Tickets for violating northern travel ban could be infringement of charter rights, lawyer says

A civil liberties lawyer says the eight people who received tickets from Thompson RCMP on the Victoria Day long weekend for violating the ban on unnecessary travel into Northern Manitoba could challenge their constitutionality and have a good chance of winning in court.

James Kitchen, a lawyer with the Justice Centre for Constitutional Freedoms (JCCF), a non-profit charitable organization which provides free legal representation in cases involving violations of Canadians’ charter rights, says those rights aren’t absolute but that governments do have to justify their actions when they infringe upon them. The Alberta-based JCCF was founded in 2010 to provide free legal representation to Canadian university students who believed their right to free expression had been violated. It has represented Manitobans whose personalized licence plates - one reading ASIMIL8 in reference to the alien species known as the Borg in Star Trek and another reading NDN CAR - were deemed offensive by Manitoba Public Insurance, as well as a Manitoba man who lost his licence to perform marriages because he said his religious beliefs would not allow him to perform same-sex marriages. JCCF has been endorsed by the CEO of the Canadian Taxpayers Federation, Ezra Levant of Rebel News and people associated with the Fraser Institute, the Macdonald-Laurier Institute, the Institute for Liberal Studies and the Institute of Family and Marriage Canada.

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“Our whole modus operandi is free society and educating people on what their rights are in a free society and defending their rights in the courts when governments infringe those rights,” said Kitchen.

In the case of $486 tickets Thompson RCMP handed out to seven people from Winnipeg and one from Dauphin coming to Thompson to visit friends or family for the long weekend, the recipients could argue that the travel ban affects their mobility and association rights.

“I would say these tickets and the travel ban restrictions in particular violates multiple charter rights and it would be very difficult to justify as of whenever these tickets were issued,” Kitchen said. “These aren’t the kind of tickets that you should necessarily go right ahead and pay. These are the kind of things you probably should get legal counsel on, about whether or not the ticket was lawful and whether or not you should fight it. You’d have way more than a Hail Mary’s chance of succeeding legally if you challenge this ticket.” 

The fact that the tickets were handed out in mid-May, well after the number of COVID-19 cases in the province flattened out and then decreased, would make it more difficult for the provincial government to justify them, Kitchen says.

“Back in March, these things might have been justified,” he said. “The justification would have been flatten the curve. The justification now is either not there or it’s something irrational like stop the spread and that doesn’t cut it.”

The number of potentially unconstitutional orders and regulations enacted by governments in Canada has risen sharply since COVID-19 was declared a pandemic two-and-a-half months ago, Kitchen says.

“There’s a long list of civil liberties that we all had in February that we don’t have right now and Manitobans don’t have and there doesn’t seem to be a clear, quick, definitive plan to have all of those returned in any kind of foreseeable future and that’s extraordinarily concerning.”

These orders have been enacted at a time when legislative assemblies aren’t sitting as much as they normally do, Kitchen says, which makes government decisions less subject to scrutiny.

“The purpose of the legislature is to have this debate, the oversight the critique, the public awareness. Those are the things the legislature fulfills. The legislature’s not sitting and the cabinet is ruling by decree or order, you don’t have that anymore and that is really concerning. We have these chief medical officers kind of running the show. They don’t have the democratic mandate to do that. If we’re in an actual acute crisis, that’s acceptable for a short period of time but now it’s been two-and-a-half months.”

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