Ontario Court of Justice
Date: March 4, 2024 Court File No.: 3161-0797334F/0797340F
Between:
His Majesty the King Respondent
— And —
Alexander Haxby Applicant
Before: Justice of the Peace V. Fisher-Grant
Heard on: December 15, 2023 Reasons for Judgment on Motions released on: March 4, 2024
Counsel: Ms. Cahill, agent for the prosecution Mr. Molner, agent for the defendant
Reasons for Judgment on Motions
1Alexander Haxby is charged with violating the Quarantine Act, section 58 by failing to comply with an order prohibiting or subjecting to any condition upon entry to Canada and with failing to Provide Information contrary to the Quarantine Act, section 15(1) on November 15, 2021.
2The applicant has brought a motion arguing that he was arbitrarily detained, that the tests under the Act were unlawfully intrusive and conflict with the Bill of Rights, that the Officers did not have the authority to act, that the Act is no longer in effect so the charges are moot. On December 15, 2023 I dismissed the Applicant’s motion with reasons to follow. These are those reasons.
3No viva voce evidence was called by either party although the Applicant did file Affidavit evidence with his materials.
Applicable Legislation
4Section 58 of the Quarantine Act provides:
Order prohibiting entry into Canada
58 (1) The Governor in Council may make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that
(a) there is an outbreak of a communicable disease in the foreign country;
(b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;
(c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and
(d) no reasonable alternatives to prevent the introduction or spread of the disease are available.
And further:
71 Every person who contravenes subsection 6(2), 8(1) or 34(2) or (3), section 36 or 38, subsection 42(1), section 45 or 50, subsection 54(3), section 58 or 59 or subsection 73(2) or the regulations is guilty of an offence and liable on summary conviction to a fine of not more than $750,000 or to imprisonment for a term of not more than six months, or to both.
5The purpose of the Quarantine Act in Section 4 indicates it is “… to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases.” The orders in Section 58 thus would have been made to achieve the purpose enumerated in Section 4: to prevent the introduction and spread of a communicable disease, here the covid-19 virus, into Canada.
Issue: Did the Screening Officer have authority to enforce the Quarantine Act?
6The Interpretation Act provides that “… a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing …”. Therefore, the power to act as an enforcement authority as defined in the Contraventions Act can be fulfilled by those with requisite capacity.
7The Quarantine Act provides that the Minister may designate screening officers. The Quarantine Act vis a vis the Interpretation Act and Contraventions Act provides the authority for those designated to issue tickets pursuant to it.
8If there is evidence proffered during the course of the trial, that the involved Screening Officer was duly designated and trained, he or she will have had authority through this mechanism to enforce the Act.
Issue: The production of the certificate of designation by the Screening Officer
9The Interpretation Act provides that “… a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing …”. Therefore, the power to act as an enforcement authority as defined in the Contraventions Act can be fulfilled by those with requisite capacity.
10The Quarantine Act provides that the Minister may designate screening officers. The Quarantine Act vis a vis the Interpretation Act and Contraventions Act provides the authority for those designated to issue tickets pursuant to it.
11Section 5(4) of the Quarantine Act provides:
The Minister shall give a certificate of designation to every screening officer who is not also a customer officer and to every environmental health officer. An officer to whom a certificate has been given shall produce it, on request, to the person in charge of a place or conveyance that the officer inspects and to any person that the officer questions.
12The applicant submits that the failure of the prosecution to provide the certificate of the screening officer as part of disclosure leads to the conclusion that the officer acted without jurisdiction from the Minister and their evidence is inadmissible.
13With respect, the applicant’s submission misses the mark on the wording of section 5(4) and its intention. The section refers to the officer needing to provide their certificate of designation upon request to those persons in charge of a place that the officer inspects or to whom he questions. The intention of this section is for the certificate to be provided at the time of the questioning or inspection. It is not a disclosure section, it is a section providing for the officer to give identification upon request at the time to inspection so that individuals are aware of who they are interacting with and who is conducting the inspection or questioning.
14It would make little sense that this section refers to disclosure obligations of the prosecution when this area of the Quarantine Act is to establish the types of officers through the powers of the Minister. If Parliament had intended for the section to extend to officers providing their certificates upon demand to persons whom they had charged as part of disclosure, it would have incorporated same, particularly given that disclosure obligations of the Crown are a fulsome, established area of the law.
15Furthermore, the section is not written in the past tense. For example: “inspects and to any person the officer questions” … reads that it applies to those places and persons that the officer has the present intention of dealing with. It does not read in the past tense i.e. whom the officer has questioned which may possibly lead to a different result.
16Again, if there is evidence proffered during the course of the trial, that the involved Screening Officer was duly designated and trained, there will be some evidence that he or she had authority through this mechanism to enforce the Act.
Issue: Relief requested Stay or Quashing Certificate of the Offense
17The applicant seeks relief in two ways. First, they request relief in the form of a stay under section 32(1) of the Provincial Offences Act. The applicant’s reliance on 32(1) is misplaced. That section provides:
(1) A proceeding may be stayed at any time before judgment by direction in court given by any of the following persons to the clerk of the court and, on staying of the proceeding, any recognizance relating to the proceeding is vacated:
The Attorney General or his or her agent.
In the case of a proceeding to which a transfer agreement made under Part X applies and in which the Attorney General does not intervene, a person acting on behalf of a municipality in accordance with the agreement.
18This section in the POA relates to prosecutorial stays, not judicial stays for a breach of a person’s rights. The stay for a breach is contemplated under the Charter, section 24(1). The court has no jurisdiction under this section of the POA to stay a matter, this section is reserved for a prosecutorial stay under the direction of the prosecutor to the clerk.
19The applicant further seeks relief under section 36(1) of the POA for an order quashing the certificate of offence.
20Section 36(1) of the POA provides: An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.
21The court can only quash a certificate for a defect to the certificate or information if there is a defect apparent on its face. No grounds have been pleaded before me that the certificates have defects on their face. Furthermore, the court cannot quash a certificate until it has been established that an amendment or particulars would fail to satisfy the issue. See, for example, R. v. J.F. Brennan & Associates Ltd. (1981), 61 C.C.C. (2d) 1 (Ont. H.C.).
22The certificate is not defective in substance either. Although an information (or certificate) may be quashed if it fails to disclose an offence known to law, that is not the case here.
23The certificate of offence herein was sworn while the Quarantine Act related to the Covid-19 pandemic was in effect. It is no longer in effect with the Covid-19 requirements as the pandemic has now subsided, not because the provisions of or the Act itself was deemed to be of no force and effect, or unconstitutional.
24For this court to hold that the certificate is now invalid and should be quashed because the pandemic has diminished, overlooks that those who were charged during the pandemic and dealt with their matters (either through plea or trial) were subject to the law. Those that were charged later and happened to circumstantially have the pandemic “end” before their matters came to trial should not find themselves in any different position as a matter of fairness. Subject of course to any other valid reason for the proceeding to be stayed, etc.
25The applicant’s motion under section 36 of the POA is not well founded.
Issue: Mootness
26Similarly, to the section 36 issue the applicant asserts that to prosecute him now does not serve the public interest as the Act is no longer in effect. This is not a case of mootness; the reason the Act is no longer in force is because the pandemic has ended. The inability of the justice system to immediately schedule trials is not only systemic given the demands thereupon, but also due to the pandemic (the very thing that resulted in the impugned orders). This does not mean that the system can no longer prosecute the alleged violations that occurred whilst the Act was in force. To do so would lead to an illogical result – those charged could simply delay as long as possible in the hopes that the legislation would eventually expire. It would lead to an unfair result to all those charged who had their cases dealt with before the orders expired. It is not a circumstance where the Act has been declared invalid for reasons that it did not comply with the Charter or other similar reasons. It is not in effect because it is no longer necessary at this time.
Issue: Unreasonable Search and Seizure
27The applicants assert that their right to be secure against unreasonable search or seizure has been violated by the requirement to provide a test and/or medical information.
28As discussed by the court in R. v. Spencer, 2021 FC 621:
141A “seizure” in this context is considered to constitute “the taking of a thing from a person by a public official without that person’s consent” : R v Reeves, 2018 SCC 56 at para 13, citing R v Dyment, [1988] 2 SCR 417 at 431 [Reeves].
142However, section 8 is not engaged unless “the claimant has a reasonable expectation of privacy in the place or item that is inspected or taken by the state.” Reeves, above, at para 12, citing R v Cole, 2012 SCC 53 at paras 34 and 36 [Cole]. Moreover, this expectation of privacy must “[occur] in the context of administrative or criminal investigation” : Quebec (Attorney General) v Laroche, 2002 SCC 72 at para 53, quoting S. C. Hutchison, J. C. Morton and M. P. Bury, Search and Seizure Law in Canada (Toronto: Carswell, 1993) (loose-leaf updated 2002, release 2), at pp 2‑5.
143To determine whether a claimant has such an expectation of privacy, courts are required to examine “the totality of the circumstances” : Reeves, above, at para 12. The objective reasonableness of a person’s privacy expectations will vary according to whether the search or seizure occurs in the criminal context rather than in an administrative or regulatory context; intrusions by the state that constitute search or seizure in the criminal context may be neither in an administrative context: X (Re), 2017 FC 1047 at para 123.
144If section 8 is engaged, the court must then determine whether the seizure was reasonable: Reeves, above, at para 14, citing R v Edwards, [1996] 1 SCR 128 at paras 31 and 45 (5).
145A search or seizure is reasonable “if it is authorized by law, if the law itself is reasonable and if the manner in which the search [or seizure] was carried out is reasonable” : Reeves, above, at para 14, citing R v Collins, [1987] 1 SCR 265 at 278.
29The court in Spencer was dealing with the Quarantine Act regarding the applicants’ concern regarding seizure of money. In this case, the applicant takes issue with the seizure of his medical information and / or bodily fluids by having to provide a nasal swab. In this matter, when travelers choose to travel, they would need to provide a negative covid 19 test that was administered through a nasal swab. If they chose not to do so, they would be deemed to be in violation of the Act.
30In Spencer the court found that the requirement to stay in a hotel to await an RNA test, did not constitute an administrative or criminal investigation. In this matter, similarly, I find that there is no administrative or criminal investigation. The requirement in these circumstances is to provide information and is much the same as the requirement to provide a passport upon reentry to Canada. It ensures information regarding the type of travel and security concerns are addressed.
31The nasal swab in my view is a minimally intrusive means of assessing whether a person is afflicted with the virus of concern. The applicant was not subject to a blood test, or similar more significant testing. The court must balance this intrusion against the overwhelming public interest in curbing the spread of what was a global pandemic wherein thousands of persons died or became seriously ill.
32Furthermore, in this case, even if there was a seizure herein, it was authorized by law and the manner in which it was carried out was reasonable. The Quarantine Act and its provisions were law for travellers entering Canada. The receipt of minimal information – test results, vaccination status, travel details and contact information – were minimally intrusive particularly in light of the overwhelming public interest in curbing the spread of a global pandemic.
Issue: Arbitrary detention
33The applicant submits that they were unlawfully detained. The applicant submits that this violation is contrary to the Bill of Rights. The applicant seeks a stay of proceedings. The Bill of Rights is not legislation that the court can grant a remedy under. It provides interpretative guidance. The argument would perhaps be more properly characterized under Section 9 of the Charter with the remedy being under 24(1). However, the applicant, through his paralegal, at the outset of the hearing into the matter, specifically articulated to the Court that they were not seeking a remedy under the Charter. It not having been pleaded nor perfected this Court is not in a jurisdictional position to grant a remedy.
34However, in brief, I do note that in Spencer that court analyzed the requirement to stay in a hotel as follows and ultimately concluded that the detention occasioned by the requirement to stay at a GAA hotel was not arbitrary.
163The typical border screening process is of relatively short duration, especially compared to the requirement to stay at a GAA or a DQF for 24-72 hours. Even assuming that a screening process of a few hours would not constitute a "detention" within the meaning of section 9 (Nagle, above, at paragraph 35), I consider that a screening process lasting 24-72 hours unquestionably constitutes detention.
164In contrast to persons who are routinely questioned and even physically searched at the border, air travellers are not permitted to proceed home that same day. Indeed, they may be prevented from doing so for up to three days. During that time, they are required to stay in their hotel room. Although they may request the opportunity to take one or more fresh-air breaks, this does not alter the fact that they are subject to a significant physical restraint of movement. Given the penal nature of the sanctions to which they are subject if they refuse to stay in a GAA, or if they refuse to comply with the physical restrictions at the GAA, a reasonable person in that situation would likely conclude that they were not "free to go."
165Accordingly, the requirement to stay in a GAA or a DQF for 24-72 [hours] constitutes "detention" within the meaning of section 9.
166However, such detention is not "arbitrary." As noted above, this stage of the analysis requires three determinations: (i) the detention is authorized by law, (ii) the authorizing law itself is not arbitrary, and (iii) the manner in which the detention is carried out is reasonable: Le, above, at paragraph 124.
179In summary, I find that the Impugned Measures, particularly the requirement to stay at a GAA or a DQF, engage the Applicants’ section 9 rights because they result in the detention of non-exempt persons arriving in Canada by air. However, with the exception of Ms. Mathis, the Applicants’ section 9 rights are not contravened because their detention is not arbitrary. This is because (i) the detention is authorized by law (namely, by the same Order(s) in which the Impugned Measures are contained), (ii) the authorizing law itself is not arbitrary, and (iii) the manner in which the detention is carried out is reasonable. Moreover, the Impugned Measures, together with the other documents discussed in the immediately preceding paragraphs above, provide sufficient criteria to guide the exercise of discretion by screening officers and to enable them to make reasonable determinations as between individuals. [emphasis added]
35The court in Spencer dealt with the requirement to stay in a hotel which surely is a longer proposition that the brief interaction Mr. Haxby would have had with the screening officer at the airport. The court in Spencer notes that “the typical border screening process is of relatively short duration.” The affidavit of Mr. Haxby indicated that the officer told him he was not being detained. In my view there is no evidentiary basis to conclude that the stop of Mr. Haxby to provide screening and vaccination information was anything more than brief upon his arrival. Even if he were detained at that point, given the dicta in Spencer, I am not prepared to find that if a detention occurred that it was arbitrary.
36This ground asserted by the Applicant is dismissed.
Conclusion
37For the foregoing reasons, the motions are dismissed and the matter remitted to the scheduled trial date of March 4, 2024.
Released: March 4, 2024
Justice of the Peace V. Fisher-Grant