Nfld. & Labrador

American exemptions undercut senseless provincial border restrictions, lawyer says

Lawyers for two separate lawsuits challenging Newfoundland and Labrador's travel restrictions say a recent federal decision to allow American family members to enter Canada helps their cases.

Premier Dwight Ball says reuniting families is more important than seasonal cottages

St. John's defence lawyer Rosellen Sullivan is challenging the provincial government's travel restrictions with a lawsuit that claims it's unconstitutional. (Sherry Vivian/CBC)

Laywers for two separate lawsuits challenging Newfoundland and Labrador's travel restrictions say the provincial government's decision to allow American family members to enter Canada helps boost their cases, following a federal announcement earlier this week. 

On Monday, Prime Minister Justin Trudeau said immediate family members of citizens or permanent residents would be exempt from Canada's temporary deal with the United States banning non-essential travel, and would be permitted to cross the border.

Rosellen Sullivan said the addition of American citizens to the list of travel exemptions shows the rules do not apply logically and equally to everyone.

Sullivan represents the Canadian Civil Liberties Association in a lawsuit filed on behalf of a woman from Newfoundland who was initially denied entry for her mother's funeral.

"To make a distinction whether someone from New York who has family who wants to come home, versus someone in a jurisdiction that has no cases who wants to come home, then it's illogical," Sullivan told Radio-Canada.

While Premier Dwight Ball said reuniting families is more important than seasonal cottage owners, Sullivan said such distinctions are not based in science or health care.

Premier Dwight Ball says there is a difference between allowing seasonal home owners into the province, and allowing families to reunite. (Gary Locke/CBC)

A person from New York City can come to the province to see their family, for example, but a person from a Canadian province with no cases could be denied entry to stay on their own property.

Ball said Americans wishing to enter the province to see family members still have to apply for a travel exemption.

He said the applications will be assessed on the same criteria as all the other applications — a person must show they have an isolation plan and keep contact with public heath officials for 14 days.

Ball said about eight per cent of applications are denied.

Kim Taylor's request was denied when she first submitted it, but after speaking with CBC News and filing an appeal, she was allowed to travel to the province for the funeral.

Some reasons listed for exemptions are travelling to work in the province, moving here to retire, shared custody of a child in the province, and if a former resident has lost their job and is coming back to stay with family.

People from other Canadian provinces can also travel to Newfoundland and Labrador to be reunited with immediate family members. People with seasonal homes or businesses in the province cannot.

New exemption adds to arbitrary nature, lawyer says

The exemption for cross-border family reunification has not yet been added to the government's website.

Lawyer Geoff Budden is part of a class-action lawsuit for people who wish to return to Newfoundland and Labrador for a variety of reasons.

Budden said he'll wait until the rules are clarified before assessing how it could help his case, but said it couldn't hurt.

"It's peculiar," he said. "I'm not sure how what Premier Ball announced [Monday] will intersect with the policies that actually exist on paper. I guess we'll have to see what clarification emerges from that."

Geoff Budden is a civil lawyer based in St. John's who is part of a class-action lawsuit filed against the provincial government. (Marie Isabelle Rochon/Radio-Canada)

The arguments rest with Section 6 of the Canadian Charter of Rights and Freedoms, which says every Canadian has the right to enter and move within Canada.

The provincial government will likely argue its case using the wording in Section 1 of the charter, which states the "freedoms set out in it [are] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Budden says the travel restrictions seem too arbitrary to meet that standard.

"I think the strength of the argument generally is the plain wording of Section 6," Budden said. "And if the government is going to rely on Section 1 to save its policy, that policy has to be consistent with health care and has to be internally consistent. I do think, yes, this is yet another example of government policy being responsive to some daily story and not really evidence-based."

If the government was going to cave to a "daily story," Budden hoped it would have been their lawsuit. Absent of any major changes, he said, the plan is to forge ahead with the class action.

Ball told reporters on Monday that he never wanted it to be this way, and he understands the concerns of people denied entry to the province, but there are no plans to back down at this point.

"This is really not who we are as a province, I think everyone is aware of that," Ball said. "We would like to be in a position to bring those people back in but just not yet."

Read more from CBC Newfoundland and Labrador

With files from Patrick Butler

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