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Change Bill 38, says the Canadian Bar Association – Newfoundland and Labrador

Premier Dwight Ball.
Premier Dwight Ball. - David Maher file photo/The Telegram

Progressive Conservative Leader Ches Crosbie says the House of Assembly must reopen to fix Bill 38, ahead of a looming lawsuit against the province.

The bill, passed earlier this month, allows the enforcement of the travel ban on people entering the province.

A letter from the Canadian Bar Association – Newfoundland and Labrador (CBA-NL), sent to party leaders on Saturday, says there are a number of issues with the law that need sorting out. The letter, signed by CBA-NL president Christian Hurley and vice-president Greg French, says the changes brought by the bill go beyond the purpose of the law.

“We understand that the amendments to the act are in relation to the current COVID-19 pandemic and in particular the travel ban imposed by special measure on May 4, 2020. However, the statutory amendments ultimately stand on their own, and are broader in application and scope,” reads the letter.

“These amendments extend well beyond the stated purpose for which they were said to be passed. For instance, it suggests that anyone who contravenes the act can be detained or taken to a point to entry, regardless of the nature of the offending conduct, and without regard to whether the 'offender' is normally a resident of Newfoundland and Labrador. The amendments extend well beyond the limited purpose of enforcing the entry ban.”

A lawsuit is expected to be filed this week, as reported by the CBC, by the family of a person who was unable to re-enter the province to attend her mother’s funeral due to the travel restrictions.

Crosbie says airports and Marine Atlantic are refusing to put people back on airplanes and ferries, as the legal right to travel enshrined in the Charter of Rights and Freedoms protects people's movement within Canada.

“If you’re policing road crossings of borders, you can stop people and tell them to turn around,” said Crosbie.

“But if you’re trying to enforce entry at points of entry at airports and ferry terminals, what are you going to do with them? The carriers are refusing to take them back. Let me put it this way: if a person says no, I’m not going back, the government here has no authority to make them go back. Where does that leave you?”

The bill was passed with full support of the legislature, including the PC party. Crosbie says he was given assurances there would be more exemptions for people returning to the province for family reunification, but those assurances haven’t come to be.

Premier Dwight Ball says he’ll leave it to the Department of Justice and public health officials to answer the lawsuit.

“Understanding where we are with the state of emergency and some of the difficult decisions that would have been made, it’s about finding a balance between the proper legislation and the proper measures that would have been put in place,” Ball said at Tuesday’s COVID-19 update.

“Justice and Public Safety, along with public health officials, once I understand there will be a statement of claim filed, they will respond appropriately when the time is right. Once again, I do send out my condolences and sympathies to those families who are impacted.”

Ball left it to the House leaders of the respective parties to call the next session of the House of Assembly.

Justice Minister Andrew Parsons has yet to make a public comment on the law.

Another problematic measure identified in the letter is the ability of public health officers to enter a home without a warrant, outlined in Section 50 of the Public Health Protection and Promotion Act amended by Bill 38.

“Case law is clear that a warrantless search is unconstitutional unless justified by the party conducting the search,” reads the letter.

“This would require, at the very least, reasonable grounds to believe an offence has taken place, or else there must be exigent circumstances justifying the failure to comply with judicial authorization. We are concerned again about the lack of oversight in the exercise of these powers.”

The letter concludes with a call to change the law.

“We realize that this is a challenging time and that during the province’s public health emergency the safety of residents of Newfoundland and Labrador is of the utmost importance. However, we must also recognize the rights extended under the charter and ensure that during this unprecedented time the appropriate balance is achieved between public health and the constitutional rights of all Canadian citizens (as well as non-citizens),” reads the letter.

“We ask that you immediately review the amendments to the act to address the challenges as outlined above.”

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