N.B. border restrictions could infringe on mobility rights, says civil liberties group

The Canadian Civil Liberties Association says travel restrictions at New Brunswick's borders could violate the Charter of Rights and Freedoms.

Cara Zwibel, a lawyer with the organization, said rules preventing some Canadians from entering the province conflict with mobility rights.

"I think that this freedom to travel freely within the country is something that is a part of being Canadian," she said. "A part of living in a country is you can move around in it."

The charter includes the right to move to, reside in, and earn a livelihood in any province. While other types of travel are not specifically referenced, the association believes they should be implied.

New Brunswick closed its borders to non-essential travel under the state of emergency in March. Checkpoints staffed by peace officers have been used to screen and control travellers.

Since those initial restrictions, new exemptions have been rolled out to allow Canadians to enter for work, medical treatment, to visit family or go to property they own — although self-isolation is still required in most cases. 

In response to the mobility concerns, the New Brunswick government said the restrictions have been an effective response to the pandemic. 

Coreen Enos, a spokesperson for the Department of Public Health, said in an email that the province took early action to limit and prevent the spread of COVID-19.

"The ongoing measures have helped protect the health of people in New Brunswick and have likely benefited our neighbours as well," she said.

New figures released by Statistics Canada earlier this week show the province's economic recovery is happening quicker than at the national level.

The province's emergency order must be reviewed every two weeks by the all-party cabinet committee and advice from the Office of the Chief Medical Officer of Health. At that time, Enos said the measures within the order are reviewed.

Disruptions for border residents

Megan Mitton is the MLA for Memramcook-Tantramar, which borders Nova Scotia. Her constituency office has been flooded with calls and emails from residents having challenges travelling back and forth.

She is concerned about inconsistencies with the Aulac border checkpoint and said essential workers have been heavily impacted.

"They don't know what to expect when they get to the border, and how long it'll take them to get to work and to get home," she said.

"Some people are working 12-hour shifts, providing really important services and then they have this question mark at the beginning of their day and the end of their day."

The province issued passes for daily commuters when the border initially closed to essential travel. Under the Atlantic bubble, regular travellers are now asked to complete an online pre-registration form before each time they cross.

But the challenges for border residents have continued. Mitton said the public safety department's phone lines haven't been working consistently, and some people have been issued accidental isolation orders.

"These rules are not created thinking about the thousands and thousands of people that live near the border, and that need to cross regularly."

The province has made physical changes at the Aulac crossing designed to improve traffic flow.

Legal challenge in Newfoundland and Labrador

Zwibel said the existence of a pandemic alone is not enough to limit mobility rights. She said New Brunswick's provincial government needs to justify limiting entry to the province, compared to allowing access for all Canadians provided they self–isolate.

"Our desire is just to see the information and the evidence that governments are relying on when they're making these decisions," she said. "Because they shouldn't just be based on sort of fear or speculation."

"I appreciate that there's a concern that not everyone will follow those rules, even though I don't think we've seen really good evidence that that's happening — that people are ignoring those rules."

The Canadian Civil Liberties Association has joined a lawsuit in response to travel restrictions in Newfoundland and Labrador. It has also sent letters to provinces and territories that have banned visitors. 

The lawsuit has the potential to set a legal precedent which could impact restrictions in New Brunswick. 

"It's never been seriously questioned that Canadians have the right to move around the country freely, and if we're calling that into question now then I think we need governments to be really forthcoming about the basis for doing that," Zwibel said.

Information privacy concerns 

When travellers cross into New Brunswick at the checkpoint, personal details are collected, including contact information, addresses, licence plate number and reason for travel. 

The Canadian Civil Liberties Association says this type of data collection is largely unprecedented and management of the information is a cause for concern.

Public safety says that information is stored on government servers with controlled access within the department. It is shared with a "border callback team" to check in on those required to self isolate.

"The information will be retained for a period of six months for Public Health purposes and investigations, if necessary," Enos said. "It will then be disposed of in accordance with provincial retention schedules."

The opening of the Atlantic Bubble on July 3 paved the way for residents who aren't sick and haven't travelled outside the region to enter without self-isolation. But Canadians from outside the region who don't meet exemptions still can't enter New Brunswick. 

Premier Blaine Higgs is considering a smaller bubble to allow for isolation–free travel with neighbouring communities in Quebec. That change could come at the start of August.

"We continue to monitor what is happening in other Canadian jurisdictions to assess the situation in other provinces and territories with an eye to safely reopening the province," Enos said.