Authorities can't enter private property without a warrant, but this defence lawyer still has concerns

A St. John's criminal defence lawyer is raising concerns over the provincial government's Bill 38, which gives increased power to police officers to stop vehicles and search, detain and remove anyone from the province found not to be in compliance with current COVID-19 public health measures. 

Rosellen Sullivan says sections 8 and 9 of the Canadian Charter of Rights and Freedoms — the right to be secure against unreasonable search or seizure and the right not to be arbitrarily detained or imprisoned — immediately come to mind when hearing the amendment passed on Tuesday during government's first sitting in the House of Assembly since March 26 amid the pandemic.

"There's a constitutional minimum of reasonable grounds. These provisions seem to circumvent that," she said. "So I don't know how they can be justified, because that's the bare minimum. That's the standard."

On Monday, government closed the province's borders to all non-essential travellers and those who aren't primary residents, with some exemptions. 

The amendment also gives inspectors — designated under the Public Health Protection and Promotion Act and different from peace officers, according the Chief Medical Officer of Health Dr. Janice Fitzgerald — powers to enter any premises, take photos or video, take samples or conduct tests. It also allows them to inspect premises, processes, books and records.

When asked Wednesday to clarify if authorities can enter a private building without a warrant, Health Minister John Haggie simply said no. Haggie was less direct when asked if authorities have the right to force someone onto a plane or ferry to return to where they came from.

"I think if you want to discuss the the ability of the RCMP or the RNC then that would be something you should best address to them," he said. 

"The intent of the bill and the act that results from it is under the framework of a special measures order, under the state of emergency, that a person who does not fulfil the appropriate criteria laid out in the travel order would be denied entry to the province."

Sullivan said there appears to be no judicial oversight in the amendment, as seen in other pieces of legislation that give power to police.

"They're allowed to take a person, search them and then bring them to a point of exit. That person doesn't seem to have any recourse. It doesn't seem that way," she said.

"Perhaps the other provisions of the act, which allow an application to be brought to Supreme Court and wait for a judge to tell you, would still apply. But, practically, how does that get applied then?"

Haggie said the orders being issued are under unusual circumstances as part of a public health emergency, not a matter under the Criminal Code.

"They are framed under a special measures order and criteria under that, if anybody feels their rights have been abridged in any way, they have the right and the ability to go to court and challenge it," Haggie said. 

"And as one of my legal friends said, there is no law that can't be made better by a good court case."

Sullivan said the health minister's response isn't particularly helpful, and isn't fair to people who don't have the resources to take the matter to court.

"I mean, it's fine to be right, but I need you to tell me I'm right now, not in two years when my case gets heard in court," she said.

"The act has the provisions that [are] required. I don't think there's any need to extend police powers beyond what is already contemplated in the legislation, for a problem that may or may not exist."

Premier Dwight Ball said the method is a last resort. The amendment only stands until the public health emergency order is lifted. 

Mobility rights

Less than a day after Bill 38 passed through the House of Assembly, reporters pressed the provincial government for some clarification. 

Some people living outside of the province who have summer or vacation homes in Newfoundland and Labrador have been vocal about not being allowed to visit their own property. 

On Wednesday, Fitzgerald said nearly 500 applications for exemption of the travel ban have been submitted to government over two days. Applications that appear to be urgent are being handled first, she said. 

But applications from tourists, anyone who isn't relocating to the province permanently and anyone planning to travel just to spend time at a cottage, cabin or secondary home will not be approved, Fitzgerald added.

There's other things we can do without limiting people's ability to move, which is a constitutionally protected right.- Rosellen Sullivan

Sullivan said Section 6 of the Charter of Rights and Freedoms — protection of mobility rights — is a concern in that instance.

"If it is determined that the law is constitutional then we have to look at the breach. Does that breach a person's ability to travel inter-provincially? Then we have to look at things like, is the purpose rationally connected to the effect and is it proportional?" she said. 

"Presumably that person, who has a residence here, is going to come and self-isolate and still comply with the protocol. There's no reason that that person shouldn't have the ability to do that."

Haggie said other provinces, such as New Brunswick, have similar police powers in place and have only had to use them twice. 

Sullivan said that while other provinces may be doing it, it's a solution to a problem that doesn't exist. 

"There's other things we can do without limiting people's abilities to move, which is a constitutionally protected right."

Read more from CBC Newfoundland and Labrador