and the right to
leave Canada. The right to enter Canada is a right of pure mobility. So too, is the
right to leave Canada.

[344] The remaining rights in s. 6(2) have likewise been interpreted as rights of
mobility. In Skapinker, Justice Estey concluded that both ss. 6(2)(a) and (b) relate
to movement into another province and that s. 6(2)(b) did not create a “separate and
distinct right to work divorced from the mobility provision in which it is found”(at
p. 16). In Black, Justice LaForest concluded that the right to earn a livelihood in any

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province is not a static right to employment, but rather to travel throughout the
country for this purpose.

[345] The rights protected in s. 6 are thus positive rights of mobility. By a positive
right, I mean a right of action. The right to choose. The right to travel for livelihood
or residence (Skapinker, Black). The right to come and go from Canada as one
pleases (Cotroni, at para. 73, Divito).

[346] Thus, an interpretation of the right to remain in Canada as embodying a
positive right of mobility is consistent with the purpose and meaning of the other
rights with which it is associated. Furthermore, such an interpretation is not “out of
sympathy” with the heading of s. 6, “Mobility Rights”. As Justice Estey stated in
Skapinker (at para. 28):
28.

… In a constitutional document relating to personal rights and freedoms,
the expression "Mobility Rights" must mean rights of the person to move
about, within and outside the national boundaries….
[emphasis added]

[347] Second, if the right to remain in Canada includes a positive right of mobility,
what is the nature of that right? How might it be exercised while in Canada? The
extradition cases were not called upon to address this question.

[348] If we accept, as we must, that s. 6(1) protects the citizen’s choice to remain in
Canada (Controni, Sriskandarajah,), we must also recognize that such choices are
not made in a factual vacuum. The right to remain in Canada must, of necessity,
include the right to choose where in Canada one wishes to be from time to time. By
the express language of s. 6 our citizens’ options are not limited to a part of Canada,
or to the province of one’s immediate residence, but to all of Canada. We may ask
rhetorically, how is the citizen to exercise this right without the ability to traverse
provincial and territorial boundaries?

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[349] Viewed in this manner the citizen’s choice to remain in Canada (i.e., to be in
Canada) emerges, like the other rights in s. 6, as a positive right of mobility. The
right to travel within Canada.

[350] It is not an answer for this province to say to Ms. Taylor, you still have the
right to remain in Canada, just not this part of Canada. If Newfoundland and
Labrador is entitled to close its border to Ms. Taylor without attracting Charter
scrutiny, might other provinces and territories not do the same?

[351] In the context of s. 6(2)(b) LaForest, J. in Black stated (at para. 68):
68.

Denying non-residents access to some fields cannot be condoned, for the
purposes of s. 6(2)(b), by the fact that some job positions are still left open
to non-residents. The right to pursue this livelihood of choice must remain
a viable right and cannot be rendered practically ineffective and essentially
illusory by the provinces….
[emphasis added]

[352] We might by analogy apply this logic to Ms. Taylor’s right to remain in
Canada. The provinces may not render the right “practically ineffective and
essentially illusory” by closing their borders.

[353] At the risk of sounding pedantic, if I may be forgiven for proposing this simple
analogy. In common parlance, we would regard the right to come and go from one’s
home, and to remain in it, as surely including the right to wander freely from room
to room.

[354] That is not to suggest that the right to remain and the right to travel are
synonymous, such that we may substitute “travel” with “remain” in s. 6(1). They
are not. Rather, the mobility right, the right to travel across provincial and territorial
boundaries, flows from and is a logical consequence of the citizen’s choice to remain
in Canada.

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[355] Third, the foregoing approach to s. 6(1) finds support in the judicial
commentary to date regarding mobility and the rights inherent in citizenship.

[356] Canada is a unified federation, not a series of republics. We are one people
with one common country. The right to traverse Canada thus gives Canadian
citizenship its true meaning and prevents artificial barriers from being erected
between the provinces (Malartic, at para. 40). In this manner the country may not
be “converted into a number of enclaves and the ‘union’ which the original provinces
sought and obtained disrupted.” (Rand, J. in Winner, at para. 119, as quoted with
approval in Black).

[357] It is an interpretation of s. 6(1) that recognizes and respects “the intimate
relation between a citizen and his country” (Cotroni, at para. 16) and recognizes
personal mobility as fundamental to nationhood (Black, at para. 38). It recognizes
the s. 6(1) right as among the “most cherished rights of citizenship” (Divito, at para.
1).

[358] It is an interpretation that defines the relationship of citizens to their country
(Black, at para. 41) and “embodies a concern for the dignity of the individual”
(Canadian Egg Marketing Agency, at para. 60).

[359] Fourth, the citizen’s freedom of movement across provincial and territorial
boundaries is consistent with Canada’s international human rights obligations. Such
obligations are an important indicia of the full benefits of Charter protection
(Divito).

[360] The Charter is presumed to provide protection at least as great as that afforded
by the various international human rights documents Canada has ratified. In this
regard, the international law aspiration for s. 6(1) of the Charter is considered to be
Article 12 of the ICCPR (Divito, at para. 24).

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[361] Article 12(1) of the ICCPR provides:
Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
[emphasis added]

[362] Article 12(3) of the ICCPR provides that the foregoing right shall not be
subject to any restrictions except those which are provided by law and necessary to
protect, amongst other things, public health. In the context of the Charter this
qualifying language finds its expression in the s. 1 limitation on Charter rights, a
topic which is addressed later in this decision. The possibility that public health
measures might be necessary to restrict the liberty of others does not alter the
essential character of the “right to liberty of movement” enshrined in Article 12(1).

[363] The foregoing interpretation of s. 6(1) is also consistent with Article 13(1) of
the Universal Declaration of Human Rights which provides that “everyone has the
right to freedom of movement and residence within the borders of each state.”

[364] Fifth, and by no means the least important. This is not a circumstance of
reading language into s. 6(1), but rather of giving full breadth and scope to the
language that exists. A purposive approach to the Charter dictates a comprehensive
and generous approach to mobility (Black, at para. 62). The foregoing interpretation
of s. 6(1) is such as to fulfill for Canadian citizens, such as Ms. Taylor, the full
benefit of the Charter’s protection (Big M Drug Mart, at para. 118).

[365] The right to “remain in” Canada in s. 6(1) of the Charter thus includes the
right of Canadian citizens to travel in Canada for lawful purposes across provincial
and territorial boundaries. The right is not one of residence or livelihood. As we
shall see, these are governed by s. 6(2). But rather the right simpliciter to travel
within Canada.

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[366] Ms. Taylor was denied this right when her application for an exemption was
refused on 8 May 2020. Her right to mobility as guaranteed by s. 6(1) was thereby
infringed by the travel restriction.

Section 6(2) of the Charter

[367] Turning now to s. 6(2) of the Charter. It reads:
6(2)

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.

[368] We have already observed that Ms. Taylor did not wish to travel to this
province to take up residence, or pursue a livelihood. However, I am nevertheless
urged by the Applicants to interpret s. 6(2)(a) disjunctively so that it embodies not
one, but two distinct rights. The first being the right “to move to” any province,
which the Applicants would interpret as synonymous with “to travel to” any
province, and the second being the right to “take up residence” in any province.
Viewed in this manner, Ms. Taylor argues that her s. 6(2)(a) Charter right “to move
to” this province was infringed when she was denied entry.

[369] With the greatest respect to the Applicants, I am unable to interpret s. 6(2)(a)
in this manner, for to do so is to strain its language beyond what even a generous
and liberal interpretation of the Charter can bear. Accepting that a legalistic
approach is to be shunned, at the same time it is important not to overshoot the
purpose of the freedom and right in question (Big M Drug Mart, at para. 118).

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[370] Rather, I interpret the language “to move to” as conjunctive with the taking
up residence in any province, such that the right as defined is singular, the right to
move to and take up residence.

[371] Does such an interpretation mean that the language “to move to” is
superfluous, such that s. 6(2)(a) might simply read as the right to “take up residence”
in any province?

[372] I do not think so, for the right is a mobility right, not a static right of residence.
I am prepared to take judicial notice of the fact that from time to time Canadians
change their place of residence in Canada. That said, this case does not concern what
is meant by “residence”, as by any reasonable interpretation Ms. Taylor did not wish
to come to Newfoundland and Labrador for that purpose.

[373] I would thus interpret the right to move to and take up residence as the right
to live anywhere in Canada and to move freely about the country for that purpose,
subject to the limitations in s. 6(3).

[374] Viewed from this perspective s. 6(2) does not encompass the right simpliciter
of Canadian citizens and permanent residents to travel across provincial and
territorial boundaries. As we have seen, that right is reserved for Canadian citizens
under s. 6(1) of the Charter. Rather, subject to the qualifications in s. 6(3) the
mobility rights guaranteed by s. 6(2) are those of residency and employment. The
right to move to and live anywhere in Canada and the right to earn a livelihood in
any province. Such an interpretation is in keeping with the historical purpose of s.
6(2) which had as its concern the economic integration of the country (Black, at
paras. 40 and 41).

[375] As Ms. Taylor did not seek to travel to this province to earn a livelihood or
take up residence, her right to mobility under s. 6(2) of the Charter was not engaged
by the travel restriction.

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DID THE TRAVEL RESTRICTION VIOLATE MS. TAYLOR’S RIGHTS
UNDER SECTION 7 OF THE CHARTER?

[376] The Applicants argue that by denying Ms. Taylor entry into the province to
attend her mother’s funeral, her right to liberty as guaranteed by s. 7 of the Charter
was also infringed, and that the infringement was not in accordance with the
principles of fundamental justice. For the reasons that follow, and without wishing
to trivialize the importance to Ms. Taylor of the reason for her visit, I conclude that
in this case s. 7 of the Charter was not engaged by the travel restriction.

[377] Section 7 of the Charter provides that:
Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice.

[378] The Respondents make the argument, convincingly in my view, that s. 7 is not
an amalgam of expressed rights under the Charter, and where an expressed right
exists the Court should reject s. 7 claims as creating parallel rights with different
tests and standards.

[379] In this case the expressed right is the right to mobility. Section 6(1) rights,
apply to citizens of Canada and s. 6(2) rights to citizens of Canada and permanent
residents. Section 7 on the other hand applies to “everyone”, interpreted as “every
human being who is physically present in Canada and by virtue of such presence
amenable to Canadian Law” (Singh v. Canada (Minister of Employment and
Immigration), [1985] 1 S.C.R. 177, at p. 202).

[380] Furthermore, s. 6 mobility rights are subject to the application of s. 1 of the
Charter and may be infringed where the infringement can be demonstrably justified
in a free and democratic society. Section 7 is subject to the principles of fundamental
justice. These principles demand that the law not be arbitrary, overbroad or grossly
disproportionate to its object. The inclusion of mobility rights in s. 7 under the guise
of a “liberty” right would thus give rise to a new constitutional standard for mobility.

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[381] In R. v. Lloyd, 2016 SCC 13 the Supreme Court of Canada struck down the
one year mandatory minimum jail sentence for certain drug offences as being
“grossly disproportionate” and thus in violation of the prohibition against cruel and
unusual punishment in s. 12 of the Charter.

[382] In response to Lloyd’s argument that his Charter right to liberty under s. 7 of
the Charter was also violated, Chief Justice McLachlin observed that the “principles
of fundamental justice in s. 7 must be defined in a way that promotes coherence
within the Charter and conformity to the respective roles of Parliament and the
courts” (Lloyd, at para. 40).

[383] The present circumstance is not unlike that in Lloyd, where the Chief Justice
concluded that to invoke the s. 7 right to liberty would give rise to a new
constitutional standard lower than s. 12, leading to incoherence in the Charter.

[384] Were I wrong in concluding that s. 7 does not apply where mobility rights are
expressly provided for in the Charter, I would conclude in any event that Ms.
Taylor’s liberty interest was not engaged on the facts of this case. With the greatest
respect to Ms. Taylor, and while not discounting the importance to her of attending
her mother’s funeral, her decision to do so does not rise to the level of a “fundamental
personal choice”, as defined in the case law, so as to attract constitutional protection.

[385] Underlying both liberty and security of the person is a concern for the
protection of individual autonomy and dignity. Liberty protects “the right to make
fundamental personal choices free from state interference” (Blencoe v. British
Columbia (Human Rights Commission), 2000 SCC 44 at para. 54), as quoted with
approval in Carter v. Canada (Attorney General), 2015 SCC 5, at para. 64.

[386] On this point I find myself again in agreement with the Respondents. The
fundamental personal choices that have to date attracted Charter protection are
qualitatively different than Ms. Taylor’s decision in this case. While the Supreme
Court of Canada has yet to define a test for what constitutes a “fundamental personal
choice”, the test cannot be a subjective one. Were it otherwise, all personal choices

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would be protected under the Charter. This interpretation was expressly rejected by
the Supreme Court of Canada in R. v. Malmo-Levine, 2003 SCC 74. In that case the
appellant argued that smoking marijuana was integral to his lifestyle, such that
criminalization violated his right to liberty under s. 7.

[387] While accepting that marijuana use was integral to the appellant’s lifestyle,
Justices Gonthier and Binnie stated “ … the Constitution cannot be stretched to
afford protection to whatever activity an individual chooses to define as central to
his or her lifestyle” (Malmo-Levine, at para. 86).

[388] In R. v. Videoflicks Ltd., [1986] 2 S.C.R. 713 the Respondent argued that the
statutory obligation to close his business on Sunday deprived him of “liberty”. Chief
Justice Dickson concluded that “whatever the precise contours of liberty within the
meaning of s. 7, I cannot accept that it extends to an unconstrained freedom to
transact business whenever one wishes” (at para. 154).

[389] I appreciate that we are not here dealing with a lifestyle choice, or a business
transaction. However, examples to date of what amount to a fundamental personal
choice such as to engage the s. 7 liberty interest include the following:

 In Carter a majority of the Court concluded that an individual’s response to a
grievous and irremediable medical condition is a matter critical to one’s
dignity and autonomy. As such, a law which interferes with the ability to
make decisions concerning medical care and bodily integrity trenches on
liberty under s. 7.

 In B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R.
315 the appellants argued that their right to choose (refuse) medical treatment
for their child was a liberty interest protected by s. 7. The treatment in
question being a blood transfusion. Justice LaForest, for the majority, agreed,
but concluded on the facts that there had been no violation of the principles of
fundamental justice.

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 In R. v. Morgentaler, [1988] 1 S.C.R. 30 Justice Wilson concluded that a
woman’s liberty interest was engaged in deciding whether or not to have an
abortion, as the “decision is one that will have profound psychological,
economic and social consequences for the pregnant woman” (at para. 300).

 In R. v. Smith, 2015 SCC 34 restrictions on the manner medical marijuana
could be ingested was held to violate the liberty interest of the appellant, by
exposing him to a threat of imprisonment for violation and by foreclosing
reasonable medical choices through the threat of criminal prosecution. By
forcing a person to choose between a legal, but inadequate treatment (smoking
dry marijuana), and an illegal but more effective choice (ingestion), the law
also infringed security of the person.

[390] Fundamental personal choices sufficient to engage s. 7 thus far include
deciding whether one’s child should receive a blood transfusion (B. (R.)), abortion
(Morgentaler, per Justice Wilson), the decision to end one’s life when facing a
chronic incurable disease (Carter), and a restriction on the use of medical marijuana
(Smith). Without discounting the importance to Ms. Taylor of attending her
mother’s funeral this decision is qualitatively different than the fundamental
personal choices engaged by s. 7.

[391] In response, the Applicants refer to Godbout v. Longueuil (Ville), [1997] 3
S.C.R. 844, wherein all nine judges struck down a law which imposed a residency
requirement as a condition of employment, as contrary to s. 5 of the Quebec Charter
of Human Rights and Freedoms, R.S.Q., c. C-12. Section 5 provided that “Every
person has a right to respect for his private life.”

[392] Three of the nine Justices (La Forest, L'Heureux-Dubé and McLachlin, J.J.)
would have also concluded that the law violated the right to liberty enshrined in s. 7
of the Charter. Justice La Forest wrote that “choosing where to establish one's home
is a quintessentially private decision going to the very heart of personal
autonomy…” (Godbout, at para. 66).

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[393] The remaining six judges gave s. 7 a pass, however, concluding that it was
“unnecessary and perhaps imprudent” to consider whether s. 7 was infringed in the
absence of submissions from other interested parties (Godbout, at para. 1).

[394] In Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,
2011 SCC 37 the Court noted the absence of a majority in Godbout, stating that:

93.

It is not clear that place of residence is a protected liberty interest under s.
7 of the Charter. … [T]he issue remains unsettled.

[395] Godbout was not a s. 7 decision and I do not regard it as an expansion of the
liberty interests engaged by this provision. In any event, the facts in Godbout are
distinguishable. Ms. Godbout was forced to live in a place against her wishes in
order to maintain employment. We are not here concerned with residency or
employment.

[396] As I have concluded that Ms. Taylor’s liberty interests were not engaged by
the travel restriction within the meaning of s. 7, I decline to proceed further to
consider whether there was a violation of the principles of fundamental justice.

IF MS. TAYLOR’S CHARTER RIGHTS WERE INFRINGED, IS THE
INFRINGEMENT JUSTIFIED UNDER SECTION 1 OF THE CHARTER IN
RESPONSE TO THE COVID-19 PANDEMIC?

Introduction

[397] Ms. Taylor’s right to mobility under the Charter is not absolute. However, if
government is to infringe a Charter right, if it is going to tell a citizen such as Ms.
Taylor that she cannot travel to Newfoundland and Labrador, it had better have a
very good reason. In legal terms that “very good reason” finds its expression in s. 1
of the Charter.

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[398] Section 1 provides:
1.

The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.

[399] The yardstick by which the travel restriction is to be measured are the values
and principles essential to a free and democratic society. As the Supreme Court of
Canada observed in R. v. Oakes, [1986] 1 S.C.R. 103, the rights and freedoms
guaranteed by the Charter are not absolute and there may be “circumstances where
their exercise would be inimical to the realization of collective goals of fundamental
importance” (at para. 68).

[400] The Respondents argue that in this case there are “collective goals of
fundamental importance” which must prevail over Ms. Taylor’s mobility right,
namely the protection of others from the spread of COVID-19.

[401] On the other hand, the Applicants argue that the travel restriction was an
unnecessary measure to control COVID-19, such that the infringement of Ms.
Taylor’s right to mobility cannot be justified under s. 1 of the Charter. The
Applicants also argue that the travel restriction is in violation of s. 13 of the PHPPA.

[402] For the reasons that follow, I conclude that the infringement of Ms. Taylor’s
mobility right by the travel restriction was justified on the evidentiary record in this
case, as a reasonable measure to reduce the spread of COVID-19 in Newfoundland
and Labrador. There was no violation of s. 13 of the PHPPA.

Context

[403] I begin with a consideration of the context of the travel restriction, the nature
of the problem it sought to address. Context has been described as the “indispensable
handmaiden” to the s. 1 analysis. As Justice Gonthier stated for the majority in

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Thompson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 (at
para. 87):
87.

The analysis under s. 1 of the Charter must be undertaken with a close
attention to context. This is inevitable as the test devised in R. v. Oakes,
[1986] 1 S.C.R. 103 (S.C.C.), requires a court to establish the objective of
the impugned provision, which can only be accomplished by canvassing the
nature of the social problem which it addresses. Similarly, the
proportionality of the means used to fulfil the pressing and substantial
objective can only be evaluated through a close attention to detail and
factual setting. In essence, context is the indispensable handmaiden to the
proper characterization of the objective of the impugned provision, to
determining whether that objective is justified, and to weighing whether the
means used are sufficiently closely related to the valid objective so as to
justify an infringement of a Charter right.

[404] Contextual factors are directed towards determining whether or not, given the
nature of the case, evidence will consist of “approximations and extrapolations” and
therefore to what extent arguments based on logic and reason will be accepted as a
foundational part of the s. 1 case (R. v. Bryan, 2007 SCC 12, at para. 29).

[405] In Harper v. Canada (Attorney General), 2004 SCC 33 Justice Bastarache
observed that the “legislature is not required to provide scientific proof based on
concrete evidence of the problem it seeks to address in every case” (Harper, at para.
77). In the absence of determinative scientific evidence the Court is entitled to rely
on logic, reason and the application of common sense to what is known (Harper, at
para. 78).

[406] At issue in Harper was whether the spending limits in s. 350 of the Canada
Elections Act, S.C. 2000, c. 9 infringed the right to free expression in s. 2(b) of the
Charter. The majority, led by Justice Bastarache, concluded that the infringement
was demonstrably justified under s. 1 of the Charter. For the majority the “central
issue” in the s. 1 analysis was the nature and sufficiency of the evidence required by
the Attorney General to justify the infringement (at para. 75).

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[407] After observing that this was not the first time the Court was faced with
conflicting social science evidence Justice Bastarache stated (at para. 76):
The context of the impugned provision determines the type of proof that a court
will require of the legislature to justify its measures under s. 1; see Thomson
Newspapers, at para. 88. As this pivotal issue affects the entire s. 1 analysis, it is
helpful to consider the contextual factors at the outset.
[emphasis added]

[408] The Justice then proceeded to consider the applicable contextual factors under
four categories: (i) the nature of the harm and the inability to measure it; (ii)
vulnerability of the group; (iii) subjective fears and apprehension of harm; and (iv)
nature of the infringed activity.

[409] To these contextual considerations the Respondents seek to add deference to
the CMOH and the institutional capacity of the Courts.

(i)

The Nature of the Harm and the Inability to Measure it

[410] The nature of the harm caused by COVID-19 is unfortunately all too real. It
is a severe acute respiratory illness that has killed close to a million persons globally
and almost 10,000 in Canada alone, and the number continues to rise.101 Dr. Wilson
explained, as did Dr. Fitzgerald, that there are characteristics which increase the
complexity of public health decision making in the case of COVID-19. It is a novel
virus with no known cure, effective treatment or vaccine, and the illness caused by
it is far more severe than seen in influenza. Infected, but asymptomatic persons,
may unwittingly infect others.

[411] I found the evidence of Dr. Wilson and Dr. Fitzgerald to be most informative
in explaining the challenges faced by those with the responsibility for public health
101

Fitzgerald Affidavit, at para. 45.

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decision making in the context of a pandemic such as COVID-19. In the context of
such a public health emergency, with emergent and rapidly evolving developments,
the time for seeking out and analyzing evidence shrinks. Where the goal is to avert
serious injury or death, the margin for error may be narrow. In such a circumstance,
the response does not admit of surgical precision. Rather, in public health decision
making the “precautionary principle” supports the case for action before
confirmatory evidence is available.

(ii)

Vulnerability of the Group

[412] Dr. Parfrey explained that as compared to the other provinces and territories,
the Newfoundland and Labrador population is particularly vulnerable to severe
illness from COVID-19. This province ranks the highest, or near the highest, for
many of the risk factors for severe illness or death from this disease: asthma; chronic
kidney, lung and liver diseases; diabetes; serious heart conditions; obesity and
cancer.

[413] In addition, the province has an aging population with almost one quarter of
its residents being age 65, or older. Those in that age bracket are more likely to be
hospitalized and admitted to ICU even without other co-morbidities. At the time of
implementing the travel restriction COVID-19 was on the rise in Nova Scotia and
that province was in the midst of a large outbreak in a long term care facility in the
Halifax metro area.102

(iii)

Subjective Fears and Apprehension of Harm

[414] It is a statement of the obvious to say that given the potential for serious illness
or death from COVID-19, there is a heightened fear of contracting this illness.

102

Fitzgerald Affidavit, at para. 73.

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(iv)

Nature of the Infringed Activity – Mobility

[415] In this case the activity infringed was Ms. Taylor’s travel to this province to
attend her mother’s funeral. The right of Canadian citizens to move freely
throughout their country across provincial and territorial boundaries, for lawful
purposes, is not a right to be taken lightly. The fact that s. 6 is not subject to the s.
33 notwithstanding clause underscores the importance of this right.103 That said, as
already observed, the infringement of Ms. Taylor’s mobility right in this case was
fleeting.

(v)

Role of the CMOH and the Institutional Capacity of the Court

[416] An examination of context is essential in deciding whether or not deference is
appropriate. However, deference itself is not to be determined at the outset of the s.
1 inquiry, but rather, where appropriate, under the various steps in the s. 1 analysis
(M. v. H., [1999] 2 S.C.R. 3 at paras. 80-81). I thus decline to comment on the role
of the CMOH and the Court at this stage of our inquiry.

The Section 1 Test for Infringement

[417] I turn now to the specific requirements which must be met in order to justify
the infringement of a Charter right.

[418] The onus of proving that a limit or freedom guaranteed by the Charter meets
the criteria of s. 1 rests upon the party seeking to uphold the limitation, the

103

Section 33 of the Charter permits a Parliament or the legislature of a province to expressly declare (opt out) that
legislation operates notwithstanding s. 2 or ss. 7-15 of the Charter. Governments cannot opt out of the s. 6 mobility
right.

 Page 116
Respondents in this case. The standard of proof is the civil standard, namely proof
by a preponderance of probability. A tipping of the scales.

[419] Two central requirements must be met in order to establish that a limit is
reasonable and demonstrably justified in a free and democratic society.

[420] First, the objective which the measures responsible for a limit on a Charter
right or freedom are designed to serve must be of sufficient importance to warrant
overriding the right or freedom.

[421] Second, if a sufficiently important objective is identified, the party invoking
s. 1 must establish that the means chosen are reasonable and demonstrably justified
(see Oakes, paras. 73 – 74).

[422] This second requirement involves a form of proportionality test, where in each
case the court is required to “balance the interests of society with those of individuals
and groups” (Oakes, at para. 74). There are three components to this inquiry. First,
the measures adopted must be rationally connected to the objective.

[423] Second, the means chosen must impair as little as possible the right or freedom
in question. Sometimes referred to as the least drastic means, or minimum
impairment, the law should impair the right no more than is necessary to accomplish
the desired objective.

[424] Third, there must be proportionality between the effects of the measures and
the objective. With regard to this third criteria, in order to be reasonable and
demonstrably justified, the more severe the deleterious effects of a measure the more
important must be the objective (Oakes, at para. 74-75). As such, even if the
objective is of sufficient importance, the measures rationally connected and the
impairment a minimum, it remains possible that the severity of the deleterious
effects will not be justified by the purposes it is intended to serve (Oakes, at para.
75).

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[425] Turning now to an application of these criteria to the case at hand.

Does the Travel Restriction Relate to a Pressing and Substantial Objective?

[426] The first step in the s. 1 analysis is to determine whether the objectives of the
law are of sufficient importance to warrant the limitation of the constitutional right,
the right to mobility in this instance. Is the objective of the law, the travel restriction
in this context, pressing and substantial?

[427] The CCLA acknowledges that the express purpose of the travel restriction is
“to prevent the spread of COVID-19 in the province”.104

[428] The First Applicant agrees that the travel restriction was “ostensibly” to
protect the health of residents of Newfoundland and Labrador by limiting the spread
of COVID-19 so as to not overwhelm the medical resources available in the
province.105

[429] However, the Applicants argue that the measures in place prior to the travel
restriction were already successful at controlling the spread of COVID-19, at
“flattening the curve”, such that the real pressing and substantial objective was to
prevent non-residents, such as Ms. Taylor, from entering the province in violation
of their Charter rights.

[430] With the greatest respect to the Applicants, this argument misapprehends the
objective of the travel restriction. I agree that when the travel restriction was

104

CCLA Brief, at p. 24.

105

First Applicant’s Brief, at para. 68.

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imposed there were a low number of infections in this province. However, the
objective of the travel restriction was not to “flatten the curve”.

[431] The low prevalence of COVID-19 here did not make the travel restriction
unnecessary. Quite the opposite. Dr. Proton Rahman, who was qualified by the
Court as an expert in the field of epidemiology, explained:
Local infection levels are a consideration for COVID-19 management. When there
are hundreds of active cases, then a few imported cases does not appreciably alter
the management of the outbreak; however, when there are only a small number of
active cases, just a few imported cases may double the number of active
transmission chains, changing local infection prevalence quite substantially. 106

[432] Further, in populations with low infection levels and thus little immunity, the
growth rate of COVID-19 is exponential. Again Dr. Rahman explained:
In the early phase of an epidemic, the number of cases increases exponentially, as
epidemic susceptible individuals are plentiful, and if each infected person generates
two new infections, then from one infected individual, the second, third, fourth, and
fifth generations of infection spread will yield 2, 4, 8, and 16 infected individuals,
respectively.107

[433] In a similar vein, the rationale for the travel ban was explained by the CMOH,
Dr. Janice Fitzgerald:
The travel restrictions were introduced to protect Newfoundland and Labrador from
the importation, and ultimate spread of COVID-19. Newfoundland and Labrador
witnessed firsthand how a single case of COVID-19 could easily spread from
person to person, some even spreading without knowing they have the disease or
presenting with any symptoms. Much of this spread can be traced back to out-ofprovince travel. At the time of introduction, many other provinces were seeing
increasing cases of disease and we were having success at controlling the outbreak

106

Rahman Affidavit, Tab 2, at p. 6.

107

Rahman Affidavit, Tab 2, at p. 11.

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here. There were concerns raised regarding compliance with self-isolation orders
from municipalities and there was concern that as cases continues to rise in other
parts of the country, people would attempt to come to Newfoundland and Labrador
to avoid COVID-19, potentially increasing the importation risk.108
[emphasis added]

[434] While this province had a low infection rate at the time of the travel restriction,
it was Dr. Fitzgerald’s evidence that “the biggest risk is an introduction of the disease
from importation from other jurisdictions109.”

[435] I accept this reasoning. It seems entirely logical to put measures in place to
control the spread of COVID-19 from an area of high infection to an area of low
infection.

[436] The objective of the travel restriction was not to interfere with Ms. Taylor’s
rights, but to protect those in Newfoundland and Labrador from illness and death
arising from the importation and spread of COVID-19 by travelers. While pressing
and substantial objectives are not limited to emergencies (P.S.A.C. v. Canada,
[1987] 1 S.C.R. 424) the existence of COVID-19 as a public health emergency is
beyond question.

[437] There can be no doubt that the goal of the travel restriction in reducing the
importation of COVID-19 into Newfoundland and Labrador is a pressing and
substantial objective.

Is there a Rational Connection between the Objective and Infringement of the
Right?

108

Fitzgerald Affidavit, at para. 89.

109

Fitzgerald Affidavit, at para. 90.

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[438] This requirement calls for an assessment of how well the travel restriction is
tailored to suit its purpose. A rational connection prevents limits from being
imposed on rights arbitrarily. The Respondents must establish that it is reasonable
to suppose that the travel restriction will further the goal (of reducing the importation
of COVID-19), not that it is guaranteed to do so (Hutterian Brethren of Wilson
Colony v. Alberta, 2009 SCC 37, at para. 48).

[439] The Applicants argue that the Respondents have failed to show why the
requirement for self-isolation was deemed insufficient to arrest the spread of
COVID-19. The Applicants note that by the time the province introduced the travel
restriction, it had already been successful at flattening the curve. This argument is
essentially a repeat of that advanced with respect to whether the travel restriction
amounted to a pressing and substantial objective, but now advanced with respect to
the rational connection part of the s.1 test.

[440] The Applicants argue that it defies logic to assert that the travel restriction is
effective in containing COVID-19 when people are still entering the province with
exemptions from other parts of Canada, including provinces with some of the highest
rates of infection. According to the Applicants, it is the 14 day self-isolation period
and other legitimate orders of the CMOH, such as social distancing, that has resulted
in success in the fight against the virus.

[441] I accept that there are other measures which have proven successful in the
fight against COVID-19, but I do not agree that these measures render the travel
restriction unnecessary, such that it is no longer rationally connected to combating
the spread of the disease.

[442] While empirical evidence is not necessary to establish a rational connection,
the Respondents provided convincing evidence of the effectiveness of the travel
restriction. Dr. Rahman and the predictive analytics group modelled the effects of
the travel restriction using two independent simulations: the NL Branching Process
Model (NL-BP) and the Agent Based Simulation (ABS-NL) model. Dr. Rahman
testified during cross-examination that both models are accepted within the
epidemiology community.

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[443] The NL-BP model assumed three infected travelers per month who failed to
isolate, yielding results that showed:
Over the 9 weeks subsequent to May 4th, failing to implement the travel ban results
in ten times more COVID-19 cases in NL residents, where these residents are part
of an infection chain that began with an infected traveler …. In the early phase of
an epidemic, the number of cases increases exponentially. If a period of longer than
9 weeks were considered, the predicted effect of the travel ban would be even
greater than a ten-fold decrease, since the number of cases increases exponentially,
thus widening the difference between the travel ban and the no travel ban scenario
over time.110

[444] The methodology employed by the ABS-NL was different. It compared the
following three scenarios:
1. Travel ban in place, with 1000 exempted travelers per week entering NL
(baseline)
2. Travel ban lifted and non-resident travel to NL resumes at typical levels
(100% travel volume)
3. Travel ban lifted and non-resident travel to NL resumes at 50% of typical
levels

[445] This simulation considered two possible infection rates for travelers: 0.03%
and 0.1%. It further assumed that 75% of travelers would abide by the requirement
of a 14-day self-isolation upon arrival in the province and that one half of those who
initially did not self-isolate would choose to self-isolate when they became
symptomatic.

110

Rahman Affidavit, Tab 2, at p. 20.

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[446] The ABS-NL model found that:
At 100% travel volume, the best case (0.03% infected travelers) has 5x more peak
infections than the worst case of the travel ban (0.1% infected); the worst case
(0.1% infected travelers) yields 20x more infections than either scenario of the
travel ban. Similar results are observed for the half travel volume scenarios, though
at smaller magnitudes: The lifted travel ban scenarios are three- and six-fold worse
than the travel ban for 0.03% and 0.1% of travelers infected, respectively.111

[447] Dr. Rahman concludes that “[t]he results from our simulation modelling
demonstrates that travel restrictions significantly reduced the COVID-19 spread in
the population”.112

[448] While the Respondents bear the onus, no evidence has been adduced to
counter this conclusion, nor to impugn the methodology of Dr. Rahman and the
predicative analytics group. The Applicants simply point to the number of
exemptions in support of the argument that there is no rational connection between
the travel restriction and spread of COVID-19. This argument is speculative and
contrary to the modelling evidence.

[449] In any event, the baseline adopted in the ABS-NL simulation is 1,000
exemptions per week. I am satisfied that even with such a large number of
exemptions the simulation still demonstrates that the travel restriction significantly
reduces the spread of COVID-19.

[450] Furthermore, the number of exemptions remains small when compared to the
well over 500,000 visitors received by the province annually113. Between 4 May and

111

Rahman Affidavit, Tab 2, at p. 33 of 84.

112

Rahman Affidavit, Tab 2, at p. 3.

113

Rahman Affidavit, Tab 2, at p. 36.

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2 June 2020, 4,537 exemptions were granted.114 If this rate were to continue for the
entire year, there would still be a reduction in the number of visitors in excess of
90%.

[451] Based on the evidentiary record, and the uncontradicted evidence of Dr.
Rahman, in particular, it is beyond argument that travel restriction is an effective
means for reducing the spread of COVID-19 in Newfoundland and Labrador. The
travel restriction is rationally connected to its objective.

That the Means Chosen Interfere as Little as Possible with the Protected Right

[452] This component of the Oakes test requires that the law not impair the right
any more than is necessary to achieve its desired objective.

[453] The fact that the travel restriction is rationally connected to reducing the
spread of COVID-19 in this province does not necessarily mean that it is the least
drastic means for doing so. Here, as throughout the s. 1 analysis, the onus is on the
Respondents to establish that the other measures taken are not an effective substitute
for the travel restriction, or that the travel restriction itself cannot be tweaked to
accommodate a less intrusive infringement on mobility.

[454] The Court is required to inquire into whether there are reasonably feasible and
less impairing alternatives to achieve the same objective. At the same time the
CMOH must be afforded a degree of flexibility in crafting a solution to the spread
of COVID-19. As Justice LaForest explained in Videoflicks Ltd. (at para. 214):
Given that the objective is of pressing and substantial concern, the Legislature must
be allowed adequate scope to achieve that objective. It must be remembered that
the business of government is a practical one. The Constitution must be applied on
a realistic basis having regard to the nature of the particular area sought to be

114

Fitzgerald Affidavit, Tab 18, at para. 4.

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regulated and not on an abstract theoretical plane. In interpreting the Constitution,
courts must be sensitive to what Frankfurter J. in McGowan, supra, at p. 524 calls
"the practical living facts" to which a legislature must respond. That is especially
so in a field of so many competing pressures as the one here in question.115
[emphasis added]

[455] The Court must tread carefully when conducting this analysis as, with the
benefit of hindsight, it is always possible for imaginative counsel to posit
alternatives. As Justice Binnie observed in Newfoundland (Treasury Board) v.
N.A.P.E, 2004 SCC 66 “resourceful counsel, with the benefit of hindsight, can
multiply the alternatives” (at para. 96). This is particularly true when it comes to the
management of a public health emergency such as COVID-19.

[456] It is at this point that I digress briefly to consider the role of deference to the
CMOH and the institutional capacity of the Court.

[457] I am mindful of the fact that while travel restriction has legal force, it is in
essence a medical decision directed towards protecting the health of those in this
province. The qualifications of the CMOH to make this decision are not challenged.
Furthermore, in the exercise of her authority the CMOH draws upon specialized
resources at her disposal. This team approach is conducive to informed decision
making based on the best medical evidence available.

[458] To this I would add that the courts do not have the specialized expertise to
second guess the decisions of public health officials.

[459] In the context of the COVID-19 pandemic Chief Justice Roberts of the
Supreme Court of the United States, for the majority, had the following to say
regarding deference and the role of the judiciary (South Bay United Pentecostal

115

R. v. Videoflicks Ltd., [1986] 2 S.C.R.713, at para. 214.

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Church et al v. Gavin Newsom, Governor of California, et al., No. 19A1044 (USSC)
at p. 2):
The precise question of when restrictions on particular social activities should be
lifted during the pandemic is a dynamic and fact-intensive matter subject to
reasonable disagreement. Our Constitution principally entrusts “[t]he safety and
the health of the people” to the politically accountable officials of the States “to
guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When
those official “undertake [ ] to act in area fraught with medical and scientific
uncertainties,” their latitude “must be especially broad.” Marshall v. United States,
414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should
not be subject to second-guessing by an “unelected federal judiciary,” which lacks
the background, competence, and expertise to assess public health and is not
accountable to the people See Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, 545 (1985).

[460] The Applicants acknowledge that while some measure of deference to the
decision of the CMOH is appropriate, the court must not abdicate its responsibility
as guardian of the Constitution and rule of law. I agree.

[461] The Applicants also argue that while the case law supports deference to the
provincial legislature, in this case the travel restriction was implemented by a
“single, unelected individual”, and that special measures, (the travel restriction in
this context) are neither debated nor approved by the legislative assembly.

[462] With respect, this argument ignores two key considerations; first, it was the
legislature that saw fit to bestow the special measures powers on the CMOH in the
first place; second, these powers are only activated in times of a declared public
health emergency. On such occasions there may be little time for legislative debate,
assuming of course that the emergency was such that the legislature could convene
to do so in the first place.

[463] I accept the Applicant’s argument that the pandemic is not a magic wand
which can be waved to make constitutional rights disappear and that the decision of
the CMOH is not immunized from review.

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[464] However, it is not an abdication of the court’s responsibility to afford the
CMOH an appropriate measure of deference in recognition of (1) the expertise of
her office and (2) the sudden emergence of COVID-19 as a novel and deadly disease.
It is also not an abdication of responsibility to give due recognition to the fact that
the CMOH, and those in support of that office, face a formidable challenge under
difficult circumstances.

[465] The Applicants argue that while a least drastic measure is often left to be
imagined by the Court, in this case a less drastic measure was in place prior to the
travel restriction. Namely, the requirement in the special measures order of 20
March 2020 that those entering the province self-isolate for a period of 14 days.
Other less drastic means could include tailoring the travel restriction to target
individuals who are “exposed to enhanced risks based on their means of travel into
the province” or to individuals who have “not been engaged in a prolonged period
of self-isolation in their home province or territory”.116

[466] In considering whether or not the travel restriction could have been less
intrusive, the Court must exercise caution in recognition of the fact that the public
health response to COVID-19 is ever evolving. The implementation of the travel
restriction must be gauged from the circumstances as they existed at the end of April
2020 and what was known about COVID-19 at the time.

[467] I am reminded at this juncture of the evidence of Dr. Wilson and the
precautionary principle in public health decision making. In the context of the
COVID-19 pandemic, with the prospect of serious illness or death, the margin for
error is small. In such a circumstance, the public health response is to err on the side
of caution until further confirmatory evidence becomes available; the precautionary
principle. Applying public health measures across the population is often a more
effective means than trying to target smaller at risk sub groups. “Public health goals

116

Brief of the Second Applicant, page 26.

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are rarely achieved through single actions or simple tools. A range of mechanism
may be employed, depending on the health problem and context.”117

[468] Dr. Wilson concluded her report:
Intervening at a population level to address an important public health problem is
rarely a simple prospect, usually requires multiple approaches, and may
simultaneously be perceived as too much or too little by different sections of
society. However, the more serious the consequences of under-reaction, the more
that decision-making is likely to be driven by the precautionary principle: in the
absence of clear evidence, use best judgement to prevent potential harm.118

[469] There is no simple one size fits all solution to the effective management of a
pandemic such as COVID-19. A variety of public health measures are required in
combination. Dr. Rahman explained the challenge facing public health officials:
A multi-pronged provincial approach that will address control of importation of
COVID-19, enhanced testing, rapid case identification and contact tracing along
with strategies to maintain physical distancing will undoubtedly lead to the best
health outcomes. However, the relative prioritization of each of these measures will
differ across provinces, due to regional differences in infection levels and disease
spread, vulnerability of the provincial populations, and regional characteristics that
influence the effectiveness of public health measures.119

[470] By the end of April 2020 the travel restriction was one of a number of special
measures implemented by the CMOH in an effort to arrest the spread of COVID-19.
The province was, at that time, in a virtual state of lockdown with the closure of
institutions, and non-essential business. With few exceptions individuals entering
the province were required to self-isolate for 14 days. Enhanced testing for COVID19 was available to those with symptoms of the disease. Social distancing of six feet

117

Wilson Affidavit, at p. 3.

118

Ibid, at p. 5.

119

Rahman Affidavit, Tab 2, at p. 5-6.

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was, and remains the rule. Public health officials employed contact tracing as a
means of tracking the infection in the population.

[471] In short, the public health approach to COVID-19 was (and remains)
multipronged. While other measures are being taken to combat the spread of
COVID-19, I am satisfied on the evidence presented that none of these, taken
together or in isolation, is an effective substitute for the travel restriction. Let me
explain.

[472] Self-isolation is relied upon heavily by the Applicants as obviating the need
for the travel restriction. Indeed, self-isolation is shown to be effective when those
required to do so actually self-isolate. However, in reality not all those required to
self-isolate actually comply.

[473] By the time the travel restriction was implemented the CMOH had received
complaints of non-compliance from individuals and businesses. Marine Atlantic had
confirmed the arrival of travelers with a return date inside the required 14 day selfisolation period. Between 22 March 2020 and 5 May 2020 some 3,453 public reports
and emails were received. While no charges were laid, public health officials
became aware of 989 complaints that individuals were not complying with selfisolation requirements.120

[474] Studies in the UK have shown that 75.1% of those with COVID-19 symptoms,
or with a household member with symptoms, failed to self-isolate as required. That
said, the ABS-NL study assumed a much higher rate of self-isolation than that found
in the UK. Yet, there was a considerable increase in COVID-19 if the travel
restriction was lifted. The rationale for non-compliance was explained by Dr.
Rahman:
We assume that 75% of travelers follow the stated requirement of a 14-day selfisolation upon arrival in NL, and that 50% of those who did not self-isolate will

120

Fitzgerald Affidavit, at para. 69, Tab 18, para. 13.

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choose to self-isolate when they become symptomatic. The reason for these
seemingly low behavior probabilities is that once a person has committed the time
to travel to NL and likely have a fixed date of return, they are less incentivized to
spend their time in NL in isolation. Similarly, exempted travelers ostensibly have
urgent matters to attend to in NL, and will likely not be dissuaded from pursuing
their original agendas by non-severe symptoms.121

[475] Monitoring for self-isolation is complicated by the fact that with a diverse
population over a vast geographical area, it is impossible to monitor compliance on
a large scale. This is true even with the travel restriction in place. I am satisfied that
removing the restriction and opening the province to an influx of visitors, most of
whom arrive in the summer, would render effective monitoring for compliance
impossible.

[476] Once again, it is worth remembering that when the travel restriction was put
in place our nearest neighbor, Nova Scotia, was seeing new cases daily and was in
the midst of an outbreak at a long term care facility in the Halifax metro region.

[477] Self-isolation can be effective, but I am satisfied that it is not a viable
substitute for the travel restriction.

[478] A further alternative is to test all incoming travelers. However, the false
negative rate for COVID-19 can be as high as 30%. As Dr. Fitzgerald explained,
testing cannot be relied upon:
Testing alone would not be sufficient to combat the spread of COVID-19. We
cannot rely on testing to reduce importation risk. Testing is a point in time result. It
can take time for an infected person to develop enough virus in their system to
produce a positive result and could result in a negative test in a pre-symptomatic
person. This can lead to a false reassurance and the unintentional spread of disease.
The course of the disease can also affect the test result as early in the disease course
the virus tends to be in the nasopharynx (nasal passages) and can be more prominent

121

Rahman Affidavit, Tab 2, at p. 32 of 84.

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in the lungs later in the disease course. A nasopharyngeal swab (one done through
the nose) may not pick up the virus if the person now has mainly lower respiratory
tract (lungs) symptoms. Additionally, the quality of the sample is user dependent
and, if not taken properly, can produce in a false negative test result.122

[479] I accept that testing is not an effective substitute for the travel restriction.

[480] A further tool in the arsenal of public health officials is contact tracing. Dr.
Fitzgerald explains contact tracing as:
… the process of identifying, assessing, and managing people who have been
exposed to a disease to prevent onward transmission. When systematically applied,
contact tracing will break the chains of transmission of COVID-19 and is an
essential public health tool for controlling the virus”.123

[481] The utility of contact tracing lies in its ability to contain infection by
preventing onward spread. Contact tracing does not prevent the importation of
COVID-19. However, it can be a very effective tool when used in conjunction with
the travel restriction, which:
…not only reduce the risk of COVID-19 entering the province, but they also reduce
the number of people entering the province, which allows public health to better
monitor and follow new arrivals as well as act more rapidly in the event of an
outbreak. With travel restrictions in place, public health can conduct contact tracing
with better ease and track people coming in to the province to ensure they are
following an approved self-isolation plan.124
[emphasis added]

122

Fitzgerald Affidavit, at para. 103.

123

Ibid, at para. 37.

124

Fitzgerald Affidavit, at para. 93

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[482] When it comes to reducing the risk of COVID-19 through importation, I am
satisfied that self-isolation, testing and contact tracing, either together, or in
isolation, are not a reasonable substitute for the travel restriction.

[483] In continuing the least drastic means analysis I observe that the travel
restriction did not impose a blanket ban on all travel, but admitted of exemptions.
These included residents of Newfoundland and Labrador, certain asymptomatic
workers, those requiring the support of family or to care for family members, those
permanently relocating to the province, completing a contract or education, and
complying with custody, access or adoption, for example.125

[484] Dr. Fitzgerald explains that the travel restrictions are aimed at non-essential
travel:
The intent of the travel restrictions was not to prevent people from returning to the
province if they were unemployed, intending to work in Newfoundland and
Labrador, or returning to take care of a loved one. The intent is to prevent those that
do not need to travel to Newfoundland and Labrador during the pandemic. The
travel ban will help prevent the unnecessary spread of the disease by tourist or
seasonal vacationers that may be carrying the virus from entering the province by
controlling importation. Furthermore, travel itself is a high-risk activity for the
transmission of COVID-19. Non-essential travel places Newfoundland and
Labrador at greater risk of those unknowingly carrying the virus to the province as
well as those unknowingly catching the virus while travelling to the province.126
[emphasis added]

[485] The COVID-19 pandemic presents as a moving target and as a consequence
the necessity of the travel restriction is regularly reassessed127. Further, the travel
restriction provides for an exemption process for considering those with extenuating
circumstances, not previously contemplated. The travel request exemption team
125

See SMO Amendment No. 11 and Travel Exemption Order dated 5 May 2020.

126

Fitzgerald Affidavit, at para. 102.

At the time of writing, for example, the province has opened travel to those in Atlantic Canada. The “Atlantic
Bubble” as it is commonly known.
127

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consults with the public health team and the CMOH to determine the disposition.
Non-residents who are denied an exemption also have recourse to an appeal process,
and within seven days may apply for a reconsideration by the CMOH. Ms. Taylor
in fact did so, after which she was granted an exemption to travel to the province.

[486] Based on the foregoing evidence I am satisfied that an enemy as resilient as
COVID-19 will not be kept in check through the approach advocated by the
Applicants. The task of wrestling this disease into submission is no easy feat and is
one that requires a dynamic and multipronged approach. The travel restriction is
integral to that approach. I am thus satisfied that the least drastic means component
of the Oakes test has been satisfied.

[487] For the foregoing reasons I am also satisfied that there has been no violation
of s. 13 of the PHPPA.

Do the Statutory Effects of the Measure outweigh its Deleterious Effects?

[488] This stage involves balancing the objective sought by the travel restriction
with the infringement on mobility. Arguably, this has already been done in
determining whether the impugned objective is sufficiently pressing to warrant
overriding the Charter right.

[489] The application of s. 1 in this instance involves a balancing of mobility rights
with protection of the health of the population. The Respondents reference the U.S.
Supreme Court decision in Henning Jacobson, Plff. In Err. v. Commonwealth of
Massachusetts, 197 U.S. 11(1905) as illustrative of a circumstance where individual
rights were found to give way to the common good. At issue was a constitutional
challenge to a law passed by Cambridge, Massachusetts, imposing compulsory
smallpox vaccinations in response to an increase in that disease in the city.

[490] In response to the argument that compulsory vaccination is “hostile to the
inherent right of every freeman to care for his own body and health in such a way as

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to him seems best”, the court observed that real liberty could not exist in a
circumstance where each individual operates regardless of the injury that may be
done to others, and “there are manifold restraints to which each person is necessarily
subject for the common good” (at p. 6).

[491] This step in the proportionality analysis asks whether the harm done by
restricting travel to the province outweighs the benefit to the public gained through
the prevention, or at least reduction of COVID-19 in the province. To ask the
question, is to answer it.

[492] While restrictions on personal travel may cause mental anguish to some, and
certainly did so in the case of Ms. Taylor, the collective benefit to the population as
a whole must prevail. COVID-19 is a virulent and potentially fatal disease. In the
circumstances of this case Ms. Taylor’s Charter right to mobility must give way to
the common good.

Conclusion with Respect to Section 1 of the Charter

[493] In conclusion, I am satisfied based on the evidence presented that the travel
restriction represents a reasonable limit on Ms. Taylor’s right to mobility, as
demonstrably justified in a free and democratic society.128

128

This conclusion is also sufficient to meet the requirement of s. 13 of the PHPPA.

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IF SECTION 28(1) OF THE PHPPA IS BEYOND THE LEGISLATIVE
COMPETENCE OF THE PROVINCE, OR THERE IS A VIOLATION OF
MS. TAYLOR’S CHARTER RIGHTS THAT CANNOT BE JUSTIFIED BY
SECTION 1, SHOULD ANY DECLARATION OF INVALIDITY BE
TEMPORARILY SUSPENDED?

[494] It is not necessary to answer this question in light of my conclusion that s.
28(1)(h) of the PHPPA is a valid law, and that the infringement of Ms. Taylor’s right
to mobility was justified under s. 1 of the Charter in response to the COVID-19
pandemic.

CONCLUSION

[495] The CCLA is granted public interest standing to challenge s. 28(1)(h) of the
PHPPA and travel restriction as contrary to the Charter. The intended challenge to
ss. 28.1 and 50(1) of the PHPPA is non-justiciable on the record before the Court
and the CCLA is denied standing to bring this portion of its claim.

[496] Section 28(1)(h) of the PHPPA is within the legislative competence of the
province as a public health measure falling under the province’s authority over
matters of a local or private nature in the province under s. 92(16) of the Constitution
Act, 1867. In the alternative, s. 28(1)(h) of the PHPPA falls within the province’s
authority over property and civil rights under s. 92(13).

[497] The decision to deny Ms. Taylor entry into the province in accordance with
the travel restriction served to violate Ms. Taylor’s right to mobility as guaranteed
by s. 6(1) of the Charter.

[498] Ms. Taylor’s right to liberty as guaranteed by s. 7 of the Charter was not
engaged.

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[499] The infringement of Ms. Taylor’s Charter right to mobility was justified
under s.1 of the Charter in response to the COVID-19 pandemic.

[500] I would thus answer the questions raised in this case, as follows:
1.

Question:
Should the CCLA be granted public interest standing?
Answer:
Yes, with respect to the challenge to s. 28(1)(h) of the PHPPA and the
travel restriction. No, with respect to the challenge to ss. 28.1 and
50(1) of the PHPPA.

2.

Question:
Is s. 28(1)(h) of the PHPPA within the legislative competence of the
province?
Answer:
Yes.

3.

Question:
Did the travel restriction violate Ms. Taylor’s right to mobility as
guaranteed by s. 6 of the Charter?
Answer:
Yes.

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4.

Question:
Did the travel restriction violate Ms. Taylor’s right to liberty as
guaranteed by s. 7 of the Charter?
Answer:
No.

5.

Question:
If Ms. Taylor’s Charter rights were infringed, is the infringement
justified under s. 1 of the Charter, in response to the COVID-19
pandemic?
Answer:
Yes.

6.

Question:
If s.28(1)(h) of the PHPPA is beyond the legislative competence of the
province, or there is a violation of Ms. Taylor’s Charter rights that
cannot be justified by s. 1, should any declaration of invalidity be
temporarily suspended?
Answer:
No answer is required.

[501] The Application is dismissed and the Applicants’ request for declaratory relief
denied.

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COSTS

[502] The within matter has brought to the fore several novel and important
constitutional questions. Under the circumstances, while the Respondents were
ultimately successful, each party will be responsible for their own costs.

_____________________________
DONALD H. BURRAGE
Justice