Taylor v Her Majesty the Queen: The Applicant’s had “Bigger Fish to Fry”

The COVID-19 pandemic has raised a number of concerns about civil liberties and the extent to which they can be curbed to slow the spread of the virus. On one hand is the perspective that rights and freedoms ought to be restricted for a time so as to limit the number of people that are exposed to COVID-19 and become seriously ill or die. On the other hand, is the argument that whatever can be done to curb COVID-19 without encroaching on an individual’s rights and freedoms must be done as opposed to other measures that may impair a right or freedom more broadly. This debate has become intensified as cases continue to rise across the country and talks of a more widespread lockdown renew. Taylor v Her Majesty the Queen, 2020 NLCS 125 joins this debate by offering what may be one of the first cracks at possible litigation about how far the government can go in the name of a public health crisis. This trial court decision from Newfoundland and Labrador in particular gives us some insight as to the importance of both the province’s authority in protecting public health and the minimal impairment analysis as per s. 1 of the Charter of Rights and Freedoms (“the Charter”) in future cases.

Facts

On April 29th, 2020, the Chief Medical Officer of Health (CMOH) issued a special measure order to restrict entry into Newfoundland, save for residents, asymptomatic workers, and those with extenuating circumstances. The travel restriction took place on May 4th, 2020 and shortly thereafter, Kimberly Taylor applied to return to Newfoundland after the sudden passing of her mother. As she waited for a response, Taylor arranged for a place to stay to complete her 14-day self-quarantine and researched flights with the intention to book. After not hearing back, Taylor sent another email to check the status of her application and was informed later that day on May 8th that her application was denied. On May 14th, Taylor asked for reconsideration within the 7-day allowance period and was granted permission to enter Newfoundland on May 16th

In her application to the court, Taylor did not challenge the decision of the CMOH, rather she challenged the constitutionality of s. 28(1)(h) of the Public Health Protection and Promotion Act, NLR ch. p-37.3 (“PHPPA”). It is this subsection that grants the CMOH the authority to “make orders restricting travel to or from the province or an area within the province.” Taylor argued that the province was ultra vires as it encroached on two federal heads of power, interprovincial works and undertakings and naturalization and aliens [ss. 91(10) and 91{25)]. Moreover, Taylor argued that s. 28(1)(h) violated her rights to mobility and liberty guaranteed by ss. 6 and 7 of the Charter respectively and these infringements cannot be saved by s. 1.

The government argued that they have the authority to enact s. 28(1)(h) of the PHPPA because it falls under a provincial head of power, either property and civil rights or matters of a local and private nature [ss. 92(13) and 92(16)]. The province also states that Taylor’s s. 6 mobility rights were not infringed and that s. 7 does not apply to the facts of this case.

The trial court judge was asked to answer six questions, four of which are most pertinent to the outcome of the case:

1) is s. 28(1)(h) of the PHPPA within the legislative sphere of the province;

2) did the travel restriction violate Taylor’s right to mobility as per s. 6 of the Charter;

3) did the travel restriction violate Taylor’s right to liberty as per s. 7 of the Charter, and

4) can the infringement(s) be justified as per s. 1 of the Charter?

The Legislative Scheme

Briefly, s. 28(1)(h) of the PHPPA is part of the province’s wider legislative scheme to protect the health of citizens, particularly in the case of emergency. Section 9(2) gives the CMOH authority to “independently and impartially… (perform the duties) … in order to best protect and promote the health of the people in the province,” while s. 9(4) gives the CMOH the authority to do a number of expressed actions to maintain public health. Section 27(1) speaks specifically about the role of the CMOH during public health emergencies, with s. 28 empowering the CMOH to implement a number of special measures in the event of a public health emergency. One of the listed special measures is 28(1)(h).

 The Trial Judge’s Decision

There are a few interesting points to note in Justice Burrage’s opinion. The first is that the province’s legislative authority is prioritized in his analysis of the case. Second, he gives deference to the CMOH’s determination about how to best respond to the COVID-19 pandemic Newfoundland and Labrador. Finally, civil liberties as sacrosanct as mobility rights can be a breached to protect the health and safety of others during the pandemic.

Section 28(1)(h) is within Newfoundland’s Legislative Competence

Justice Burrage assessed both the purpose and legal effect of s. 28(1)(h) as part of his pith and substance analysis. The wider legislation has a clear purpose to protect and promote the health of the population. However, the legal effect is also clear, as it denies people the ability to enter the province as they please. That being said it also has the effect of reducing the spread of COVID-19. As a result, Justice Burrage affirms that the purpose is to protect the health of the population, warning that the purpose should not be confused with the means to achieve the purpose.

As for the head of power, public health is complicated because it is not expressly confined to one head of power. Taylor argued that the province is trying to enforce a law that is an interprovincial work and undertaking or naturalization and aliens. Justice Burrage disagreed stating that s. 28(1)(h) does not try to govern physical infrastructure that supports interprovincial trade, which is required for a “work,” nor does it empower the CMOH to regulate the business of interprovincial travel, an “undertaking.” He concedes, however, that by restricting the number of people that can enter the province, that may in turn affect the numbers of those that choose to leave, and as a result of its impact, be an “undertaking.” That impact, however, is incidental and not the purpose of the legislation. As for the naturalization and aliens, Justice Burrage similarly argues that any distinction between citizens as a result of s. 28(1)(h) is incidental to the law, not its purpose. Thus, the province is not impeding on either federal head of power. He also considered whether paramountcy is relevant as it relates to the federal government’s Quarantine Act SC 2005, c. 20. Since the Quarantine Act applies to international travelers as opposed to domestic travelers, the two can operate without issue.

As a result, Justice Burrage found that s. 28(1)(h) of the PHPPA is not ultra vires and falls under matters of a local and private matter [s. 92(16)] and, if not that, property and civil rights [s. 92(13)]. Given that different places have different needs and local variations in geography, population, healthcare capacity, and resources differ from jurisdiction to jurisdiction, he reasoned that localized responses are necessary.

Section 28(1)(h) breached s. 6 of the Charter, but it is justified by s. 1

The next issues that Justice Burrage considers are the Charter breaches. First is the right to mobility. Taylor argued that s. 28(1)(h) violated her mobility rights by refusing to let her travel to the province and the breach cannot be justified. Justice Burrage agreed that her right simpliciter, embodied in s. 6.1, was breached. However, he found that this breach was demonstrably reasonable.

Section 1 analysis

Justice Burrage found that limiting the number of people that can enter Newfoundland and Labrador during the COVID-19 pandemic to be a pressing and substantial objective of the government. Contrary to the perspective of the applicant, the travel restriction was not to flatten the curve, which was something that Taylor argued was already happening with prior measures such as social distancing and mandated masks. Rather, the restriction was to limit the importation risk as cases rose in other parts of the country. Citing expert testimony, Justice Burrage states that Newfoundland simply does not have the resources of other provinces and has an older, more vulnerable population. The most present risk to the population was someone coming in with the virus and spreading it. Thus, enacting s. 28(1)(h) was for a pressing and substantial purpose.

Justice Burrage found that s. 28(1)(h) is rationally connected, arguing that the law does not have to guarantee the goal, only further it. Taylor argued that other measures were the key to Newfoundland’s control of the COVID-19 pandemic, not the travel restriction. Moreover, with the number of travel exemptions, the restriction is rendered moot. Justice Burrage did not agree that the successful implementation of other measures meant that there was no reason for a restriction on travel. Therefore, the travel restriction is rationally connected to the goal of reducing the likelihood that COVID-19 will be brought in by travelers.

When considering whether s. 28(1)(h) is minimally impairing, Justice Burrage found it best to offer some deference to the determination of the CMOH. Citing Justice Bastarache in Harper v Canada (Attorney General), 2004 SCC 33 [“Harper”], Justice Burrage stated that there are four contextual factors that need to be considered when if and how much deference ought to be given to the CMOH in their decision-making:  1) the nature of the harm and the inability to measure it, 2) the vulnerability of the group, 3) the subjective fears and apprehension of harm, and 4) the nature of the infringed activity. Given the concerns about monitoring compliance with self-isolation, expert evidence modeling the potential of exponential spread of the virus in Newfoundland, and the ever evolving nature of the public health crisis, Justice Burrage found it best to err side on caution and accept the determination that there is no substitute for a travel restriction.

Finally, Justice Burrage considered whether the positive benefits outweigh the deleterious effects of s. 28(1)(h) to which he answered in the affirmative. Though he acknowledged that the personal mental anguish for Taylor was terrible, it does not outweigh the collective benefit of s. 28(1)(h) to the population as whole.

Section 28(1)(h) does not infringe s. 7 of the Charter

Interestingly, Justice Burrage found that s. 7 of the Charter was not infringed. Taylor argued that her right to liberty meant that she be allowed to travel to Newfoundland. In response, the government disagreed that s. 7 was available to her, arguing that it is not an amalgam and Justice Burrage agreed. Section 7 is not to capture rights that are already expressly written in the Charter as mobility rights are. Even if he were wrong, Justice Burrage stated that the importance of Taylor going to her mother’s funeral, though deeply personal to her, is not a personal right that is afforded the protection of the “principles of fundamental justice” standard.

Conclusion

The trial court in Newfoundland and Labrador was of the opinion that a law such as s. 28(1)(h) is within the right of provinces to pass and though it may push up against deeply important mobility rights, the fleeting breach was not outweighed by the very concerning COVID-19 pandemic. This case has some interesting insights but is not determinant as to how future cases may be decided. Had Taylor been unable to enter the province entirely, the analysis may have come to different outcome. Moreover, with different facts, s. 7 may be engaged. That being said, the case does suggest that provincial authority and minimal impairment may be very relevant in cases of this nature going forward. If a litigant is unable to make it over these hurdles, their success in the case may be quite dim.

The trial judge noted that the applicant had “bigger fish to fry” and it is true. Rather than challenge the decision of the CMOH vis-à-vis administrative law, Taylor wanted to end the travel restriction in its entirety through a constitutional challenge. The obvious reality that the COVID-19 pandemic has illuminated is that not only are our rights not absolute, they are flexible and responsive to emergency situations. The extent of its flexibility remains to be seen. Be on the lookout for other cases that may try to test it in the near future.

 

 

Kerry-Ann Cornwall

Kerry-Ann Cornwall

Kerry-Ann Cornwall is a second year JD/MBA student at Osgoode Hall Law School and Schulich School of Business. Kerry-Ann completed her Bachelor of Arts and Master of Arts, both in Political Science, at the University of Guelph. Her MA research project was about the role that international NGOs played in the development of Tunisia’s constitution following the Arab Spring revolution. At Osgoode Hall, Kerry is a Senior Editor for the Osgoode Hall Law Journal and works with the Privacy Law Society. Moreover, Kerry is the current National Chair of the Black Law Students’ Association of Canada. Kerry is interested in issues of privacy and data protection and management, as well as trusts, corporate, and constitutional law more broadly.

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