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Newfoundland and Labrador's COVID-19 travel ban arbitrary, unlawful and 'over the top,' lawyers argue

Lawyers (L-R) Mark Sheppard, Justin Mellor and Don Anthony, who are representing the provincial government and Chief Medical Officer of Health Dr. Janice Fitzgerald in a legal challenge of the COVID-related travel ban, sit to await Justice Donald Burrage after a recess in Newfoundland and Labrador Supreme Court Tuesday morning. Behind them is lawyer Rosellen Sullivan, who is representing the Canadian Civil Liberties Association in the challenge.
Lawyers (L-R) Mark Sheppard, Justin Mellor and Don Anthony, who are representing the provincial government and Chief Medical Officer of Health Dr. Janice Fitzgerald in a legal challenge of the COVID-related travel ban, sit to await Justice Donald Burrage after a recess in Newfoundland and Labrador Supreme Court Tuesday morning. Behind them is lawyer Rosellen Sullivan, who is representing the Canadian Civil Liberties Association in the challenge. — Tara Bradbury

Closing submissions in legal challenge of the restrictions is expected to conclude today

“We live in weird times,” lawyer John Drover told the court in St. John’s Tuesday. “No doubt about it. But this is over the top.”

Drover delivered his closing arguments to Justice Donald Burrage of the Supreme Court of Newfoundland and Labrador in a legal challenge of the provincial government’s COVID-19-related travel ban, submitting the province does not have the authority to implement a ban on incoming travellers. It has essentially put up international borders without a right to do so, Drover argued.

“Do we live in the Republic of Newfoundland or do we live in Canada? We live in Canada and the government of Newfoundland and Labrador has to make its laws according to that.”

Drover is challenging the travel ban on behalf of Kim Taylor, a Halifax resident and native Newfoundlander who was denied entry to this province for her mother’s funeral in the spring. The province reversed its decision in her case and granted her an exemption to the travel ban 11 days later.


“It’s almost a discrimination case. It is... I have a colleague from Cape Breton who told me they just went home and came back and there were two lines at the airport, one for Newfoundland and Labrador residents and one for everyone else. If you weren’t from here, you had to show your papers.” — Lawyer John Drover, representing Kim Taylor


The province’s Chief Medical Officer of Health, Dr. Janice Fitzgerald, issued the ban as a special measure under the Public Health Protection and Promotion Act on April 29, in response to the COVID-19 pandemic. It bars all but permanent residents, asymptomatic workers and those granted exemptions from entering the province and was amended a month ago to include residents of the Maritimes as part of the “Atlantic bubble.”

Drover and lawyer Rosellen Sullivan, who is representing the Canadian Civil Liberties Association, are arguing the travel ban is a breach of Canadians’ protected mobility rights and asking for a declaration that it is unconstitutional. Section 6 of the Canadian Charter of Rights and Freedoms gives Canadian citizens and permanent residents the right to enter, remain in and leave the country, and the right to move to and work in any province.

“It’s almost a discrimination case. It is,” Drover said. “I can go to almost every province and come back. I have a colleague from Cape Breton who told me they just went home and came back and there were two lines at the airport, one for Newfoundland and Labrador residents and one for everyone else. If you weren’t from here, you had to show your papers.”


Lawyers Rosellen Sullivan and John Drover are challenging the province's COVID-19-related travel ban on behalf og the Canadian Civil Liberties Association and Newfoundland native Kim Taylor of Halifax. They presented their closing arguments in the challenge on Tuesday. — Tara Bradbury
Lawyers Rosellen Sullivan and John Drover are challenging the province's COVID-19-related travel ban on behalf of the Canadian Civil Liberties Association and Newfoundland native Kim Taylor of Halifax. They presented their closing arguments in the challenge on Tuesday. — Tara Bradbury

Drover and Sullivan argued the arbitrariness of the travel ban, with Sullivan pointing out there have been more than 13,600 exemptions granted since the beginning of May. Among those who have been given exemptions are people who are coming to care for a seriously ill family member and people who are seriously ill themselves — people who would be at a higher risk of catching and transmitting the coronavirus, Sullivan said.

“Once you allow all these exemptions, you’re watering down the justification for the travel ban in the first place,” she said. She spoke hypothetically to the judge, saying in Taylor’s case, if her sister from St. John’s could have visited her in Halifax and stayed with her for weeks before their mother died then returned here on the same plane, she would have been allowed to enter while Taylor would not have, despite having a “rock solid isolation plan.”

The purpose of the ban, Sullivan said, quoting from Fitzgerald’s affidavit, is to minimize serious injury and death. At the time the ban was issued, 225 of the 258 cases of the virus here had been resolved; 178 of those were related to a wake at Caul’s Funeral Home, at a time when travellers were not required to self-isolate for two weeks upon entry.

Ninety-seven per cent of local cases were not linked to community spread, Sullivan said, using numbers from Fitzgerald’s testimony.

Fitzgerald had not sought advice from either of three medical experts for the province who testified in court, Sullivan pointed out, nor was any modelling done on the potential impact of the travel ban before it was implemented.

“The information that they did have did not support the decision,” she told the judge.

Fitzgerald told the court on Friday there is information to suggest the travel ban would be an effective measure to help prevent the spread of COVID-19 when combined with other public health actions, like handwashing and social distancing.

Lawyer Justin Mellor, who is representing Fitzgerald and the provincial government with co-counsel Don Anthony and Mark Sheppard, began his arguments Tuesday afternoon. He said the province had the authority to issue the travel ban since it’s a matter of public health and he reminded the court of the evidence presented by Dr. Proton Rahman, an epidemiologist tasked with modelling COVID-19 infection scenarios for the province.

Rahman testified he had been asked to model the potential effects of the travel ban in preparation for the court case.

Rahman said the number of cases of COVID-19 here could be up to 20 times higher without the travel ban and spoke of a recently-published study he had conducted with researchers from Stanford and Oxford universities, examining Newfoundland and Labrador’s response to the pandemic.

“Relaxing travel restrictions is a highly contentious political decision,” the study reads. However, from an outbreak dynamics perspective, the picture is quite clear: without proper control, an influx of infected travellers can easily become the seed for a new exponential outbreak.”

Closing arguments will continue Wednesday.

The province currently has two confirmed active COVID-19 cases, both individuals from outside the province who were granted exemptions from the travel ban. To date, 263 people have recovered from the virus. Three have died.

With files from David Maher

Twitter: @tara_bradbury


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