Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice, and provides Kelowna Capital News with weekly stories from the world of local, national and international law. (Contributed)

Kootnekoff: Travel restrictions – is public health’s statistical modelling flawed?

Susan Kootnekoff is the founder of Inspire Law, her diverse legal career spans over 20 years

Some Canadian provinces, including B.C., have enacted travel restrictions amid fears of covid-19.

In January, 2021, after seeking legal advice, B.C. premier John Horgan stated that “we can’t prevent people from travelling to British Columbia. We can impose restrictions on people travelling for non-essential purposes.”

In 2020, in Taylor v. Newfoundland and Labrador, the Newfoundland Supreme Court considered covid-19 related interprovincial travel restrictions.

In 2018, the province of Newfoundland and Labrador enacted the Public Health Protection and Promotion Act (the “PHPPA”).

S. 28(1)(h) of the PHPPA specifically authorized the provincial Chief Medical Officer of Health (“CMOH”) to “make orders restricting travel to or from the province or an area within the province.”

On May 4-5, 2020, in an effort to curtail the spread of COVID-19, the CMOH issued two orders under s. 28(1)(h). The orders were designed to prevent non-essential travelers from entering the province.

Kimberley Taylor, a Canadian citizen, was born and raised in Newfoundland. She lived in Nova Scotia with her spouse and children.

On May 6, 2020, her mother died suddenly in Newfoundland.

On May 6, 2020 Ms. Taylor requested an exemption from the travel restrictions, to attend her mother’s funeral.

She stated that she needed to grieve with her family.

On May 8, 2020, her request to enter the province was denied. No meaningful reasons were given.

On May 16, 2020, after Ms. Taylor requested a reconsideration, an exemption was granted, permitting her to enter the province.

Ms. Taylor challenged s. 28(1)(h) of the PHPPA as being a matter of federal, not provincial, jurisdiction.

She also challenged the decision denying her entry for 8 days on the basis that it infringed her rights to mobility protected by s. 6, and her right to liberty protected by s. 7, of the Canadian Charter of Rights and Freedoms (the “Charter”).

Section 6(1) of the Charter guarantees Canadian citizens the right to “enter, remain in and leave Canada.” Section 6(2) guarantees the right of citizens and permanent residents to “move and take up residence in any province” and to “pursue the gaining of a livelihood in any province.”

Section 7 guarantees “everyone” with the “right to life, liberty and security of the person” and “not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 6 of the Charter is not subject to the “notwithstanding clause” in s. 33 of the Charter.

This clause allows a government to declare that a law continues to operate, “notwithstanding” that it unjustifiably infringes s. 2 or 7-15 Charter rights.

The court in Taylor found that the pith and substance of the provision was to protect and promote health of those in the province. It was of a local and private nature or property and civil rights matter.

So, it was within province’s constitutional jurisdiction.

With respect to the Charter, the court found that Ms. Taylor’s specific case engaged only s. 6, not s. 7.

The court found that the right to “remain in” Canada surely included “the right to wander freely from room to room.”

It accepted that her s. 6(1) right to remain in Canada was infringed by briefly being denied entry to the province.

It then considered s. 1 of the Charter.

Section 1 guarantees that the rights and freedoms protected by the Charter will only be subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

To justify an infringement under s. 1, the party seeking to uphold the provision – here, the state — had to demonstrate that two requirements were met:

  1. the objective designed to be served by the limitation on the Charter right is of sufficient importance to warrant overriding the right; and
  2. the means chosen to limit the right are reasonable and demonstrably justified.

This second requirement involves proportionality. The interests of society must be balanced with those of individuals and groups. At this stage, the state must demonstrate three components:

  1. the means adopted must be rationally connected to the objective.
  2. the means chosen must impair as little as possible the right in question, and
  3. the effects of the measure chosen are proportionate to the objective—the more severe the harmful effects, the more important must be the objective.

To justify the travel restrictions under section 1, the state offered evidence from Dr. Rahman, an epidemiologist. He proffered predictive analytics modelling which simulated the effects of the travel restrictions.

The court observed that:

no evidence has been adduced to counter this conclusion, nor to impugn the methodology of Dr. Rahman and the predicative analytics group.

The court found that the travel restrictions had the pressing and substantial objective of protecting those in the province from COVID-19 being brought in by travellers.

Based on the statistical modelling, it found that the travel restrictions were rationally connected to the objective and were minimally impairing. The “courts do not have the specialized expertise to second guess the decisions of public health officials.”

The court found that in the circumstances of this case, “the collective benefit to the population as a whole must prevail” and the “right to mobility must give way to the common good.”

So, the court upheld travel restrictions in this case as justified under s. 1.

It dismissed Ms. Taylor’s challenge.

The decision is under appeal.

A variety of avenues to legally challenge the travel restrictions were not pursued in this case.

In an article entitled “The mathematics of covid incidence modelling: what’s wrong with Taylor v. Newfoundland?” lawyer Edward Conway discusses the model used by public health theorists use to estimate the impact of COVID-19:

  • There is a lot of math, always a selling point when you’re in the business of telling ordinary people how enormous and dangerous the trivial risk is. Who can confront these public health theorists with their mathematical models, the use of which results in the destruction of civil liberty?
  • The SEIRS model is all the rage among ‘public health’ types. It was the SEIRS model that estimated millions and millions of deaths than didn’t happen. As Joe Biden would say, ‘probably 200 million people will die before I finish this talk’.

It was the SEIRS model that convinced Burrage J. in Taylor v. Newfoundland and Labrador to revolutionize the constitution … What is this all-powerful tool that has superior court judges bending the knee?

… ‘public heath’ theorists have successful[ly] estimated all 200 million of the 200,000 actual deaths that have taken place in the United States. I hope you get my point.

While the Taylor decision is of interest, any challenge to travel restrictions will be fact specific.

Different facts, and different avenues of challenge, may well yield a different result.

How rigorous should courts be in scrutinizing such evidence, particularly when it infringes on civil liberties?

About Susan Kootnekoff:

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. Photo: Contributed

Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children.

Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law.

She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, Alta.

Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013,

Susan moved to the Okanagan with her family, where she currently resides.

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