In Spencer v. Canada (Health) 2021 FC 621, Federal Court Chief Justice Paul Crampton rejected the argument from 10 applicants that the federal government’s requirement to stay at either a mandated quarantine hotel (a government approved accommodation, or GAA) or at a designated quarantine facility (DQF) for between 24 and 72 hours while they await the results of their COVID-19 test violated their Charter ss. 7 and 9 rights, and were not “demonstrably justified in a free and democratic society” under s. 1.
Jay Cameron, Justice Centre
“The chief justice’s finding that the detention and the confinement of a person against their will is not an infringement of their liberty or security interests is not compelling,” said Cameron. “I would go so far as to say that it is clearly incorrect at law and we intend to appeal.”
In his 137-page decision, Chief Justice Crampton said that none of the applicants challenged the validity of Ottawa’s mandatory 14-day quarantine requirement for returning travellers, but only the requirement that they spend one to three days at a quarantine facility while awaiting the results of their COVID test. “In my view, this falls towards the lower end of the spectrum of encroachments on an individual’s liberty interests that are contemplated by section 7,” he wrote in his reasons, acknowledging the cost to stay at a GAA can exceed $1,000.
The applicants contended that the infringement of their s. 7 right to liberty was arbitrary since air travellers were required to stay in a quarantine hotel while land travellers coming from the same location were not subject to the same requirement. However, the chief justice accepted evidence from the government’s expert witnesses that a higher percentage of asymptomatic travellers entering Canada by air than by land test positive for COVID-19.
The applicants further asserted that the quarantine measures were arbitrary because they were incapable of achieving their objectives since air travellers, with a suitable quarantine plan, were able to leave a designated hotel after taking a COVID test regardless of the result, and thus had no impact on the spread of COVID-19.
Chief Justice Crampton disagreed with that argument too.
The objective of the measures, “not their actual effectiveness,” is what is relevant, he said.
On Feb. 14, the federal government issued an order-in-council, which took effect on Feb. 22, that required air travellers entering Canada to enter into quarantine at an authorized hotel to reduce “the introduction and further spread of COVID-19 and new variants of the virus into Canada by decreasing the risk of importing cases from outside the country,” according to the order’s explanatory notes.
As Chief Justice Crampton summarized, the rationales for the hotel quarantine requirement were that people “who know they have tested positive are likely to modify their behaviour in a manner that reduces the risk of transmitting COVID-19 to others in their home and in the broader community;” prevent both “people from spreading the virus to others when travelling on public transportation to their homes or other suitable place of quarantine,” and “infected travellers from infecting others in their home or in the community;” and facilitate “early identification and isolation of asymptomatic air travellers who are infected.”
Those grounds, he ruled, “provide the requisite rational connection between the objective of the impugned measures, including the specific requirement to stay at a [quarantine hotel], and the limits imposed on the applicants’ right to liberty.”
However, the Federal Court found that the Charter ss. 9 and 10 (b) rights of one of the applicants, Nicole Mathis, who with her husband, Chris, are the founding pastors of the Edmonton-based evangelical Christian Summit church, were violated.
In a news release, the Justice Centre linked to a Western Standard story that reported Mathis was detained at the Calgary airport on Jan. 28 after it was determined that the COVID-19 test she received in Dallas, before boarding her flight, was invalid.
She was “forced against her will” into a federal quarantine facility where she was held for three nights, according to the Justice Centre, which represented her at the Federal Court. “Calgary police officers refused to tell her worried husband, Pastor Chris Mathis, where his wife was being taken.”
In his ruling, Chief Justice Crampton held that “the refusal of border-control officials to disclose to Ms. Mathis and her spouse the location of the DQF to which she was being taken, and the fact that she was not properly informed of her right to retain and instruct counsel without delay” violated her rights and “cannot be demonstrably justified in a free and democratic society.”
He noted that “the first of those violations has since been remedied by the requirement that travellers who are required to stay in a GAA must book their own reservation there, [and will therefore] know the location of the GAA hotel. Moreover, travellers who are required to stay in a DQF are provided with the relevant details pertaining to that facility.”
“As to the second exception, border control officials will now be aware that they must clearly communicate the right to retain and instruct counsel in a manner that is readily understood, at the outset of the detention,” the chief justice wrote in his reasons.
Cameron said it was “clear” that Mathis’s detention was an “unjustified infringement” on her constitutional rights.
“That was a win,” he said.
The bulk of the ruling, however, was offside in Cameron’s opinion.
“If you test positive for COVID, you quarantine in your house,” he said. But as he explained, Canadians who left Canada for a variety of reasons, whether it was seek medical treatment or deal with a family emergency — or just for a vacation — “have both the right to leave the country and to return” under Charter s. 6 (1), which “is not subject to the notwithstanding clause.”
“[The applicants] tested negative, but were still compelled to go against their will by the authorities, under threat of punitive fines, and in a very intimidating fashion in an unmarked vehicle, whisked off to a hotel and not being told of the location. The whole thing is calculated to punish people who travel, and that’s not how Canada is supposed to function.”
Chief Justice Crampton’s finding that the government’s quarantine facilities were Charter-compliant is “an embarrassment to the body of law regarding confinement and detention,” said Cameron.
If the Federal Court of Appeal will not reverse the ruling, he plans to seek leave to appeal to the Supreme Court of Canada.
“Governments have shown that they need guidance from the courts,” said Cameron.
“In many places around the world, courts have struck down some of these oppressive measures which Canadians have suffered under. But Canadian judges have, so far, been almost been a rubber stamp for government measures, and that’s unfortunate because the courts are the defenders of the Constitution.”
He explained that beyond providing guidance to, in this case, the federal government, the courts should also provide Canadians with “assurances that there is going to be a meaningful check on authoritarian, heavy-handed measures by governments.”
“One of the things that has been consistently excluded from the government narrative is that 99.77 per cent of people who get COVID survive, and most show mild or no symptoms,” said Cameron. “Evidence before the Federal Court indicated a very low incidence of COVID transmission from air travel.”
But as Chief Justice Crampton noted, expert evidence from witnesses from the Public Health Agency of Canada (PHAC) indicated that more asymptomatic returning air travellers (1.7 per cent) have tested positive for COVID-19 than returning land travellers (at 0.3 per cent).
The Federal Court recognized that the quarantine measures at bar were scheduled to expire on June 21 — the day when the federal government announced that as of July 5, fully vaccinated travellers allowed entry into Canada will no longer need to quarantine at a government-authorized hotel.
“But it’s a full-court press by the government to compel and coerce Canadians to get two shots as a condition of the exercise of their constitutional rights and freedoms — i.e. travel — and that’s creating a two-tiered society,” said Cameron, who noted that he is not personally against vaccinations.
The federal government “welcomes the court’s decision regarding the validity of the GAAs,” said Anne Génier, spokesperson for Health Canada and PHAC, in a statement to The Lawyer’s Daily.
“This decision validates Canada’s approach to protecting public health through enhanced quarantine measures that serve to limit the introduction and spread of COVID-19 and variants of concern in Canada.”
“The Government of Canada is reviewing the court’s decision carefully as it pertains to travellers’ right to counsel and will amend our policies and procedures to ensure that we fully comply with our obligations under the Charter of Rights and Freedoms,” she said.
“The Government of Canada will continue to work with the hotel community to provide a safe and secure environment in which travellers can comply with travel and quarantine measures and lower the potential of community spread of COVID-19.”