Group looking for test case to challenge Higgs's decision to close N.B. borders

The group that tried to strike down New Brunswick's limits on cross-border beer says it may now challenge the constitutionality of the Higgs government's decision to close provincial borders.

The Canadian Constitution Foundation says it is looking for a test case it could use to ask the courts to strike down the restrictions, just as it tried to open provincial borders to the free flow of beer.

"We're considering it because we're seeing state actors proceed under these patently unconstitutional laws, not just taking them up [but] as well as applying them arbitrarily," said Joanna Baron, the organization's executive director.

The province has restricted entry to the province as part of its efforts to contain the spread of COVID-19. Provincial enforcement officers are stationed at seven road crossings and two airports and are turning away anyone considered to be travelling for non-essential reasons.

Premier Blaine Higgs has said that the border restrictions will likely be among the last COVID-19 measures to be lifted.

Is restriction allowed or not?

The foundation may use the case of Daniel Arefi, a 19-year-old man who was sent back to Toronto this week, or the situation in Pointe--la-Croix, Que.,where some residents have been allowed to cross to New Brunswick and others have not.

Baron says the province's restrictions violate two constitutional provisions.

Section 6.2 of the Charter of Rights and Freedoms guarantees the right of any Canadian "to move to and take up residence in any province."

While that is subject to Section 1 of the charter, which allows reasonable limits on some rights, Baron says there's an argument the restrictions are not reasonable.

"We would say that if you look at what other provinces have done, which is impose a mandatory 14-day quarantine for travellers entering the province, that's clearly less impairing of the right than just an outright blanket ban."

But she says another part of the Constitution is even more clear cut. Sections 91 and 92 prevent the province from regulating interprovincial borders at all.

Only the federal government can regulate anything moving between provinces, whether it's highways, pipelines or people, Baron said.

"Just invoking the Emergencies Act does not preempt that," she said. "It's certainly something that the federal government could do, but it's not something New Brunswick can do without violating the Constitution Act of 1867."

The division of powers outlined in Sections 91 and 92 are outside the charter and not subject to Section 1's "reasonable limits" clause.

Ideal test cases

Baron says both the Arefi and Pointe--la-Croix cases could make ideal test cases.

On Friday,Arefi pleaded guilty to violating the province's emergency measures order after he flew into Moncton and refused to obey provincial enforcement officers who told him he could not stay and had to fly home to Toronto.

Arefi told provincial enforcement officers he was arriving to visit his parents, but his father Hossein says his son was actually moving to Moncton after being laid off from a job in Toronto.

Daniel Arefi pleaded guilty and was fined $292 and driven to Fredericton to catch a flight back to Toronto.

Hossein Arefi said Friday his son's rights were violated and he was considering suing the province.

Daniel "was not in Mexico, he was not in Argentina, he was not in Australia. He was in Canada," Hossein Arefi said. "A Canadian can live and work anywhere he likes in Canada."

Meanwhile the mayor of Pointe--la-Croix, Que.,says rules allowing residents of his town to cross to Campbellton for essentials are being applied arbitrarily and with no consistency.

The province's emergency order allows people to cross at Campbellton "to obtain groceries, prescription medication, and other necessities of life not available to them in their own community."

Rules need to be clarified

Pascal Bujold says he's trying to clarify the rules with New Brunswick officials because some people are being prevented from entering for no apparent reason.

He said he was not aware of the foundation's offer to support a legal challenge. "You can give them my number and I'll talk to them," he said, adding he preferred to sort things out with the province informally.

The foundation funded the legal case of Tracadie-Sheila man Gerard Comeau, who was prosecuted for exceeding the provincial limit on bringing beer and liquor into the province for personal use.

Comeau argued the law violated a provision of the Constitution that allows goods to move freely between provinces.

But the Supreme Court of Canada ruled in 2018 that New Brunswick's Liquor Control Act didn't violate that provision because the law's goal wasn't to limit interprovincial trade but to "enable public supervision" of retail alcohol sales.

Not contested yet

So far the federal government hasn't contested New Brunswick's power to restrict entry to the province.

Last week federal cabinet minister Dominic LeBlanc questioned the constitutionality of another Higgs government restriction, on temporary foreign workers.

But he said Ottawa "accepts that this is a decision that the New Brunswick government can make and did make."

Baron said that doesn't mean provincial border restrictions are legal.

"The federal government may be making a political or just pragmatic calculation," she said.

"It obviously has its hands very full right now and if it chooses not to act, that doesn't say anything about the constitutionality of the law and doesn't say anything about the rights that continue to be violated."