In Newfoundland and Labrador, a public health inspector can pull you over in your car and demand that you show him what’s on your cell phone. He can take any “copies, extracts, photographs or videos” that he feels are necessary. He can force a swab up your nose or demand a blood sample. And he doesn’t need a warrant.
If two ministers decide that you’ve contravened a public health measure, they can send a police officer to pick you up, imprison you, and then bring you to the provincial border to be expelled. You don’t get to go before a judge to challenge the decision.
Those are just some of the extreme actions that Newfoundland’s Public Health Protection of Promotion Act appears to say are legal, after amendments made earlier this month to deal with the Covid-19 emergency.
But can they really do that?
Rosellen Sullivan, a St. John’s criminal lawyer, says they cannot. Sullivan is part of a court challenge arguing that the law is unconstitutional.
Sullivan says that the provision of the act that says an inspector can search a person’s vehicle (or possibly a person’s home—it’s not particularly clear) violates section 8 of the Charter of Rights and Freedoms, which states that “everyone has the right to be secure against unreasonable search or seizure.” The Supreme Court of Canada said in the case Hunter v. Southam that the purpose of section 8 is to prevent unjustified searches before they happen.
“When you get a warrant, you have to give that judge an ‘information to obtain’ that outlines your reasonable grounds for believing that evidence will be found in that structure. A judge has to review all of this and sanction it,” Sullivan says. “You can (also) get judicial review of a warrant. So you’ve got two safeguards there. In this situation you’ve got none.”
“Even with a warrant, I can’t imagine what kind of warrant would allow someone to come into my home or my car to search my books, search my records, take some samples and do some tests on me,” Sullivan adds.
Sullivan says she’s concerned that the powers to search people without reasonable and probable cause could be especially hard on non-white Newfoundlanders, who face the risk of being racially profiled. “Newfoundland was until recently fairly Caucasian,” she says. “The gut reaction might be, ‘That person’s a visitor.’”
Sullivan says the provision that allows ministers to order police to “locate and detain a person” so that they can be kicked out of the province is a violation of the section 9 Charter right “not to be arbitrarily detained or imprisoned.”
Sullivan argues that the law’s provisions blocking non-residents from entering the province are also unconstitutional. Section 6 of the Charter states that “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.” Section 6 hasn’t been tested in court so it might not apply here. But even if it doesn’t apply, the Constitution Act, 1867 would likely prevent provinces from shutting their borders.
Section 1 of the Charter says that rights and freedoms can be limited by laws if the limits are “reasonable” and “demonstrably justified in a free and democratic society.” The court said in R v. Oakes that a law can only be justified if the means are rationally connected to the objective, if the limit is minimally impairing of the right, and if the negative effects of the measure and its positive effects are in proportion. A law’s means are not rationally connected to the goal if they are “arbitrary, unfair or based on irrational considerations.”
Sullivan says government officials appear to be arbitrarily deciding which residents can enter the province. For example, a Nova Scotia woman was recently blocked from attending her mother’s funeral, despite the fact that the woman was willing to self-quarantine for 14 days, and despite the fact that other people had been allowed into the province to attend funerals. These measures also appear irrational considering that Newfoundland and Labrador has experienced only three Covid-19 deaths despite thousands of residents having entered the province in recent weeks.
“It’s like killing a fly with a sledgehammer,” Sullivan says.