CITATION: Mississauga (City) v. Hung, 2022 ONCJ 429
DATE: September 22, 2022
IN THE MATTER OF
the Quarantine Act, S.C. 2005, c. 20
and
Order in Council P.C. #2021-0174 (Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations))
and
the Contraventions Act, S.C. 1992, c. 47
Between
the Corporation of the City of Mississauga
Prosecutor
and
Wai Wun HUNG
Defendant
Ontario Court of Justice
Mississauga, Ontario
Quon J.P.
Reasons for Judgment
Trial held: May 6, 2022.
Judgement rendered: September 22, 2022.
Charges: (1) Failure to comply with a reasonable measure ordered by a screening officer or quarantine officer, contrary to s. 15(3) of Quarantine Act, S.C. 2005, c. 20.
(2) Failure to comply with an order prohibiting or subjecting to any condition the entry into Canada, contrary to s. 58 of Quarantine Act, S.C. 2005, c. 20.
Counsel:
C. Mariuz, prosecutor
M. Cardy, legal representative for the defendant.
Cases Considered or Referred To:
Corbiere v. Canada (Minister of Indian and Northern Affairs, 1999 CanLII 687 (SCC), [1999] S.C.J. No. 24 (S.C.C.).
Egan v. Canada, 1995 CanLII 98 (SCC), [1995] S.C.J. No. 43 (S.C.C.).
La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013] S.C.J. No. 63 (S.C.C.).
Lavoie v. Canada, 2002 SCC 23, [2002] S.C.J. No. 24 (S.C.C.).
Law Society British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] S.C.J. No. 6 (S.C.C.).
Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., 2006 SCC 12, [2006] 1 S.C.R. 420, S.C.J. No. 12 (S.C.C.).
Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] S.C.J. No. 2 (S.C.C.).
M. v. H., 1999 CanLII 686 (SCC), [1999] S.C.J. No. 23 (S.C.C.).
Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] S.C.J. No. 44 (S.C.C.).
Mississauga (City) v. Cardoza, unreported, (July 21, 2022), Mississauga (Ont. C.J.), Quon J.P.
Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] S.C.J. No. 84 (S.C.C.).
R. v. Demont (1994), 1994 CanLII 4514 (NS SC), 129 N.S.R. (2d) 359 (N.S.S.C.).
R. v. Jorgenson, 1995 CanLII 85 (SCC), [1995] S.C.J. No. 92 (S.C.C.).
R. v. Kapp, 2008 SCC 41, [2008] S.C.J. No 42 (S.C.C.).
R. v. Pontes, 1995 CanLII 61 (SCC), [1995] S.C.J. No. 70 (S.C.C.).
R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 (S.C.C.).
Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.), Pentney J.
Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622 (F.C.), Crampton C.J.
Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] S.C.J. No. 29 (S.C.C.).
Statutes or Regulations Cited:
Bill of Rights, S.C. 1960, c. 44, s. 1(a).
Canadian Charter of Rights and Freedoms, Part 2 of the Constitution Act, 1982, Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, ss. 1, 6, 6(1), 7, 8, 9, 10(b), 11(d), 11(e), 12, and 15(1).
Contraventions Act, S.C. 1992, c. 47, ss. 5, 8, and Schedule XVI (items #4 and #7).
Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), ss. 91 and 91(11).
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 52.
Criminal Code, R.S.C. 1985, c. C-46, s. 19.
Quarantine Act, S.C. 2005, c. 20, ss. 4, 15(3), 58, 58(1), 58(1)(a -- d) and 58(1)(d).
Federal Statutory Orders and Regulations Cited
Regulations Amending the Contraventions Regulations (Schedule XVI) (Quarantine Act), SOR/2021-13, s. 3, (February 15, 2021) online: Canada Gazette, Part II, Volume 155, Extra Number 3<< Canada Gazette, Part 2, Volume 155, Number 3: Regulations Amending the Contraventions Regulations (Schedule XVI)>> or <<https://gazette.gc.ca/rp-pr/p2/2021/2021-02-15-x3/pdf/g2-155x3.pdf>>.
Regulations Amending the Contraventions Regulations (Quarantine Act), SOR/2020-86, s. 2, Schedule XVI, (April 11, 2020), online: Canada Gazette, Part II, Volume 154, Extra Number 1<< Canada Gazette, Part 2, Volume 154, Number 1: Regulations Amending the Contraventions Regulations (Quarantine Act)>>.
Federal Orders-in-Council Cited:
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-0174, (March 19, 2021) Canada Gazette Part I, Volume 155, Number 14, April 3, 2021) (Quarantine Act), online: orders-in-council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=40354&lang=en>> or online: gazette.gc.ca website <<https://www.gazette.gc.ca/rp-pr/p1/2021/2021-04-03/pdf/g1-15514.pdf>>, p. 1499, ss. 1.1, 1.2(1)(a)(ii), 2.2(1), 2.3(1)(a), 3.1, 3.1(a)(ii)(A), 3.1(a)(ii)(B), 3.2(1), 3.2(2), 3.2(2)(b), 3.2(3), and 3.4, 3.4(a), 3.4(b), and 4.1(a).
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-0075, (February 14, 2021) Canada Gazette Part I, Vol. 155, No. 8, February 20, 2021) (Quarantine Act), online: orders-in-council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=40252&lang=en>> or Online: gazette.gc.ca website<< https://gazette.gc.ca/rp-pr/p1/2021/2021-02-20/pdf/g1-15508.pdf>>, at p. 643 [Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (February 27, 2021), (Erratum) <<https://canadagazette.gc.ca/rp-pr/p1/2021/2021-02-27/html/order-decret-eng.html>>, “Notice is hereby given that in the order bearing the above-mentioned title published in the Saturday, February 20, 2021, issue of the Canada Gazette, Part I, Vol. 155, No. 8, the P.C. number should have been the following on page 673: P.C. 2021-75], ss. 1.2(1)(a)(ii)(B), 1.2(1)(a)(iii), 1.2(1.1), 1.3(ii)(A), 3(1.01)(a), and 3(1.3).
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-0011, (January 20, 2021) Canada Gazette Part I, Volume 155, Number 5, January 30, 2021) (Quarantine Act), online: orders-in-council.canada.ca website <https://orders-in-council.canada.ca/attachment.php?attach=40172&lang=en>> or online: gazette.gc.ca website<<https://gazette.gc.ca/rp-pr/p1/2021/2021-01-30/pdf/g1-15505.pdf>>, at p. 362, s. 1.2(4)(a).
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-0001, (January 6, 2021) Canada Gazette Part I, Volume 155, Number 3, January 16, 2021) (Quarantine Act), online: orders-in-council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=40167&lang=en>> or Online: gazette.gc.ca website <<https://www.gazette.gc.ca/rp-pr/p1/2021/2021-01-16/pdf/g1-15503.pdf>>, p. 223, s. 1.1(3)(a)(i).
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 7, P.C. #2020-0840, (October 30, 2020) Canada Gazette Part I, Volume 154, Number 45, November 7, 2020) (Quarantine Act), online: orders-in-council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=39829&lang=en>> or Online: gazette.gc.ca website<< https://gazette.gc.ca/rp-pr/p1/2020/2020-11-07/pdf/g1-15445.pdf>>, p. 3186, ss. 1.1(2) and 15.
Reference Material Cited:
Libman, R. Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002), ((looseleaf) update 11 – February 2008).
Exhibits entered:
Exhibit "1" - copy of a one-page “Traveller Contact Information Form” document dated April 5, 2020, signed by Wai Wun HUNG with 4 sections of questions and answers [only English questions stated below]:
Traveller Contact Information Form
FOR AGENCY USE ONLY
SUMMARY OF HEALTH ASSESSMENT AND QUARANTINE PLAN „ c QO-Sym c QO-Accom c QO-Vol c QO-BN c QO-MF
EXEMPTION FROM MANDATORY QUARANTINE (IF APPLICABLE) „ c EX-TT c EX-MS c EX-ES c EX-CBW
TRAVELER INFORMATION (1 FORM PER TRAVELER)
Surname Given Names
HUNG WAI WUN
Date of birth (yyyy-mm-dd) email address
[removed for privacy] [removed for privacy]
Preferred language a Eng. c Fr. c Sp.
country code primary phone number country code secondary phone number (optional)
Arrival Information
Date of Arrival (yyyy-mm-dd) aAir c Land Port of Entry (if land or marine)
2020 – 04 – 05 6 „
c Marine
Airport Name of airport (if other)
aToronto Pearson c Vancouver c Montreal c Other
Airline Flight No. Type of travel document
A 2702 Passport
Country that issued the travel document Travel document number
CANADA [removed for privacy]
COVID-19 test
I acknowledge that unless exempted from the requirement under the Quarantine Act and Emergency Orders made under it, I am required to show proof of a COVID-19 test result that was undertaken in accordance with the requirements specified in these legislations, AND that I must keep the proof of my COVID-19 test for my entire quarantine period [NOT required for entry by marine vessel]
c Yes
Have you tested positive for COVID-19 on a sample collected between 14 and 90 days before the scheduled departure of your flight (if travelling by air) or entry to Canada (if travelling by land)?
c Yes aNo „
If no, do you have a valid registration at a Government-approved hotel?
c Yes aNo „ If yes provide your booking reference number:
Final Quarantine Location
Destination Type Destination Type Description (if other)
c Home aOther Friends Empty Condo
Street number and name Apartment/unit number (if applicable)
188 University Avenue [removed for privacy]
City Prov./Terr. Postal Code
TORONTO ON M5A 0A3
Purpose of Travel (if applicable, select one)
c Study (International Student) c Study (US-CAN cross-border student)
c Foreign worker c Family reunification c Compassionate grounds
------------------------------------------------------------------------------------------------------------------------------------------------------------------Attestation
I attest that the Information provided in this form is true, accurate, and complete
Signature (of parent or legal guardian for individuals 16 years of age or younger] Date of signature (yyy-mm-dd)
“signature of Wai Wun HUNG” 2020-04-05
GC 648 (2021-02) See back page for privacy notice CANADA
PAGE 2 of 2
PHAC-20200420 V-Feb.2021
1. INTRODUCTION
[1] In the year 2020, which was the first year of the declared COVID-19 global pandemic, many Canadians and residents of Canada heeded the Canadian Federal Government’s advice and pleas about not travelling out of Canada during the first year of the pandemic, except for necessary travel outside Canada to attend a funeral or to take care of an ill relative. The reason the Federal Government had asked the people of Canada not to travel out of the country was so that it would serve as one of the measures that would hopefully prevent the contagious COVID-19 virus from entering and spreading in Canada. The COVID-19 virus was causing a global health pandemic that was sickening people, overwhelming hospitals, and causing death to many people who contracted COVID-19, and which was engulfing some parts of the world.
[2] Those that heeded the advice not to travel outside Canada were willing to endure and sacrifice their vacations and visits to family and loved ones for the common good, especially in their desire to protect the health of senior and vulnerable people in Canada. However, some did not heed the government’s request not to travel outside of Canada and were instead cavalier and selfish in their attitude toward their social responsibility and did not heed the scientific-based and consequential advice and did travel outside of Canada for hedonistic pleasure.
[3] Although the Canadian Federal Government did not prevent people from leaving Canada to travel to other countries, a significant number of COVID-19 cases that had been identified and reported in Canada have been linked and traced back to travelers who had been abroad and who may have contracted COVID-19 while abroad, and who were asymptomatic carriers of the COVID-19 virus when they had entered or returned to Canada.[1] In addition, vaccines that were created to provide protection against serious illness, hospitalization and death from the COVID-19 disease were also not approved for use in Canada until respectively December 9, 2020 and December 23, 2020[2]. When vaccines were available to people in Ontario, the Ontario Provincial Government had implemented a 3-phase rollout plan for vaccinating Ontarians.[3] Phase 1 was from December 2020 to March 2021, when vaccinations were available for adults ages 80 years and older, seniors in congregate living, health care workers, adults in First Nations, Métis and Inuit populations, and adult chronic home care recipients. Phase 2 was from April 2021 to June 2021, when vaccinations were available for adults aged 55 and older, in decreasing increments, for people in high-risk congregate settings (such as shelters, group homes), individuals with certain health conditions, certain essential caregivers, people who live in hot spot communities and those who cannot work from home. For Phase 3, it commenced in July of 2021 and onwards when vaccinations were available for all remaining eligible Ontarians.
[4] In addition to the Federal Government’s pleas about not travelling outside Canada, other measures were also implemented and adopted by the Federal Government under the Quarantine Act, S.C. 2005, c. 20, to prevent and control the spread and entry into Canada of the novocorona virus that has caused the highly contagious COVID-19 disease, which may have been unknowingly brought into Canada by travellers returning or coming to Canada.
[5] However, in December of 2020, just when vaccines were just becoming approved for use and available to the Canadian population for reducing the risk of the severity, hospitalization, and death due to the illness caused by the COVID 19 virus, a new highly contagious variant of the novocorona virus was beginning to spread in Canada[4]. This was also during the second wave of COVID-19 in Canada[5]. The first 2 cases of the new variant of concern were discovered in Ontario on December 26, 2020.[6] To protect the people of Canada from the new highly contagious variant of the virus causing COVID-19, the Administer-in-Council with advice from the Public Health Agency of Canada issued during the first part of 2021 several COVID-19 Emergency Orders under the Quarantine Act, S.C. 2005, c. 20, that contained strict public health measures for people entering or returning to Canada by air. These legally mandated measures included the requirements of air travellers who were returning to or entering Canada from abroad to provide a negative COVID-19 molecular (PCR) test to the aircraft operator which had been taken within 72 hours before the departure of their flight to Canada; to book and prepay for a 3-day stay at a government-approved hotel and to provide proof of such booking electronically to the Minister of Health before boarding their flight to Canada; to undergo a mandatory Day 1 COVID-19 molecular (PCR) test at Canadian airports upon their arrival; to take a self-administered Day 10 COVID-19 molecular (PCR) test at home and to submit the test to the Public Health Agency of Canada; to provide electronically to the Minister of Health a quarantine plan for 14 days which included the 3-day stay at a government-approved hotel before boarding their flight to Canada, and to quarantine for 14 days at a government designated location if showing signs of having COVID-19 upon arrival, and for air travellers entering Canada from abroad who are asymptomatic being required to stay at government-approved hotels for up to 3 days at their own expense and then to isolate and quarantine for 11 additional days.
[6] Alas, this prosecution is about one such person who did not heed the advice of epidemiologists and government officials about not travelling outside Canada during the first year of the pandemic. Moreover, this prosecution is under the federal Quarantine Act, S.C. 2005, c. 20, and involves two charges being laid against the defendant, Wai Wun Hung, who had left Canada on December 27, 2020, and then returned to Canada on April 5, 2021. The defendant was charged upon her return to Canada under s. 15(3) of the Quarantine Act for “failure to comply with a reasonable measure ordered by a screening officer” for not undergoing a Day 1 molecular (PCR) test at the airport upon arrival and under s. 58 of the Quarantine Act for “failure to comply with an order prohibiting or subjecting to any condition the entry into Canada” for not booking the mandatory 3-day prepaid stay at a government-approved hotel. The defendant had departed and flew out of Canada on December 27, 2020, for Mexico. Her departure from Canada had occurred the day after a provincial shutdown in Ontario went into effect on Saturday, December 26, 2020, at 12:01 a.m. The Office of the Premier of Ontario had announced on December 21, 2020, that there would be this provincewide shutdown on December 26, 2020, since COVID-19 cases were continuing to rise at an alarming rate in Ontario and that additional restrictions were put into place in order to reinforce that Ontarians should stay at home as much as possible to minimize transmission of the virus and prevent hospitals from becoming overwhelmed[7]. The defendant’s reason for leaving Canada was not for attending a funeral, a family emergency, or for an essential trip for employment. As she described it, she had to leave Canada to simply get away for her mental health. Her plans in Mexico were to continue to work remotely in her occupation and to be in Mexico for pleasure. Her plan had been to stay in Mexico until March 5, 2021, and then to fly back to Canada. While in Mexico, she was fortunate to still be able to work and earn a salary while remotely using her computer. She had also booked and paid for 2 flights to return to Canada. However, prior to her intended departure on March 5, 2021, both of the defendant’s flights were cancelled by the airlines that she had booked her flights with, as the COVID-19 pandemic had worsened in Canada in the early part of 2021. She then decided to fly to Columbia because she had a friend there and had stayed in Columbia for a month before being able to book a flight back to Canada. While in Columbia she had continued to work remotely.
[7] Prior to returning to Canada from Columbia, the defendant had researched the entry requirements for returning to Canada using the internet, Canadian government websites, and the ArriveCAN app, and had believed that the only 2 entry requirements for returning to Canada by air had been to have a negative COVID-19 molecular or PCR (Polymerase Chain Reaction) test within 72 hours before boarding her flight back to Canada and to provide a quarantine plan for 2 weeks of isolation in Canada. She further said that she was not aware of the additional entry requirements of having to book a 3-day prepaid stay at a government-approved hotel and to undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival, until she had arrived at Toronto Pearson International Airport on April 5, 2021. Also, before boarding the airplane in Columbia for her flight back to Canada, she had obtained a negative COVID 19 molecular (PCR) test result in Columbia within 72 hours before the scheduled departure of her flight to Canada. In addition, her quarantine plan which she had provided electronically to the Minister of Health had been to isolate at her friend’s condo unit for the 14 days after returning to Canada, as her friend was out of the country during that period. However, when asked about her knowledge of the other entry requirements of having to book a 3-day prepaid stay at a government-approved hotel and having to undergo a Day 1 molecular (PCR) test at the airport upon arrival, the defendant replied that she was aware of these other requirements as she had heard rumours of such entry requirements when she was away.
[8] On Sunday, April 4, 2021, the defendant had departed from Columbia by air at 7:45 a.m. for her return flight to Canada that also included a layover in Miami, Florida. The defendant eventually arrived at Toronto International Airport, Terminal 3, shortly after midnight on Monday, April 5, 2021, which was also during the third wave[8] of COVID-19 in Canada. After de-embarking from the plane, she first went to the Canada Border Services Agency area where she was required to show to the CBSA officer that she had the mandated entry requirements. As the defendant was not able to show the CBSA officer that she had complied with all the entry requirements, the CBSA officer placed a sticker on the defendant’s passport. The defendant then went to the luggage area to pick up her luggage and then was directed to the Public Health Agency of Canada area in Terminal 3, where she was interviewed and informed about the entry requirements by Screening Officer Nicole Dyer.
[9] In addition, shortly before the defendant flew out of Canada on December 27, 2020, for her trip to Mexico, the City of Toronto had only administered its first approved COVID-19 vaccination on December 14, 2020[9]. However, there is no evidence provided at trial that the defendant had received an approved COVID-19 vaccine prior to leaving Canada or while she had been abroad between December 27, 2020, and April 5, 2021.
[10] Furthermore, because of increased hospitalizations of people who had contracted the COVID-19 illness, the Ontario Premier had issued a “stay-at-home” order on January 12, 2021, that would go effect at 12:01 a.m. on January 14, 2021, which would require everyone in Ontario to remain at home with exceptions for permitted purposes or activities, such as going to the grocery store or pharmacy or accessing health care services.[10]
[11] Moreover, the legal representative for the defendant submits that the defence is not bringing any Charter applications nor raising any breaches of the Charter, despite the defendant’s testimony in which she said she had believed her right to enter, remain in and leave Canada under s. 6 of the Charter was violated when she was mandated to stay for 3 days at a government-approved hotel and to also undergo a Day 1 COVID-19 molecular (PCR) test upon entry into Canada. However, the defendant’s legal representative has raised the mistake of fact defence to exculpate the defendant from being convicted of the two charges brought against her. The defendant’s mistake of fact defence has two bases. The first basis of the mistake of fact defence involves the defendant’s mistaken belief that she had complied with the necessary entry requirements of having a negative pre-flight COVID-19 molecular (PCR) test and having a quarantine plan to isolate for 14 days at her friend’s condominium when she arrived at the Toronto airport on April 5, 2021. For the second basis of the mistake of fact defence, the defendant contends that she did not comply with the entry requirements of booking a 3-day prepaid stay at a government-approved hotel or in undergoing a Day 1 molecular (PCR) test at the Toronto airport upon her arrival, since she had a mistaken belief that she did not have to comply with these 2 additional entry requirements on April 5, 2021, because she had believed her Charter rights would be infringed if she were required to book and pay for a 3-day stay at a government-approved hotel and to undergo the free of cost Day 1 COVID-19 molecular (PCR) test, based on what she had read on the internet and also considering that she had already obtained a negative COVID-19 molecular (PCR) test in Columbia within 72 hours prior to her flight departing to Canada.
[12] On the other hand, in response to the defendant’s second basis of the mistake of fact defence, the prosecution submits that the defendant’s mistaken belief that her Charter rights would be violated if she had to comply with the entry requirements is not a reasonable or honestly held mistake of fact, but a mistake of law or ignorance of the law claim, which is not a valid or legally recognized defence. And, in response to the first basis of the defendant’s mistake of fact defence, the prosecution submits that the defendant had testified under cross-examination that she had been aware of the entry requirements of having to book a 3-day prepaid stay at a government-approved hotel and having to undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival.
[13] Ergo, for the reasons that will follow, the prosecution has proven the actus reus of the offence beyond a reasonable doubt for both charges. For the s. 15(3) charge set out in Certificate of Offence #3161-1024051F, the prosecution has proven beyond a reasonable doubt that the defendant did not undergo the Day 1 COVID-19 molecular (PCR) test at the airport upon her arrival on April 5, 2021 and for the s. 58 charge set out in Certificate of Offence #3161-1024892F, the prosecution has proven beyond a reasonable doubt that the defendant did not book a 3-day prepaid stay at a government-approved hotel on April 5, 2021.
[14] As for the defendant’s mistake of fact defence, both bases of the defendant’s mistake of fact defence are actually “mistakes of law” or “ignorance of the law” assertions, which are not legally recognized defences. In other words, if the defendant believes that the law applying to her is “Law A” when in fact the applicable law is actually “Law B”, then the defendant’s contention of mistakenly believing that she had met the entry requirements of providing proof electronically of having a negative COVID-19 molecular (PCR) test within 72 hours of the departure time of her flight to Canada and in having a quarantine plan for 14 days and not being aware of the other 2 entry requirements of having to book a 3-day prepaid stay at a government-approved hotel and having to undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival, or that she had mistakenly believed that her Charter rights, especially her s. 6 right as a Canadian citizen to enter, remain in and leave Canada, would be violated if she were required to book and stay for 3 days at a government-approved hotel and in having to undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon her arrival, when she already had a negative test before she boarded the airplane for Canada, are fundamentally “ignorance of the law” or a “mistake of law” made by the defendant and not a “mistake of fact” as the defendant contends. Furthermore, there is no documentary evidence provided or admitted at trial that shows that the defendant had been misled by a Canadian government website or by any Canadian government information that she only needed as entry requirements for April 5, 2021, of having to only provide proof electronically to the Minister of Health of having a negative COVID-19 molecular (PCR) test withing 72 hours of the scheduled departure time of her flight to Canada and in providing a quarantine plan for 14 days, which is akin to an “officially induced error” that would be the exception to the principle that a mistake of law is not a defence. Accordingly, as her mistaken beliefs are actually mistakes of law, then the defendant has not met her legal or persuasive burden of proof on a balance or probabilities that she had reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.
[15] However, even if the defendant’s mistaken belief was not considered a mistake of law, but a mistake of fact in which the defendant had mistakenly believed that she had complied with the entry requirements or that she believed that she did not have to comply with the entry requirements since they would violate her Charter rights, the defendant would nevertheless not have met her burden of proving on a balance of probabilities that her mistaken belief was both objectively reasonable and or subjectively honest for either of her two bases of her mistake of fact defence, which will be expanded upon further in these written reasons.
[16] Ergo, as the defendant has not met her legal onus in proving on a balance of probabilities that she had taken all reasonable care to avoid committing the 2 offences or proving on a balance of probabilities that she had a reasonable and honest mistake of fact that she had mistakenly believed she had complied with the entry requirements or that she mistakenly believed she did not have to comply with the mandated entry requirements because they would violate her Charter rights, then the defendant is guilty beyond a reasonable doubt of committing the offence of “failure to comply with a reasonable measure ordered by a screening officer or quarantine officer”, contrary to s. 15(3) of the Quarantine Act, S.C. 2005, c. 20 and guilty of committing the offence of “failure to comply with an order prohibiting or subjecting to any condition the entry into Canada”, contrary to s. 58 of the Quarantine Act, S.C. 2005, c. 20.
[17] The trial of the defendant’s 2 federal contravention charges under the Quarantine Act, had been held on May 6, 2022. After the evidence and closing arguments portion of the trial were completed, the matter was then adjourned until September 22, 2022, for judgment. These, therefore, are the written reasons for judgment:
2. THE CHARGES
[18] On April 5, 2021, after midnight between 00:31 a.m. and 00:33 a.m., the defendant was charged with committing 2 offences under the Quarantine Act, S.C. 2005, c. 20, at Terminal 3 of the Toronto Pearson International Airport that is located at 6310 Terminal Three Road, Mississauga, Ontario. The actual wording of the two charges contained in the 2 Certificates of Offence issued to the defendant on April 5, 2021, are the following:
(1) 3161-1024051F
Filed April 7, 2021
I, N. Dyer believe and certify that
on the day of 2012-04-05, 0033 a.m.,
HUNG, Wai Wun
188 University Ave., [removed for privacy]
Toronto, ON M5H 0A3
[removed for privacy] female
At 6310 Terminal Three Rd Pearson International Airport,
Mississauga
Did commit the offence of
“Failure to comply with a reasonable measure ordered by a screening officer”, contrary to Quarantine Act, S.C. 2005, c. 20, s. 15(3).
Set Fine of $1500.00 Total Payable $1880.00
(2) 3161-1024892F
Filed April 7, 2021
I, N. Dyer believe and certify that
on the day of 2012-04-05, 0031 a.m.,
HUNG, Wai Wun
188 University Ave., [removed for privacy]
Toronto, ON M5H 0A3
[removed for privacy] female
At 6310 Terminal Three Rd Pearson International Airport,
Mississauga
Did commit the offence of
“Failure to comply with an order prohibiting or subjecting to any condition the entry into Canada”, contrary to Quarantine Act, S.C. 2005, c. 20, s. 58.
Set Fine of $3000.00 Total Payable $3755.00
3. BACKGROUND
(a) TESTIMONY OF NICOLE DYER, SCREENING OFFICER
[19] Nicole Dyer testified that she was with the Public Health Agency of Canada and was a screening officer at Terminal Number 3 at the Toronto Pearson International Airport on April 5, 2021, at 12:30 a.m. in the early morning.
[20] Dyer also said that she was from Ottawa and had been deployed to assist at Toronto Pearson International Airport. She said her function at that time was to act as a clinical screening officer who has a medical background. She also said she is a nurse.
[21] In addition, she said that international travellers arriving at Toronto Pearson International Airport would first have to see the Canada Border Services Agency (“CBSA”) and if they did not have the entry requirements, then a sticker would be placed on their passport by the CBSA with a reason why they would need to see a clinical screening officer with the Public Health Agency of Canada, and then they are sent to the clinical screening officer.
[22] Dyer said that one of the reasons for having a sticker placed on a passport of an international traveller was that they did not have the entry requirement of a “government-approved accommodation” booked. Dyer then said that she would also help the international traveller book that accommodation.
[23] Moreover, Dyer said that when an international traveler with a sticker on their passport reached her, Dyer said she would first check the traveller for any COVID symptoms. She said she would take the traveller’s temperature and look for symptoms such as a cough, raspy sore throat, lethargy, sweating, lack of energy and shortness of breath.
[24] At approximately 30 minutes after midnight, Dyer said the defendant, Wai Wun Hung (also going by the name Janice Hung), had come to her from CBSA because she had a sticker on her passport indicating that she did not have the mandated entry requirements after being screened by the CBSA. After taking her temperature and checking the defendant for any COVID symptoms, Dyer concluded that the defendant was asymptomatic because she did not have any overt symptoms and looked well.
[25] Dyer then said that she looked to see if the defendant had booked a 3-night prepaid stay at a government-approved accommodation hotel or facility. Dyer said the defendant did not provide Dyer with a 3-night government-approved accommodation booking.
[26] In addition, Dyer said that she had explained to the defendant about the entry requirements and further explained to the defendant that if the defendant did not meet the entry requirements, the defendant would then be issued a fine. Dyer then said that the defendant opted not to book a 3-night stay at a government-approved accommodation hotel or facility.
[27] Moreover, Dyer said that there had been a list of government-approved accommodation and telephones lined up at her location at the airport, so that international travellers returning to Canada could still book their 3-night stay at that point. She also said that the list had been from low to high cost depending on financial needs. Dyer also said that she did not have to explain to the defendant about the various government-approved accommodation, since the defendant opted for the fine instead.
[28] In addition, Dyer said that the defendant would have been told before coming back to Canada about the pre-entry requirements for which international travellers returning to Canada had to comply with and that the defendant should have booked the 3-night accommodation before returning to Canada. Moreover, Dyer said that travellers returning to Canada would also be offered an opportunity to book that 3-night stay while they were still at her location at the airport in order for the traveller to isolate until the traveller received a negative COVID-19 test result. Dyer said that this entry requirement was the mandate to prevent the spread of COVID.
[29] For the second certificate issued to the defendant, Dyer said that a test referred to as a “Day 1 Test” was required of all travellers arriving at Toronto Pearson International Airport from international travels. This testing was required upon entry into Canada and was set up at the airport terminal that she was located at. However, Dyer said that the defendant did not want to do the test, even though it would not cost the defendant anything to do this Day 1 test.
[30] In addition, Dyer said that the process on that day that was applicable to the defendant upon arrival at Toronto Pearson International Airport for returning international travellers, was for the defendant to first go through customs and be screened by a CBSA officer and if she did not meet the entry requirements then a sticker was placed on the defendant’s passport and she would be sent to the Public Health Agency of Canada for screening for symptoms of COVID, and then information would be provided to the defendant about the legal requirement of booking a 3-night stay at a government-approved accommodation and the requirement of a Day 1 Test. After leaving Dyer’s location the traveller would then be sent to the Accommodation area for booking a hotel that was approved by the federal government if they did not already book a 3-night stay, and then the traveller would go to the Day 1 testing area after having booked a hotel. Then, the traveller would be given a Day 10 testing kit to do at home.
[31] In regard to the defendant, Dyer said that the Day 1 testing was not done that day for the defendant.
[32] Moreover, Dyer said at that time, nurses were all in a line to facilitate the Day 1 testing at the airport. After the Day 1 test was done on a traveller entering Canada, they would then isolate at the government-approved accommodation until the Day 1 Test result came back. Dyer also explained that the result from the Day 1 Test could take up to 3 days to get the result, so that is why a 3-day accommodation was required to be booked at a government-approved accommodation hotel. This specific process Dyer said was instituted to prevent COVID from spreading within the community.
[33] When asked if she recognized the individual she had dealt with at the airport, Dyer said she would not recognize the defendant at a store, as she had dealt with a large volume of people.
[34] In addition, Dyer said that she would have taken the defendant’s passport, recorded the defendant’s date of birth, passport information and country of passport in their database called “QMS”, and would have also checked the photograph in the passport to see if the defendant was the person on the passport. Furthermore, Dyer said she would have utilized that information from the defendant’s passport to issue the tickets. Dyer also said that for the address that was on the tickets, Dyer said that the defendant would have given it to her or it would have been on the defendant’s driver’s licence.
[35] Dyer also said the name of the defendant was Wai Wun Hung and that she had verified the photograph in the passport with the person providing her the passport and that indeed it was Wai Wun HUNG.
[36] In addition, Dyer said that she had verbalized to the defendant what the next step was, which was that the defendant needed Day 1 testing to be done, which was a Day 1 Molecular (PCR) Test. However, Dyers said that she did not tell the defendant about the Day 10 test.
[37] When asked about the sequence of events, Dyer replied that when a traveller arrived in the country they would have to first go through customs and speak with a CBSA officer. Next, they would be directed to the place where they would pick up their suitcases or they would be directed to the Public Health Agency of Canada location to be seen by a screening officer, if they did not meet the entry requirements. The screening officer would then assess why the traveller had been sent to the Public Health Agency of Canada. Dyer then said that they would then help the traveller meet the entry requirements. Dyer also said that she would not be dealing with anyone other than someone who had travelled internationally because that was federal jurisdiction, while provincial jurisdiction would deal with in-country travelers.
[38] Dyer then was shown a document entitled, “Traveller Contact Information Form” (Exhibit #1), that indicated that the defendant was the subject of the form, and in which Dyer had described as a form which indicates where a traveller was coming from, their address and their vaccinations. Dyer also said that the traveller would fill out this form.
[39] In addition, Dyer said that the defendant’s offences had occurred in the municipality of Mississauga at Terminal 3 at the Toronto Pearson International Airport.
[40] Furthermore, Dyer said that she then presented the defendant with 2 fines and returned the defendant’s passport back to the defendant. Dyer also said that the defendant would then go to her home, while other travellers would go to the Day 1 Testing area.
[41] Under cross-examination, Dyer said that she did not have a lengthy conversation with the defendant, but that time was not an issue. Dyer also said that the cost to stay at an approved hotel would be $800 plus for 3 nights, but when questioned about that information not being in her notes, Dyer acknowledged that the specific information about the cost of staying at an approved hotel had not been documented in her notes. Dyer also said that the information about the costs of lodging would be helpful to a returning traveller or to a traveller entering Canada. Dyer also explained that on a case-by-case situation, accommodation would be offered at a quarantine facility to a returning traveller who had financial needs. Dyer also said that travellers were required to show a PCR test to get into the country. Although Dyer said that this information was also not in her notes, she said that if the defendant did not have a PCR test, then the defendant would have to go to the quarantine site and if she had a negative PCR test then she would be granted entry into Canada because the defendant is Canadian. Furthermore, Dyer said that one of the requirements for a traveller to board a flight to Canada was to provide a negative PCR test. That negative PCR test requirement, Dyer said, would be checked for by both the CBSA and the Public Health Agency of Canada. Dyer also said that the validity of the negative PCR test for the defendant was checked and it had been valid for the defendant.
[42] In addition Dyer said that the issue for the defendant was the next stage which was about prevention, and that even though the defendant had been required to provide a negative PCR test 72 hours prior to getting on a flight returning to Canada, the defendant would have been exposed to other people after the negative test, and in order to minimize the risk of COVID being brought into Canada by people coming into Canada from abroad the defendant was required to do a Day 1 PCR test at the airport.
(b) TESTIMONY OF THE DEFENDANT, WAI WUN (JANICE) HUNG
[43] Wai Wun Hung, the defendant, testified that she is 27 years old and is employed as an onboarding specialist, in which the defendant introduces clients to software programs. She also said she has been employed in this position for 9 months. Prior to that, she said she had been laid off because of the COVID pandemic.
[44] In respect to her arrival at Toronto Pearson International Airport on April 5, 2021, the defendant said that it had been Sunday and she had departed Columbia at 7:45 a.m. on April 4, 2021, for Miami, Florida, and from Miami she flew to Toronto Pearson International Airport and landed there at about midnight. After proceeding through the CBSA area, she said she had obtained her luggage and then went to the screening area where she met Nicole Dyer. The defendant also said that Dyer did not ask her for a negative PCR test.
[45] In addition, the defendant said that she had believed that the requirement for entry into Canada was a negative PCR test and then 2 weeks of isolation. She also said that when she booked her flight for Toronto, she had looked up the entry requirements that were needed.
[46] Furthermore, the defendant said that she had been in Columbia for a month. She also said that her original plan had been to return to Canada on March 6, 2021. However, the defendant said that she had booked two flights for Toronto, but both those flights had been cancelled by the airline, and as a result, she had been stuck abroad for one month. She also said that the additional time abroad had been from March 6, 2021, to April 4, 2021. In addition, the defendant said that staying abroad for an extra month had caused her financial hardship. When asked if she had support in Canada, the defendant replied that she only had her mother in Canada.
[47] Moreover, when asked why she had travelled outside Canada, the defendant replied that she had needed to get away for her mental health.
[48] The defendant also said that her intended plan had been to be out of Canada from December 27, 2020, to March 6, 2021.
[49] In addition, the defendant said that when she had reached Screening Officer Dyer in the airport, Dyer had asked the defendant about the mandatory hotel and the COVID test. The defendant also said she had been told by Dyer that she would receive fines and the defendant had replied to Dyer, “O.K.”
[50] When asked about what her quarantine plan had been, the defendant said that she had planned to stay in her friend’s condo for 2 weeks.
[51] In addition, when asked what steps she had done in Columbia to ensure she had met the pre-entry travel requirements, the defendant said she needed a negative PCR test and 2 weeks of isolation.
[52] In cross-examination, the defendant said that her purpose for travelling to Columbia had been to travel with a friend she had met in Mexico. The defendant also said she had been employed and working remotely in Columbia with her current employer. The defendant also explained that she had originally planned to travel to Mexico from December 27, 2020, to March 6, 2021, to work remotely and for pleasure.
[53] In addition, she said she had no intention to travel to Columbia initially, but since she had been unable to travel back to Canada, she then planned to go to Columbia and to continue working In Columbia remotely for the same employer.
[54] When asked what she did to inform herself about the entry requirements for returning to Canada, the defendant said she had the ArriveCAN app which had told her about the requirement of a negative PCR test. The defendant also said she had Googled the entry requirements for flying back to Canada as a Canadian citizen on the Canadian government website and said that she also had to isolate for 2 weeks in Canada.
[55] But more importantly, the defendant said she had not been aware when she arrived in Canada that she had needed the additional entry requirements of undergoing a PCR test at the airport and to stay at a government-approved accommodation for 3 days, although she said she had been aware of these two entry requirements through rumours she had heard about such requirements. However, the defendant said that Dyer had set out to the defendant the requirements of molecular testing when she arrived at the airport and to stay 3 days at a government-approved hotel. In addition, when asked if she had been aware of these entry requirements the defendant had said she was aware of them.
[56] In addition, although the defendant did not inform Screening Officer Dyer about her financial circumstances, the defendant testified that she would have had a financial hardship if she had to stay for 3 days at a hotel. Furthermore, the defendant said that as a Canadian she had the right to enter Canada and not do “mandatory confinement”.
[57] When asked about Googling about the entry requirements for flying back to Canada and her response to that query in which the defendant had believed the entry requirements consisted only of a negative PCR test and a plan to isolate for 2 weeks, the defendant had responded that to stay for 3 days at a government-approved accommodation would have caused her financial hardship because she had to pay for an additional month of accommodation because her booked flights to Canada had been cancelled and that she could not return to Canada at the time she had originally planned. In addition, the defendant said that because she is also a Canadian, she had the right to re-enter Canada and had chosen to exercise her Charter rights at the airport on her return and not book a 3 day stay at a government-approved hotel nor to receive a Day 1 PCR test.
[58] Moreover, the defendant said that the CBSA had given her a sticker. She also said that she had been asked to do an in-site test, but she had declined to do the test. The defendant also said she had been asked once to book accommodation at a government-approved hotel, but she had also declined to book the accommodation.
[59] In addition, when she had been asked about her financial hardship, the defendant replied that she had to pay out of pocket for the 2 flights back to Canada that were cancelled and that she had to pay for living expenses and accommodation for an extra month of stay outside of Canada. She also said that she was still paying off student debts and that the government-approved accommodation for 3 days would have cost her $2,000. However, the defendant said that she did not inform Dyer that she was facing financial hardship and that she also had not been aware that there would be accommodation available for financial hardship cases.
[60] The defendant also said that she did not have any dependents and has moved back in with her mother, but does not pay any rent. She also said she works full-time presently and earns about $60,000 annually.
[61] After her interaction with Dyer, the defendant said she had exited the airport and took an UBER to her friend’s condo where she had quarantined for 2 weeks. She also said that her friend was away, so she had been able to stay at her friend’s condo.
[62] Furthermore, the defendant said that she did not experience any symptoms related to COVID on her arrival in Canada.
[63] When asked if she had referenced any Orders-in-Council in respect to the entry requirements for travel back to Canada, the defendant said that she did not know about any Orders-in-Council, nor did she consult any Orders-in-Council. In addition, when shown a copy of the Order-In-Council that contained the entry requirements for travellers to enter Canada and that had applied to the defendant’s entry back into Canada, the defendant said that she did not recall seeing that document.
[64] Furthermore, the defendant said she had been concerned with the cost of staying at a government-approved accommodation, but when asked about the requirement to take the Day 1 PCR test at the airport which was of no cost, the defendant said that since she already had a negative PCR test done before getting on the flight back to Canada, she did not think she had needed the Day 1 PCR test, even though Dyer had told the defendant that the Day 1 molecular (PCR) test was mandatory.
[65] The defendant also said that she did not believe that she had to book a 3-day prepaid stay at a government-approved hotel or to undergo the Day 1 COVID-19 molecular (PCR) test, since she had believed that it would have violated her Charter rights.
[66] On re-examination, the defendant said that while she was in the layover in Miami on her way back to Canada from Columbia, she had looked up information about her Charter rights on returning to Canada and said that she had Charter rights under s. 6 of the Charter.
(c) THE COVID-19 VIRUS AND VARIANTS OF CONCERN
[67] The World Health Organization had declared a global pandemic on March 11, 2020, in respect to the COVID-19 virus. The virus that was causing COVID-19 is referred to as SARS-CoV-2 (Severe Acute Respiratory Syndrome Coronavirus 2).
[68] Furthermore, Pentney J. of the Federal Court, at para. 11, in Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360, in considering an application for an injunction brought against the federal government’s emergency measures that had been implemented to stop the entry and spread of the SARS-CoV-2 virus, had cited that the virus which causes the potentially severe and life-threatening respiratory disease of COVID-19, had as of March 11, 2021 (one year after the World Health Organization had declared a global pandemic), infected 899,757 people in Canada, and that there had been 22,370 deaths resulting from COVID-19 in Canada. But more significantly, Pentney J. had indicated that over time, scientists had determined that people can transmit the virus while pre-symptomatic or asymptomatic [emphasis is mine below]:
COVID-19 was first detected in China in December 2019 and, by March 2020, the World Health Organization (WHO) had declared a global pandemic. Since then, the Government of Canada, as well as provincial and local governments, have adopted a wide range of public health measures to try to prevent or slow the spread of the SARS-CoV-2 virus -- the virus that causes the potentially severe and life-threatening respiratory disease of COVID-19. As of March 11, 2021, one year after the WHO declared a global pandemic, there had been 899,757 known infections and 22,370 deaths resulting from COVID-19 in Canada. Over time, scientists have determined that people can transmit the virus while pre-symptomatic or asymptomatic.
[69] In addition, in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622, at paras. 19 to 27, Crampton C.J. of the Federal Court had explained that COVID-19 is a disease that is caused by a coronavirus known as SARS-CoV-2. Crampton C.J. also indicated that COVID-19 was first detected in China in December 2019 and has since spread across the globe. In the year following the detection of the COVID-19 virus, Crampton C.J. noted that it had been reported that the virus had infected more than 118 million people and to have been associated with 2.6 million deaths worldwide. In addition, Crampton C.J. said that as of January of 2021, three Variants of Concern had been identified: (1) B.1.1.7 (which was first identified in the United Kingdom), (2) B.1351 (which was first identified in South Africa), and (3) P.1 (which was first identified in Brazil). And, as of February 11, 2021, Crampton C.J. stated that all three of those Variants of Concern had been identified in Canada and had infected approximately 458 individuals. And, by March 28, 2021, Crampton C.J. noted that the B.1.1.7 variant had infected 7,725 people in Canada, whereas B.1.351 had infected 269 and P.1 had infected 272 [emphasis is mine below]:
III. COVID-19
Unless otherwise indicated, the following evidence pertaining to COVID-19 does not appear to be contested. It was provided by one of the Respondent's affiants, Dr. Philippe Guillaume Poliquin, whose credentials are briefly discussed in Part IV below.
COVID-19 is a disease caused by a coronavirus known as SARS-CoV-2. It was first detected in China in December 2019 and has since spread across the globe. It was declared a pandemic by the World Health Organization in March 2020. In the ensuing year, it was reported to have infected more than 118 million people, and to have been associated with 2.6 million deaths worldwide. In that same period, there were 899,757 infections and 22,370 deaths resulting from COVID-19 in Canada.
As with other coronaviruses, SARS-CoV-2 is spread among humans primarily through human-to-human transmission. This occurs through the inhalation of infectious respiratory droplets and, in some situations, through aerosols created when an infected person coughs, sneezes, sings, shouts or talks.
Some individuals infected with the virus remain asymptomatic [Asymptomatic Carriers], meaning that they show little or no symptoms and might therefore be unaware that they are infected. Despite showing no symptoms, Dr. Poliquin stated that such persons can still transmit COVID-19 to other people in their surroundings. This statement was disputed by some of the Applicants. However, they provided no evidence that contradicted Dr. Poliquin's evidence on this matter.
Individuals who are infected but have not yet begun exhibiting symptoms are known as pre-symptomatic carriers [Pre-symptomatic Carriers]. They can also spread the disease. The median incubation time, that is, the time between exposure to the virus and the development of COVID-19 symptoms, is five days. However, it is believed that symptoms can appear up to 14 days from the moment an individual has been exposed to COVID-19.
The period of time during which a person can spread the disease is known as the window of communicability. This period starts in the pre-symptomatic period and usually lasts 10 days from the onset of symptoms.
Like all viruses, the virus that causes COVID-19 naturally mutates over time, meaning that there will be a change in the genetic material in the virus. However, not all variants are of public health concern. It is only when a mutation causes an increase in transmissibility, an increase in virulence (severity of disease) or a decrease in effectiveness of the available diagnostics, vaccines or treatments that a variant of interest becomes a "variant of concern" [Variant of Concern]. As of January of this year, three Variants of Concern had been identified. Those were B.1.1.7 (which was first identified in the United Kingdom), B.1351 (which was first identified in South Africa), and P.1 (which was first identified in Brazil).
As of February 11, 2021, all three of those Variants of Concern had been identified in Canada. Collectively, they had infected approximately 458 individuals. The Public Health Agency of Canada [PHAC] was very concerned that the increased transmissibility of those variants, and their potential resistance to immunity and vaccines, risked substantially increasing the number of infections in the country. PHAC was also concerned that this would lead to a significant increase in the number of hospitalizations and deaths, and to a potential reduction in the effectiveness of vaccines.
As of March 28, 2021, the B.1.1.7 variant had infected 7,725 people in Canada, whereas B.1.351 had infected 269 and P.1 had infected 272.
(d) THE FEDERAL GOVERNMENT’S JURISDICTION TO LEGISLATE IN RESPECT TO THE USE OF QUARANTINE
[70] Under the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), the Parliament of Canada has been given the exclusive authority under s. 91(11) to make laws for the Peace, Order and good Government of Canada in respect to the use of “quarantine” [emphasis is mine below]:
Legislative Authority of Parliament of Canada
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
Quarantine and the Establishment and Maintenance of Marine Hospitals.
(e) OBJECTIVES OF THE QUARANTINE ACT, S.C. 2005, C. 20
[71] The Quarantine Act, S.C. 2005, c. 20, is federal legislation enacted by the Parliament of Canada to regulate the use of quarantine to prevent the introduction and spread of communicable diseases in Canada. Furthermore, the Quarantine Act had been enacted after the 2002–2004 SARS outbreak in Canada. The Act grants powers to the Federal Government to designate quarantine facilities, require health screenings upon arrival or exit of the country, and issue emergency orders that impose conditions or prohibitions on the entry of individuals or imports in order to prevent the spread of communicable diseases. In addition, the Act imposes fines on those who disobey quarantine officers or quarantine orders. More importantly, in response to the COVID-19 pandemic the Federal Government of Canada has implemented health measures and entry requirements for travelers entering Canada from abroad through Emergency Orders that have been issued under the Quarantine Act.
[72] The purpose of the Quarantine Act, as set out in the preamble and s. 4 of that legislation, states that it is to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases:
An Act to prevent the introduction and spread of communicable diseases
Purpose
- The purpose of this Act is to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases.
(f) HOW WERE THE MANDATED ENTRY REQUIREMENTS FOR AIR TRAVELLERS ENTERING CANADA FROM ABROAD LEGALLY CREATED AND IMPLEMENTED?
[73] Section 58 of the Quarantine Act, S.C. 2005, c. 20, empowers the Governor-in-Council to issue emergency orders that prohibit entry into Canada or subject the entry into Canada of any class or persons who have been in a foreign country if the Government of Canada is of the opinion that there is an outbreak of a communicable disease in the foreign country; that the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada; that 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 that no reasonable alternatives to prevent the introduction or spread of the disease are available. In addition, the emergency order will have effect for the period specified in it and may be renewed if the conditions for using the emergency orders continue to apply:
Emergency Orders
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.
Effect of order
(2) The order has effect for the period specified in it and may be renewed if the conditions in subsection (1) continue to apply.
(g) SOME OF THE ENTRY REQUIREMENTS AND HEALTH MEASURES THAT WERE ISSUED BY EMERGENCY ORDERS UNDER THE QUARANTINE ACT IN 2020 AND 2021 TO PREVENT THE SPREAD OF THE COVID-19 ILLNESS THROUGH TRAVELLERS ENTERING CANADA FROM ABROAD
[74] During the years 2020 and 2021, the Public Health Agency of Canada under the Quarantine Act implemented entry requirements and health measures which included: banning certain foreign nationals travelling to Canada from all countries with limited exceptions for persons travelling from the United States; prohibiting foreign nationals from travelling to Canada for optional or discretionary purposes; requiring all persons who enter Canada to isolate or quarantine for 14 days; requiring air travellers who are 5 years and older entering Canada from abroad to provide proof of a current negative COVID-19 molecular test taken within 72 hours before the aircraft’s initialed scheduled departure time or to present proof of a positive COVID-19 result of a test performed 14 to 90 days prior to the initial scheduled arrival time; requiring air travellers entering Canada from abroad who do not provide proof of a current negative COVID-19 molecular test to quarantine for 14 days at a designated federal facility or at an alternate site deemed appropriate by a quarantine officer; requiring air travellers entering Canada from aboard of having to stay at a government-approved accommodation while awaiting the first post-entry COVID-19 molecular test and the requirement for them to submit evidence by electronic means that they have pre-booked and pre-paid for government-approved accommodation for a three-day period prior to boarding their flight to Canada that would be verified on arrival; requiring air travellers entering Canada from aboard of having to provide a suitable quarantine plan for 14 days; travellers entering from abroad having to answer questions and provide information to peace officers on request; requiring all travellers entering Canada from abroad to undergo a COVID-19 molecular test at the time of entry and once again during the 14 day entry period while in quarantine; requiring all travellers entering Canada from abroad having to provide their contact information and a suitable quarantine plan electronically prior to seeking entry to Canada; and prohibiting foreign nationals from entering Canada from the United States if they fail to meet the pre-arrival testing obligations.
(h) WHY WERE THE ENTRY REQUIREMENTS FOR AIR TRAVELLERS ENTERING CANADA FROM ABROAD IMPLEMENTED?
[75] Pentney J. in Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.), at paras. 15 to 23, explained that the policy reason for the Federal Government creating and implementing entry requirements for travellers from outside Canada arriving by air had been because of the emergence of the COVID-19 variants of concern which had triggered a series of responses in Canada and abroad. Pentney J. also noted that as of December 27, 2020, there were six known or suspected cases of the B.1.1.7 variant in Canada and that the federal government’s response to the variants of concern had been to suspend all incoming flights from the United Kingdom until January 6, 2021, and to implement a pre-departure testing requirement for all travellers entering Canada by air on January 7, 2021. Pentney J. further indicated that as of January 7, 2021, travellers entering Canada were required to provide written proof of a negative COVID-19 molecular (PCR) test performed no more than 72 hours prior to the scheduled departure of their flight to Canada, or to provide a positive test result from between 14 to 90 days prior to departure. In addition, Pentney J. noted that by February 11, 2021, there were 458 known COVID-19 cases in Canada involving a variant of concern, including the first detected case of the P.1 variant from Brazil. In addition, Pentney J. indicated that the data from two studies of incoming travellers to Canada had shown a threefold increase in the number of flights with at least one positive case between September 2020 and January 2021. Pentney J. also reasoned that this data had confirmed that these numbers had increased despite a relatively stable volume of international air passengers arriving in Canada during this period and that the increase in numbers had shown that a higher proportion of travellers were infected when they arrived in Canada. Moreover, Pentney J. commented on other data that indicated between September and December 2020, after the requirement for pre-departure testing was imposed, approximately 2% of travellers were testing positive for COVID-19. Pentney J. also remarked that evidence from an Alberta pilot project, which was conducted at the Calgary International Airport and the Coutts land border crossing, showed that international travellers arriving in Canada were exposing and potentially infecting others with whom they had contact during the period when they were instructed to remain in isolation and to quarantine at home. In addition, even after the pre-departure testing had been implemented, Pentney J. said that the Alberta study had also revealed that 1.86% of participants had tested positive within 14 days of their return and that 68% had tested positive on arrival. Furthermore, Pentney J. indicated that in the Affidavit of Kimby Barton, who was one of the Respondent's affiants, Barton had explained that "for every flight of 100 people arriving in Canada, on average one or two were infected with COVID-19". Moreover, Pentney J. mentioned other data from the Alberta study, as well as a McMaster Health Labs testing pilot, that had shown that the majority of imported COVID-19 cases were detected on arrival (67-69%), but a further 25.8% were only identified by testing at day seven, with the remaining 5.6% positive cases identified by testing at day 14. Also, Pentney J. noted that data from testing of travellers on flights from January 10 to 18, 2021, who had arrived from a country lacking the resources to administer pre-departure testing had shown a COVID-19 positivity rate of 6.8% in asymptomatic travellers. Furthermore, Pentney J. indicated that since the start of the COVID-19 pandemic in March of 2020, the Governor-in-Council or Administrator-in-Council had issued 47 Orders-in-Council pursuant to section 58 of the Quarantine Act, SC 2005, c 20, which sets out the following requirements for emergency orders [emphasis is mine below]:
B. Emerging Variants of the COVID-19 Virus
As with other viruses, the virus that causes COVID-19 naturally mutates over time through a change in its genetic material. While not all variants are of public health concern, some variants cause increased transmissibility, and an increase in virulence (i.e. the severity of the disease), or a decrease in the effectiveness of available diagnostics, vaccines, and treatments. These are known as variants of concern (VOC). At the time of the hearing, the record reflected three such VOC having been identified for COVID-19, while other variants remained under study.
On December 18, 2020, Public Health England designated a new VOC identified as B.1.1.7, which had been circulating in the United Kingdom since at least September 2020. On December 18, 2020, South Africa also reported a new VOC, which was ultimately labelled as B.1.351. By December 29, 2020, the European Centre for Disease Prevention and Control assessed that the introduction of the B.1.1.7 and B.1.351 variants was concerning and could result in an increase in hospitalizations and deaths. Evidence emerged that the B.1.1.7 VOC is up to 70% more transmissible than the previously circulating virus.
A further new VOC originating from Brazil was identified on January 9, 2021, and was labelled the P.1 variant. Evidence emerged from scientific studies that both the P.1 and B.1.351 variants were more transmissible than earlier strains of the virus, and that vaccines were potentially less effective against them. It was also revealed that the P.1 variant might evade protective immunity from prior infection, so that people were susceptible to reinfection even if they had previously recovered from an earlier strain of COVID-19.
The emergence of the COVID-19 VOC triggered a series of responses in Canada and abroad.
As of December 27, 2020, there were six known or suspected cases of the B.1.1.7 variant in Canada. The Government of Canada suspended all incoming flights from the United Kingdom until January 6, 2021, and implemented a pre-departure testing requirement for all travellers entering Canada by air on January 7, 2021. As of that date, travellers entering Canada were required to provide written proof of a negative COVID-19 molecular test performed no more than 72 hours prior to boarding their flight to Canada, or a positive test result from between 14 to 90 days prior to departure.
By February 11, 2021, there were 458 known COVID-19 cases in Canada involving a VOC, including the first detected case of the P.1 variant from Brazil. In addition, data from two studies of incoming travellers to Canada showed a threefold increase in the number of flights with at least one positive case between September 2020 and January 2021. This data confirmed that these numbers had increased despite a relatively stable volume of international air passengers arriving into Canada during this period (i.e. the increase showed that a higher proportion of travellers were infected when they arrived in Canada).
Several other important data points also emerged during this period. Between September and December 2020, after the requirement for pre-departure testing was imposed, approximately 2% of travellers were testing positive for COVID-19. Evidence from an Alberta pilot project, which was conducted at the Calgary International Airport and the Coutts land border crossing, showed that international travellers arriving in Canada were exposing and potentially infecting others with whom they had contact during the period when they were instructed to remain in isolation and to quarantine at home. The Alberta study also revealed that, even after the pre-departure testing was implemented, 1.86% of participants tested positive within 14 days of their return, 68% of whom tested positive on arrival. As one of the Respondent's affiants explains: "In other words, for every flight of 100 people arriving in Canada, on average one or two were infected with COVID-19" (Affidavit of Kimby Barton, RR, Vol 1 at p 10).
Data from the Alberta study as well as a McMaster Health Labs testing pilot showed that the majority of imported COVID-19 cases were detected on arrival (67-69%), but a further 25.8% were only identified by testing at day seven, with the remaining 5.6% positive cases identified by testing at day 14. Additionally, data from testing of travellers on flights from January 10-18, 2021, arriving from a country lacking the resources to administer pre-departure testing showed a COVID-19 positivity rate of 6.8% in asymptomatic travellers.
C. Public Health Measures and Orders-in-Council
To respond to the changing landscapes, since the start of the COVID-19 pandemic in March 2020, the Governor-in-Council or Administrator-in-Council has issued 47 Orders-in-Council pursuant to section 58 of the Quarantine Act, SC 2005, c 20, which sets out the following requirements for emergency orders:
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.
[76] In addition, Pentney J. stated at paras. 24 to 29 in Spencer v. Canada (Attorney General) that the Emergency Order with preventive measures that had been adopted in February of 2021, had been in response to the rapid rise in the number of detected cases and Variants Of Concern in Canada and the cumulative evidence gathered by the Alberta and McMaster Health Lab studies. Pentney J. also noted that on February 14, 2021, the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation, and Other Obligations), PC #2021-0075, (2021) Canada Gazette, Part 1, Vol. 155, No 8, at p. 673, as corrected by Canada Gazette, Part 1, Vol. 144, No. 9, at p. 854 came into effect and which had established a number of requirements which were intended to add to the existing protections against the importation of new variants of COVID-19 into the country. These measures had included:
a) pre-departure COVID-19 molecular testing;
b) COVID-19 molecular testing upon arrival in Canada;
c) a suitable 14-day quarantine plan;
d) a requirement to book prepaid accommodation at a government-authorized accommodation for a three-night period, beginning on the day of arrival in Canada;
e) daily reporting of symptoms following arrival in Canada;
f) a further COVID-19 molecular test on or about day 10 after arrival.
Pentney J. also stated that on March 21, 2021, Order-in-Council PC #2021-0075 was replaced by a virtually identical one: Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation, and Other Obligations), PC #2021-0174, (2021) Canada Gazette, Part 1, Vol. 144, No. 14, 1499, which was set to expire on April 21, 2021, and which is the Emergency Order that applies to the defendant when she had arrived by air on April 5, 2021. Moreover, Pentney J. commented that Order-In-Council PC #2021-0174 has the same purpose and largely mirrors Order-In-Council PC #2021-0075. Additionally, Pentney J. noted that Order-In-Council PC #2021-0174 sets out limited exceptions to the requirements for air travellers entering Canada from abroad to stay at a government-approved hotel for 3 days. These exceptions Pentney J. explained included persons entering Canada to receive essential medical treatment or those returning to Canada after having received essential medical treatment elsewhere, and persons entering Canada for the purposes of providing emergency services within 14 days of entry [emphasis is mine below]:
Of relevance to this injunction application is the Order-in-Council adopted in response to the rapid rise in the number of detected cases and VOC in Canada and the cumulative evidence gathered by the Alberta and McMaster Health Lab studies, which spurred government officials to consider further preventive measures.
On February 14, 2021, Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation, and Other Obligations), PC 2021-75, (2021) C Gaz, Part 1, Vol 155, No 8, 673, as corrected by C Gaz, Part 1, Vol 144, No 9, 854 [PC 2021-75] came into effect, establishing a number of requirements intended to add to the existing protections against the importation of new variants of COVID-19 into the country. These measures include:
a) pre-departure COVID-19 molecular testing;
b) COVID-19 molecular testing upon arrival in Canada;
c) a suitable 14-day quarantine plan;
d) a requirement to book prepaid accommodation at a government-authorized accommodation for a three-night period, beginning on the day of arrival in Canada;
e) daily reporting of symptoms following arrival in Canada;
f) a further COVID-19 molecular test on or about day 10 after arrival.
Two types of government-approved facilities are contemplated for air travellers under the measures in PC 2021-75: (i) a government-authorized accommodation (GAA) and (ii) a designated quarantine facility (DQF). First, air travellers must go to a GAA near their first port of entry where they wait for the results of their molecular testing, which they are required to take upon arrival. GAAs are hotels that air travellers must pre-book and prepay for a three-night stay at their own expense. Asymptomatic travellers may check-out of the GAA upon receiving a negative result from their COVID-19 test taken upon arrival (they must complete the remainder of the 14-day quarantine at home, however). Those who test positive are contacted by a Public Health Agency of Canada (PHAC) Quarantine Officer to verify that they continue to have a suitable isolation plan and are able to get there by a private mode of transportation. If travellers do not have a suitable place to isolate, the Quarantine Officer will direct them to a DQF to isolate for the remainder of their 14-day mandatory isolation.
In addition to housing COVID-19 positive air travellers who do not have a suitable isolation plan, DQFs are for air travellers who are showing symptoms of COVID-19 upon arrival, those who arrive without an approved pre-departure test (i.e. a molecular COVID-19 test), or those who refuse to be tested upon arrival.
On March 21, 2021, Order-in-Council PC 2021-75 was replaced by a virtually identical one: Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation, and Other Obligations), PC 2021-174, (2021) C Gaz, Part 1, Vol 144, No 14, 1499 [PC 2021-174], which was set to expire on April 21, 2021. PC 2021-174 has the same purpose and largely mirrors PC 2021-75. Additionally, it sets out limited exceptions to the requirements for air travellers to stay at a GAA. These exceptions include persons entering Canada to receive essential medical treatment or those returning to Canada after having received essential medical treatment elsewhere, and persons entering Canada for the purposes of providing emergency services within 14 days of entry.
Although PC 2021-174 and PC 2021-75 are necessarily related, the injunctive relief sought by the Applicants asks this Court to suspend PC 2021-174 pending the determination of their application on its merits, given that PC 2021-75 was repealed when PC 2021-174 came into effect. Specifically, the Applicants impugn the requirement to stay at a GAA while awaiting test results and the stipulation that certain individuals would have to go to a DQF upon arrival if they had symptoms of COVID-19, or had failed to obtain a molecular pre-departure test and/or refused to undergo a test upon arrival.
(i) THE ENTRY REQUIREMENTS FOR AIR TRAVELLERS ENTERING CANADA FROM ABROAD ON APRIL 5, 2021, THAT ARE RELEVANT TO THE DEFENDANT
[77] The two entry requirements for air travellers entering Canada from abroad of having to book a 3-day prepaid stay at a government-approved hotel and having to undergo the Day 1 COVID-19 molecular (PCR) test at the airport upon arrival, which were allegedly not complied with by the defendant on April 5, 2021, and which led to the defendant being charged with offences under ss. 15(3) and 58 the Quarantine Act, S.C. 2005, c. 20, are measures issued by the Administrator in Council under Order-In-Council P.C. #2021-0174 on March 19, 2021. Order-In-Council P.C. #2021-0174 is entitled the “Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations)” and had replaced Order-In-Council P.C. # 2021-0075 that was issued on February 14, 2021. This particular Emergency Order, which applies to the defendant, cease to have effect at 11:59:59 p.m. Eastern Daylight Time on April 21, 2021.
[78] In addition, there were other entry requirements under Order-In-Council P.C. #2021-0174 that are relevant to the defendant. These include the entry requirement of having to provide to the aircraft operator a negative COVID-19 molecular test within 72 hours of the scheduled departure of the flight to Canada and having to provide a suitable quarantine plan for 14 days electronically to the Minister of Health before boarding the flight to Canada.
(1) Why Did The Federal Government Implement The Entry Requirements Or Measures Under Order-in-Council PC #2021-0174 That Was Issued On March 19, 2021, Such As The Booking And Prepaying For A 3-Day Stay At A Government-Approved Hotel And Having To Undergo The Day 1 COVID-19 Molecular (PCR) Test For Air Travellers Entering Canada From Abroad?
(a) Objective of Order-In Council PC #2021-0174
[79] The objective of Order-In Council PC #2021-0174, which is the Emergency Order that is applicable to the defendant on April 5, 2021, is set out on p. 1537 in the “Explanatory Note” that follows the Order which had been published in the Canada Gazette Part I, Volume 155, Number 14, and states that it is to maintain Canada’s focus on reducing 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 [emphasis is mine below]:
EXPLANATORY NOTE
Objective
This Order, like its predecessor, maintains Canada’s focus on reducing 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. This Order repeals and replaces the previous order of the same name with some changes as described below in the Implications section. It comes into force on March 21, 2021, and expires on April 21, 2021. This Order continues to require all persons who enter Canada, whether by air, land, or sea, to provide accurate contact information for the first 14 days in Canada, to answer questions to determine if they have signs or symptoms of COVID-19 and, with limited exemptions, quarantine or isolate for 14 days from the day upon which they entered Canada. The Order maintains all requirements for travellers to have a negative COVID-19 molecular test result before entering Canada, and to undergo testing when entering and once again later in the 14-day post-entry period, subject to limited exceptions. This Order also continues to require that all travellers entering Canada by air, with limited exceptions, enter a government-authorized accommodation near the first port of entry while awaiting the result of the first post-entry test.
[80] The purpose for implementing the measures and entry requirements for travellers entering Canada from abroad that are contained in Order-In-Council PC #2021-0174 is also set out in the preamble of that Emergency Order, which included that the Administrator-in-Council was of the opinion, based on the declaration of a pandemic by the World Health Organization, that there is an outbreak of a communicable disease, namely coronavirus disease 2019 (COVID-19), in the majority of foreign countries and that the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada; that the Administrator in Council is of the opinion that the entry of persons into Canada who have recently been in a foreign country may introduce or contribute to the spread in Canada of the disease or of new variants of the virus causing COVID-19 that pose risks that differ from those posed by other variants but that are equivalent or more serious; and that the Administrator in Council is of the opinion that no reasonable alternatives to prevent the introduction or spread of the disease are available [emphasis is mine below]:
Whereas the Administrator in Council is of the opinion, based on the declaration of a pandemic by the World Health Organization, that there is an outbreak of a communicable disease, namely coronavirus disease 2019 (COVID-19), in the majority of foreign countries;
Whereas the Administrator in Council is of the opinion that the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;
Whereas the Administrator in Council is of the opinion that the entry of persons into Canada who have recently been in a foreign country may introduce or contribute to the spread in Canada of the disease or of new variants of the virus causing COVID-19 that pose risks that differ from those posed by other variants but that are equivalent or more serious;
And whereas the Administrator in Council is of the opinion that no reasonable alternatives to prevent the introduction or spread of the disease are available;
Therefore, His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Health, pursuant to section 58 of the Quarantine Act, makes the annexed Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations).
(2) Definitions That Are Relevant To The Defendant’s Two Charges Under The Quarantine Act
[81] The following definitions set out in s. 1.1 of Order-In-Council PC #2021-0174 are applicable to the defendant’s two charges:
Definitions
1.1 The following definitions apply in this Order.
Chief Public Health Officer means the Chief Public Health Officer appointed under subsection 6(1) of the Public Health Agency of Canada Act. (administrateur en chef)
COVID-19 molecular test means a COVID-19 screening or diagnostic test carried out by an accredited laboratory, including a test performed using the method of polymerase chain reaction (PCR) or reverse transcription loop-mediated isothermal amplification (RT-LAMP). (essai moléculaire relatif à la COVID-19)
evidence of a COVID-19 molecular test means evidence of a COVID-19 molecular test that contains the following elements:
(a) the name and date of birth of the person whose specimen was collected for the test;
(b) the name and civic address of the laboratory that administered the test;
(c) the date the specimen was collected and the test method used; and
(d) the test result. (preuve d’essai moléculaire relatif à la COVID-19)
government-authorized accommodation means an accommodation that is authorized by
(a) the Public Health Agency of Canada, Canadian Forces, Department of Citizenship and Immigration, Department of Employment and Social Development or Department of Agriculture and Agri-Food, or
(b) the government of a province with agreement from the Government of Canada. (lieu d’hébergement autorisé par le gouvernement)
isolation means the separation of persons who have reasonable grounds to suspect that they have COVID-19, who have signs and symptoms of COVID-19 or who know that they have COVID-19, in such a manner as to prevent the spread of the disease. (isolement)
quarantine means the separation of persons in such a manner as to prevent the possible spread of disease. (quarantaine)
quarantine facility means a place that is designated under section 7 of the Quarantine Act or that is deemed to be designated under subsection 8(2) of that Act, and that is chosen by the Chief Public Health Officer. (installation de quarantaine)
signs and symptoms of COVID-19 include a fever and a cough or a fever and difficulty breathing. (signes et symptômes de la COVID-19)
(3) PROVIDING A SUITABLE QUARANTINE PLAN FOR 14 DAYS
(a) When was the entry requirement first implemented for air travellers entering Canada from abroad of having to provide by electronic means to the Minister of Health a suitable quarantine plan for 14 days before boarding the flight to Canada?
[82] The entry requirement for travellers entering Canada by air of providing a suitable “quarantine plan” for 14 days by electronic means to the Minister of Health was effective and first implemented at 11:59:59 p.m. on November 20, 2020, by s. 15 of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 7, P.C. #2020-0840, (October 30, 2020) Canada Gazette Part I, Volume 154, Number 45, November 27, 2020, pursuant to s. 58 of the Quarantine Act. This entry requirement was set out in s. 1.1(2) of Order-In-Council P.C. #2020-0840:
Amendments to this Order
- This Order is amended by adding the following after section 1:
Requirements Before or When
Entering Canada
Quarantine plan – entering by aircraft
1.1(2) Subject to subsection (4), every person must meet the following requirements before boarding a flight to Canada:
(a) they must provide to the Minister of Health a quarantine plan that includes, among other things, the civic address of the place where they plan to quarantine themselves during the 14-day period that begins on the day on which they enter Canada and their contact information for that period; and
(b) they must provide the quarantine plan referred to in paragraph (a) by electronic means specified by the Minister of Health, unless they are in a class of persons who, as determined by the Minister of Health, are unable to submit their quarantine plans by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption, or a natural disaster, in which case the quarantine plan may be provided in a form and manner and at a time specified by the Minister of Health.
(b) The entry requirement for air travellers entering Canada from abroad of having to provide a Quarantine Plan for 14 days by electronic means to the Minister of Health, screening officer, or quarantine officer was still in effect on April 5, 2021
[83] The entry requirement for air travellers entering Canada from abroad to provide a “quarantine plan” for 14 days by electronic means to the Minister of Health before boarding the flight to Canada was still in effect on April 5, 2021, when the defendant arrived at Toronto Pearson International Airport. This was by virtue of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), Order-In-Council P.C. #2021-0174, (March 19, 2021).
[84] The suitable “quarantine plan” entry requirement that was in effect on April 5, 2021, is contained in ss. 3.1(a)(ii)(A), 3.1(a)(ii)(B), and 3.2(3) of Order-In Council PC #2021-0174, and requires the air traveller entering Canada having to provide to the Minister of Health their contact information and the name and civic address of the “government-authorized accommodation” where they plan to quarantine themselves during the period that begins on the day on which they enter Canada and to remain in quarantine until the day on which they receive the result for the COVID-19 molecular test (the 3-day stay) and the civic address of the place where they plan to quarantine themselves during the period that begins on the day on which they receive evidence of a negative result for the COVID-19 molecular test and remain in quarantine for the remainder of the 14-day period that begins on the day on which they enter Canada. And, under ss. 3.2(2) and 3.2(3), before the air traveller boards the flight to Canada, they must provide the quarantine plan by electronic means that has been specified to the Minister of Health. And when the traveller enters Canada, under s. 3.2(1) the traveller has to provide the suitable quarantine plan to the Minister of Health, screening officer, or quarantine officer [emphasis is mine below]:
Quarantine Plan and Other Measures
Suitable quarantine plan
3.1 A suitable quarantine plan must
(a) include
(i) in the case of a person entering Canada by a mode of transport other than aircraft, the civic address of the place where they plan to quarantine themselves during the 14-day period that begins on the day on which they enter Canada,
(ii) in the case of a person entering Canada by aircraft,
(A) the name and civic address of the government-authorized accommodation where they plan to quarantine themselves during the period that begins on the day on which they enter Canada and to remain in quarantine until the day on which they receive the result for the COVID-19 molecular test referred to in paragraph 2.3(1)(a), and
(B) the civic address of the place where they plan to quarantine themselves during the period that begins on the day on which they receive evidence of a negative result for the COVID-19 molecular test referred to in paragraph 2.3(1)(a) and remain in quarantine for the remainder of the 14-day period that begins on the day on which they enter Canada, and
(iii) their contact information for the 14-day period that begins on the day on which they enter Canada;
(b) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows them to avoid all contact with other people with whom they did not travel unless they are a minor, in which case the minor can have contact with other people who are providing care and support to the minor and who reside with the minor during the 14-day period that begins on the day on which they enter Canada or that begins again under subsection 4.9(1);
(c) indicate that no person will be present at the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, unless that person resides there habitually;
(d) indicate that the person has access to a bedroom at the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, that is separate from the one used by persons who did not travel with and enter Canada with that person;
(e) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to access the necessities of life without leaving that place;
(f) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to avoid all contact with vulnerable persons and persons who provide care to those persons, unless the vulnerable person is a consenting adult or the parent or dependent child in a parent-child relationship; and
(g) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to avoid all contact with health care providers and persons who work or assist in a facility, home or workplace where vulnerable persons are present.
Quarantine plan — requirements
3.2(1) Subject to subsection 3.3(1), every person who enters Canada must provide to the Minister of Health, screening officer or quarantine officer a quarantine plan that meets the requirements set out in section 3.1.
Quarantine plan — mode of transport
(2) For the purposes of subsection (1), the person must provide their quarantine plan
a) before entering Canada, if the person enters Canada by land;
b) before boarding the aircraft for the flight to Canada, if the person enters Canada by aircraft; or
c) before or when entering Canada, if the person enters Canada by water.
Electronic means — land and aircraft
(3) A person referred to in paragraphs (2)(a) and (b) must provide the quarantine plan referred to in subsection (1) by electronic means specified by the Minister of Health, unless they are a member of a class of persons who, as determined by the Minister, are unable to submit their quarantine plan by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the quarantine plan may be provided in the form and manner and at the time specified by the Minister of Health.
(i) What is the “electronic means” that has been specified by the Minister of Health for providing the quarantine plan to the Minister of Health,
[85] The “electronic means” that has been specified by the Minister of Health for providing the quarantine plan to the Minister of Health was for air travellers entering Canada to use the “ArriveCAN” mobile app. The ArriveCAN mobile app had been the only electronic means specified and adopted by the Minister of Health which commenced on November 21, 2020[11] and was still the method used on April 5, 2021.
[86] The defendant had testified that she had indeed used the ArriveCAN app and had provided her quarantine plan electronically. Under s. 3.1 of Order-In-Council P.C. #2021-0174, the 14-day quarantine plan entry requirement for air travellers entering Canada from abroad, in which the air traveller had to provide the “quarantine plan” by electronic means (by using the ArriveCAN app) to the Minister of Health before boarding their flight to Canada, had to include the name and civic address of the “government-authorized accommodation” where they had planned to quarantine themselves during the period that begins on the day on which they enter Canada and to remain in quarantine until the day on which they receive the result for the COVID-19 molecular test (first 3 days of the 14 days) and the civic address of the place where they plan to quarantine themselves during the period that begins on the day on which they receive evidence of a negative result for the COVID-19 molecular test and remain in quarantine for the remainder of the 14-day period that begins on the day on which they enter Canada (the remaining 11 days of the 14 days). Accordingly, when the defendant had to submit her 14-day quarantine plan by electronic means (using the ArriveCAN app) to the Minister of Health before she boarded her flight back to Canada, she would have become aware or ought to have been aware before she boarded her flight to Canada of the requirement to provide the civic address of the “government-authorized accommodation” where she would have to stay for the first 3 days of her 14-day quarantine after entering Canada, since she had been legally required to provide the name and the civic address of the government-authorized hotel as part of her 14-day quarantine plan to the Minister of Health prior to boarding her flight to Canada.
(4) PROVIDING A NEGATIVE COVID-19 MOLECULAR (PCR) TEST TO THE AIRCRAFT OPERATOR WITHIN 72 HOURS BEFORE THE SCHEDULED DEPARTURE OF THE FLIGHT TO CANADA
(a) When was the entry requirement for air travellers entering Canada from abroad of having to provide a negative COVID-19 molecular (PCR) test to the aircraft operator within 72 hours before the aircraft’s initial scheduled departure time for Canada first implemented?
[87] The entry requirement for travellers entering Canada by air of providing a “negative COVID-19 molecular (PCR) test within 72 hours before the aircraft’s initial scheduled departure time for Canada” to the aircraft operator was effective and first implemented at 11:59:59 p.m. on January 6, 2021, by virtue of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 7, P.C. #2021-0001, (January 6, 2021) Canada Gazette Part I, Volume 155, Number 3, January 16, 2021, pursuant to s. 58 of the Quarantine Act. This requirement for an air traveller to provide to the aircraft operator a “negative COVID-19 molecular (PCR) test within 72 hours before the aircraft’s initial scheduled departure time for Canada” is set out in s. 1.1(3)(a)(i) of Order-In-Council P.C. #2021-0001 which provides:
Requirements Before or When Entering Canada
Entering by aircraft — COVID-19 molecular test and quarantine plan
1.1(3) Subject to subsection (4), every person who enters Canada by aircraft must meet the following requirements:
(a) before boarding the aircraft for the flight to Canada, they must:
(i) if the person is five years of age or older, provide to the aircraft operator evidence containing the following elements that they received a negative result for a COVID-19 molecular test that was performed on a specimen that was collected no more than 72 hours, or no more than another period under any other provision of the Aeronautics Act, before the aircraft’s initial scheduled departure time:
(A) the person’s name and date of birth,
(B) the name and civic address of the laboratory that administered the test,
(C) the date the specimen was collected and the test method used, and
(D) the test results,
(ii) provide to the Minister of Health a quarantine plan that includes, among other things, the civic address of the place where they plan to quarantine themselves during the 14-day period that begins on the day on which they enter Canada and their contact information for that period, and
(iii) provide the quarantine plan by electronic means specified by the Minister of Health, unless they are in a class of persons who, as determined by the Minister of Health, are unable to submit their quarantine plans by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the quarantine plan may be provided in a form and manner and at a time specified by the Minister of Health; and
(b) they must retain the evidence referred to in subparagraph (a)(i) for the 14-day period that begins on the day on which they enter Canada.
(b) The entry requirement for air travellers entering Canada from abroad of providing a negative COVID-19 molecular (PCR) test to the aircraft operator within 72 hours before the aircraft’s initial scheduled departure time for Canada was still in effect on April 5, 2021
[88] This entry requirement for air travellers entering Canada from abroad to provide a “negative COVID-19 molecular (PCR) test within 72 hours before the aircraft’s initial scheduled departure time for Canada” to the aircraft operator before boarding the aircraft was still in effect on April 5, 2021, when the defendant arrived at Toronto Pearson International Airport, by virtue of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-0174, (March 19, 2021) Canada Gazette Part I, Volume 155, Number 14, April 3, 2021) (Quarantine Act).
[89] The entry requirement for air travellers entering Canada from abroad to provide a “negative COVID-19 molecular (PCR) test within 72 hours before the aircraft’s initial scheduled departure time for Canada” to the aircraft operator that was in effect on April 5, 2021, is contained in s. 2.2(1) of Order-In-Council P.C. #2021-0174 [emphasis is mine below]:
Test Requirements
Entering by aircraft — pre-boarding
2.2(1) Subject to subsection (2), every person who enters Canada by aircraft must, before boarding the aircraft for the flight to Canada, provide to the aircraft operator evidence of a COVID-19 molecular test indicating that they received either a negative result for a COVID-19 molecular test that was performed on a specimen collected no more than 72 hours or another period set out under the Aeronautics Act before the aircraft’s initial scheduled departure time, or a positive result for the test that was performed on a specimen collected at least 14 days and no more than 90 days before the aircraft’s initial scheduled departure time.
(5) THE ENTRY REQUIREMENT FOR AIR TRAVELLERS ENTERING CANADA FROM ABOARD OF HAVING TO BOOK A 3-DAY PREPAID STAY AT A GOVERNMENT-APPROVED HOTEL
(a) When was the entry requirement for air travellers entering Canada from abroad of having to book a 3-day prepaid stay at a government-approved hotel first implemented?
[90] The entry requirement for travellers entering Canada by air of “having to book a 3-day prepaid stay at a government approved hotel” and providing proof of that booking by electronic means to the Minister of Health before boarding a flight to Canada was effective and first implemented at 11:59:59 p.m. on February 21, 2021, by virtue of s. 15 of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 7, Order-In-Council P.C. #2021-0075, (February 14, 2021) Canada Gazette Part I, Volume 155, Number 8, February 20, 2021), pursuant to s. 58 of the Quarantine Act.
[91] This requirement for an air traveller to “book a 3-day prepaid stay at a government approved hotel” and to provide proof of that booking by electronic means to the Minister of Health before boarding a flight to Canada is set out in ss. 1.2(1)(a)(ii)(B), 1.2(1)(a)(iii), 1.2(1.1), 1.3(ii)(A), 3(1.01)(a), and 3(1.3) of Order-In-Council P.C. #2021-0075 which provides:
Entering by aircraft — pre-arrival COVID-19 molecular test, suitable quarantine plan and prepaid accommodation
1.2(1) Every person who enters Canada by aircraft must meet the following requirements:
(a) before boarding the aircraft for the flight to Canada, they must
(i) subject to subsection (2), if the person is five years of age or older, provide to the aircraft operator evidence containing the following elements that they received either a negative result for a COVID-19 molecular test that was performed on a specimen collected no more than 72 hours, or not after the end of a period set out under the Aeronautics Act, before the aircraft’s initial scheduled departure time or a positive result for the test that was performed on a specimen collected at least 14 days and no more than 90 days before the aircraft’s initial scheduled departure time:
(A) the person’s name and date of birth,
(B) the name and civic address of the laboratory that administered the test,
(C) the date the specimen was collected and the test method used, and
(D) the test result,
(ii) subject to subsection (3), provide to the Minister of Health, screening officer or quarantine officer
(A) a suitable quarantine plan, and
(B) evidence of prepaid accommodation that enables the person to remain in quarantine at a government-authorized accommodation for a three-day period that begins on the day on which they enter Canada, and
(iii) provide the suitable quarantine plan referred to in clause (ii)(A) and the evidence of prepaid accommodation referred to in clause (ii)(B) by electronic means specified by the Minister of Health, unless they are a member of a class of persons who, as determined by the Minister, are unable to submit their quarantine plan by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the quarantine plan may be provided in the form and manner and at the time specified by the Minister of Health; and
(b) retain the evidence referred to in subparagraph (a)(i) for the 14-day period that begins on the day on which they enter Canada or that begins again under subsection 3(2) or 4(4), if applicable.
Evidence of prepaid accommodation
(1.1) For the purposes of clause (1)(a)(ii)(B), evidence of prepaid accommodation includes evidence that accommodation for that person has been paid for, before or when that person enters Canada,
(a) by that person or by another person on behalf of that person; and
(b) by the Government of Canada or the government of a province.
Suitable quarantine plan
1.3 The suitable quarantine plan referred to in clause 1.2(1)(a)(ii)(A) must
(a) include
(i) in the case of a person entering Canada by land, the civic address of the place where they plan to quarantine themselves during the 14-day period that begins on the day on which they enter Canada,
(ii) in the case of a person entering Canada by aircraft,
(A) the name and address of the government-authorized accommodation where they plan to quarantine themselves during the period that begins on the day on which they enter Canada and remain in quarantine and ends on the day on which they receive the result for the molecular test referred to in subparagraph 1.4(1)(a)(i), and
(B) the civic address of the place where they plan to quarantine themselves during the period that begins on the day on which they receive evidence of a negative result for the molecular test referred to in subparagraph 1.4(1)(a)(i) and remain in quarantine for the remainder of the 14-day period that begins on the day on which they enter Canada, and
(iii) their contact information for the 14-day period that begins on the day on which they enter Canada;
(b) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows them to avoid all contact with other people with whom they did not travel unless they are a minor and a parent or guardian or tutor who is providing care and support to the minor;
(c) indicate that no person will be present at the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, unless that person resides there habitually;
(d) indicate that the person has access to a bedroom at the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, that are separate from the one used by persons who did not travel with them and enter Canada together;
(e) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to access the necessities of life without leaving that place;
(f) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to avoid all contact with vulnerable persons and persons who provide care to those persons, unless the vulnerable person is a consenting adult or is the parent or dependent child in a parent-child relationship; and
(g) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to avoid all contact with a health care provider and the person works or assists in a facility, home or workplace where vulnerable persons are present.
Requirements — entering by aircraft
3(1.01) Any person who enters Canada by aircraft and who does not have signs and symptoms of COVID-19 must
(a) quarantine themselves without delay at a government-authorized accommodation in accordance with the instructions provided by a screening officer or quarantine officer and remain in quarantine until they receive the result for the COVID-19 molecular test referred to in subparagraph 1.4(1)(a)(i);
(b) if the person receives evidence of a negative COVID-19 test result for the test referred to in subparagraph 1.4(1)(a)(i), quarantine themselves without delay in accordance with the instructions provided by a screening officer or quarantine officer and remain in quarantine for the remainder of the 14-day period that begins on the day on which the person enters Canada in a place
(i) that is considered suitable by the Chief Public Health Officer, having regard to the risk to public health posed by COVID-19, the likelihood or degree of exposure of the person to COVID-19 prior to entry into Canada and any other factor that the Chief Public Health Officer considers relevant,
(ii) where they will not be in contact with a vulnerable person, unless the vulnerable person is a consenting adult or is the parent or dependent child in a parent-child relationship, and
(iii) where they will have access to the necessities of life without leaving that place;
(c) if the person does not receive the result for the COVID-19 molecular test referred to in subparagraph 1.4(1)(a)(ii) before the expiry of the 14-day period that begins on the day on which the person enters Canada, remain in quarantine in accordance with the instructions provided by a screening officer or quarantine officer until they receive the test result or for another 14-day period, whichever comes first;
(d) report their arrival at, and the civic address of, the government-authorized accommodation and their place of quarantine within 48 hours after arriving at that accommodation or place, as the case may be, by electronic means specified by the Minister of Health or by telephone using a number specified by the Minister of Health; and
(e) subject to subsection (2), while they remain in quarantine in accordance with paragraphs (a) and (b)
(i) monitor for signs and symptoms of COVID-19,
(ii) report daily on their health status relating to signs and symptoms of COVID-19 by electronic means specified by the Minister of Health or by telephone using a number specified by the Minister of Health, and
(iii) in the event that they develop signs and symptoms of COVID-19 or receive evidence of a positive result under any type of COVID-19 test, follow the instructions provided by the public health authority specified by a screening officer or quarantine officer.
Accommodation — expense
(1.3) For greater certainty, a person referred to in paragraph (1.01)(a) must comply with the conditions established under that paragraph at their own expense unless the government-authorized accommodation is provided or paid for by Her Majesty in right of Canada or an agent of Her Majesty.
Period begins again
(2) The 14-day period of quarantine begins again and the associated requirements continue to apply if, during the 14-day period, the person develops signs and symptoms of COVID-19, receives evidence of a positive result under any type of COVID-19 test or is exposed to another person who exhibits signs and symptoms of COVID-19.
Cessation — daily reporting
(3) The reporting requirements set out in subparagraphs (1)(c)(ii) and (1.01)(e)(ii) end if the person reports that they have developed signs and symptoms of COVID-19 or tested positive for COVID-19 under any type of COVID-19 test.
19(1) Subsections 3(1) and (1.01) of this Order are replaced by the following:
(3) Subsection 3(1.3) of this Order is replaced by the following:
Accommodation — expense
(1.3) For greater certainty, a person referred to in paragraph (1)(a) must comply with the conditions established under that paragraph at their own expense unless the government-authorized accommodation is provided or paid for by Her Majesty in right of Canada or an agent of Her Majesty.
February 21, 2021
(2) Subparagraph 1.3(a)(i) and sections 15 to 30 come into force at 11:59:59 p.m. Eastern Standard Time on February 21, 2021.
(b) the entry requirement for air travellers entering Canada from abroad of having to book a 3-day prepaid stay at a government-approved hotel was still in effect on April 5, 2021
[92] The entry requirement of having to book a 3-day prepaid stay at a government-approved hotel was still in effect on April 5, 2021, when the defendant entered Canada by air from being abroad in Mexico and Columbia. Air travellers from outside Canada arriving at Toronto Pearson International Airport on April 5, 2021, were required under s. 3.4 of Order-In-Council PC #2021-0174 (March 19, 2021) to have booked a 3-day prepaid stay at a government-approved hotel. The purpose of this measure was to prevent an air traveller, even one who was asymptomatic, from being in the community until their Day 1 molecular (PCR) test came back negative. And, because molecular (PCR) tests require a laboratory to process this type of test it may take up to 3 days to process, then the air traveller, even one who was asymptomatic, would have to isolate at the government-approved hotel for up to 3 days until the test came back negative. More importantly, under ss. 3.1(a)(ii)(A), 3.2(2)(b), and 3.2(3) the air traveller entering Canada from abroad must also include in their 14-day quarantine plan, which they have to provide to the Minister of Health by electronic means before they board their flight to Canada, the name and civic address of the “government-authorized accommodation” where they plan to quarantine themselves during the period that begins on the day on which they enter Canada and to remain in quarantine until the day on which they receive the result for the COVID-19 molecular test (the 3-day stay). And, under ss. 3.4(a) and 3.4(b), every person who enters Canada by aircraft must before boarding the aircraft for the flight to Canada provide to the Minister of Health, screening officer or quarantine officer by electronic means specified by the Minister of Health, evidence of prepaid accommodation that enables the person to remain in quarantine at a government-authorized accommodation for a period of three days from the day on which they enter Canada. In addition, under s. 4.1(a) every person who enters Canada by aircraft and who does not have signs and symptoms of COVID-19 must quarantine themselves without delay at a government-authorized accommodation in accordance with the instructions provided by a screening officer or quarantine officer and remain in quarantine until they receive the result for the COVID-19 molecular test [emphasis is mine below]:
Suitable quarantine plan
3.1 A suitable quarantine plan must
(a) include
(i) in the case of a person entering Canada by a mode of transport other than aircraft, the civic address of the place where they plan to quarantine themselves during the 14-day period that begins on the day on which they enter Canada,
(ii) in the case of a person entering Canada by aircraft,
(A) the name and civic address of the government-authorized accommodation where they plan to quarantine themselves during the period that begins on the day on which they enter Canada and to remain in quarantine until the day on which they receive the result for the COVID-19 molecular test referred to in paragraph 2.3(1)(a), and
(B) the civic address of the place where they plan to quarantine themselves during the period that begins on the day on which they receive evidence of a negative result for the COVID-19 molecular test referred to in paragraph 2.3(1)(a) and remain in quarantine for the remainder of the 14-day period that begins on the day on which they enter Canada, and
(iii) their contact information for the 14-day period that begins on the day on which they enter Canada;
(b) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows them to avoid all contact with other people with whom they did not travel unless they are a minor, in which case the minor can have contact with other people who are providing care and support to the minor and who reside with the minor during the 14-day period that begins on the day on which they enter Canada or that begins again under subsection 4.9(1);
(c) indicate that no person will be present at the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, unless that person resides there habitually;
(d) indicate that the person has access to a bedroom at the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, that is separate from the one used by persons who did not travel with and enter Canada with that person;
(e) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to access the necessities of life without leaving that place;
(f) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to avoid all contact with vulnerable persons and persons who provide care to those persons, unless the vulnerable person is a consenting adult or the parent or dependent child in a parent-child relationship; and
(g) indicate that the place referred to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, allows the person to avoid all contact with health care providers and persons who work or assist in a facility, home or workplace where vulnerable persons are present.
Quarantine plan — requirements
3.2(1) Subject to subsection 3.3(1), every person who enters Canada must provide to the Minister of Health, screening officer or quarantine officer a quarantine plan that meets the requirements set out in section 3.1.
Quarantine plan — mode of transport
(2) For the purposes of subsection (1), the person must provide their quarantine plan
a) before entering Canada, if the person enters Canada by land;
b) before boarding the aircraft for the flight to Canada, if the person enters Canada by aircraft; or
c) before or when entering Canada, if the person enters Canada by water.
Electronic means — land and aircraft
(3) A person referred to in paragraphs (2)(a) and (b) must provide the quarantine plan referred to in subsection (1) by electronic means specified by the Minister of Health, unless they are a member of a class of persons who, as determined by the Minister, are unable to submit their quarantine plan by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the quarantine plan may be provided in the form and manner and at the time specified by the Minister of Health.
Prepaid accommodation — requirements
3.4 Subject to section 3.5, every person who enters Canada by aircraft must meet the following requirements before boarding the aircraft for the flight to Canada:
(a) provide to the Minister of Health, screening officer or quarantine officer evidence of prepaid accommodation that enables the person to remain in quarantine at a government-authorized accommodation for a period of three days from the day on which they enter Canada; and
(b) provide the evidence of prepaid accommodation referred to in paragraph (a) by electronic means specified by the Minister of Health, unless they are a member of a class of persons who, as determined by the Minister, are unable to submit the evidence by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the evidence may be provided in the form and manner and at the time specified by the Minister of Health.
Quarantine of Asymptomatic Persons
Requirements
4.1 Every person who enters Canada and who does not have signs and symptoms of COVID-19 must
(a) in the case of a person entering Canada by aircraft, quarantine themselves without delay at a government-authorized accommodation in accordance with the instructions provided by a screening officer or quarantine officer and remain in quarantine until they receive the result for the COVID-19 molecular test referred to in paragraph 2.3(1)(a);
(a.1) in the case of a person entering Canada by a mode of transport other than aircraft, quarantine themselves without delay in accordance with the instructions provided by a screening officer or quarantine officer and remain in quarantine until the expiry of the 14-day period that begins on the day on which the person enters Canada in a place
(i) that is considered suitable by the Chief Public Health Officer, having regard to the risk to public health posed by COVID-19, the likelihood or degree of exposure of the person to COVID-19 prior to entry into Canada and any other factor that the Chief Public Health Officer considers relevant,
(ii) where they will not be in contact with a vulnerable person, unless the vulnerable person is a consenting adult or the parent or dependent child in a parent-child relationship, and
(iii) where they will have access to the necessities of life without leaving that place;
(b) if the person receives evidence of a negative result for the COVID-19 molecular test referred to in paragraph 2.3(1)(a), quarantine themselves without delay in accordance with the instructions provided by a screening officer or quarantine officer and remain in quarantine for the remainder of the 14-day period that begins on the day on which the person enters Canada in a place
(i) that is considered suitable by the Chief Public Health Officer, having regard to the risk to public health posed by COVID-19, the likelihood or degree of exposure of the person to COVID-19 prior to entry into Canada and any other factor that the Chief Public Health Officer considers relevant,
(ii) where they will not be in contact with a vulnerable person, unless the vulnerable person is a consenting adult or the parent or dependent child in a parent-child relationship, and
(iii) where they will have access to the necessities of life without leaving that place;
(c) if the person does not receive the result for the COVID-19 molecular test referred to in paragraph 2.3(1)(b) before the expiry of the 14-day period that begins on the day on which the person enters Canada, remain in quarantine in accordance with the instructions provided by a screening officer or quarantine officer until they receive the test result or for another 14-day period, whichever comes first;
(d) report their arrival at, and the civic address of, the government-authorized accommodation or their place of quarantine within 48 hours after arriving at that accommodation or place, as the case may be, by electronic means specified by the Minister of Health or by telephone using a number specified by the Minister of Health, unless they are a member of a class of persons who, as determined by the Minister, are unable to report that information by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the reporting may be done in the form and manner and at the time specified by the Minister of Health; and
(e) subject to section 4.9, while they remain in quarantine in accordance with paragraphs (a) to (c),
(i) monitor for signs and symptoms of COVID-19,
(ii) report daily on their health status relating to signs and symptoms of COVID-19 by electronic means specified by the Minister of Health or by telephone using a number specified by the Minister of Health, unless they are a member of a class of persons who, as determined by the Minister, are unable to report that information by electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the reporting may be done in the form and manner and at the time specified by the Minister of Health, and
(iii) in the event that they develop signs and symptoms of COVID-19 or receive evidence of a positive result under any type of COVID-19 test, follow the instructions provided by the public health authority specified by a screening officer or quarantine officer.
Unable to quarantine
4.2(1) A person referred to in section 4.1 is considered unable to quarantine themselves if
(a) the person has not provided the evidence referred to in subsection 2.1(1) or 2.2(1), unless the person is exempted from that requirement under subsection 2.1(2) or 2.2(2);
(b) the person refuses to undergo a COVID-19 molecular test in accordance with paragraph 2.3(1)(a);
(c) the person has not provided a quarantine plan in accordance with this Order;
(d) the person cannot quarantine themselves in accordance with paragraphs 4.1(a) to (b); or
(e) while they remain in quarantine at the government-authorized accommodation referred to in paragraph 4.1(a), the person develops signs and symptoms of COVID-19, receives evidence of a positive result under any type of COVID-19 test or is exposed to another person who exhibits signs and symptoms of COVID-19.
Transportation to a government-authorized accommodation
(2) A person referred to in paragraph 4.1(a) must not use a public means of transportation, including an aircraft, bus, train, subway, taxi or ride-sharing service, to travel from the place where they enter Canada to the government-authorized accommodation, unless the person is authorized to use a public means of transportation by a screening officer or quarantine officer.
Expense
(4) For greater certainty, a person referred to in paragraph 4.1(a) must comply with the conditions established under that paragraph at their own expense or at the expense of another person on behalf of that person unless the government-authorized accommodation is provided or paid for by Her Majesty in right of Canada or an agent of Her Majesty in right of Canada or Her Majesty in right of a province.
Period begins again
4.9(1) The 14-day period of quarantine begins again and the associated requirements continue to apply if, during that 14-day period, the person develops signs and symptoms of COVID-19, receives evidence of a positive result under any type of COVID-19 test or is exposed to another person who exhibits signs and symptoms of COVID-19.
Day of test
(2) In the case of a person referred to in subsection (1) who receives evidence of a positive result under any type of COVID-19 test, the 14-day period begins again on the day that the test was performed.
Cessation — daily reporting
(3) The requirements set out in subparagraphs 4.1(e)(ii) and 4.2(2)(d)(ii) end if the person reports that they have developed signs and symptoms of COVID-19 or tested positive for COVID-19 under any type of COVID-19 test.
Cessation of Effect, Repeal and Coming into Force
Cessation of Effect
April 21, 2021
7.1 This Order ceases to have effect at 11:59:59 p.m. Eastern Daylight Time on April 21, 2021.
Coming into Force
March 21, 2021
7.3 This Order comes into force at 11:59:59 p.m. Eastern Daylight Time on March 21, 2021.
[93] The mandatory requirement for air travellers entering Canada from abroad to book a 3-day prepaid stay at a government-approved hotel was finally ended by the Federal Government on July 5, 2021, for fully vaccinated travellers who met all other entry requirements, and August 9, 2021, for all other travellers[12].
(6) THE ENTRY REQUIREMENT FOR AIR TRAVELLERS ENTERING CANADA FROM ABOARD OF HAVING TO UNDERGO A DAY 1 COVID-19 MOLECULAR (PCR) TEST UPON ARRIVAL AT A CANADIAN AIRPORT
(a) When was the entry requirement for air travellers entering Canada from aboard of having to undergo a Day 1 COVID-19 molecular (PCR) test upon arrival at the airport first implemented?
[94] The entry requirement for travellers entering Canada by air from abroad of undergoing a Day 1 COVID-19 molecular (PCR) test upon arrival at a Canadian airport was effective and first implemented at 11:59:59 p.m. on January 20, 2021, by virtue of the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-011, (January 20, 2021) Canada Gazette Part I, Volume 155, Number 5, January 30, 2021 (Quarantine Act), pursuant to s. 58 of the Quarantine Act. This requirement for an air traveller to “undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival from abroad” is set out in s. 1.2(4)(a) of Order-In-Council P.C. #2021-0011 which provides [emphasis is mine below]:
Test in Canada – persons subject to the Aeronautics
Act
1.2(4) Every person referred to in paragraph (2)(i), unless they are also referred to in one of paragraphs (2)(a) to (h) or they provide evidence of a positive COVID-19 molecular test result that was performed on a specimen that was collected at least 14 days and no more than 90 days before the aircraft’s initial scheduled departure time, must meet the following requirements:
(a) in accordance with the instructions of the quarantine officer, they must undergo a COVID-19 molecular test in Canada unless, in exigent circumstances, the quarantine officer releases the person from that requirement, in which case the person must follow instructions specified by the quarantine officer; and
(b) they must retain the evidence of the COVID-19 molecular test result for the 14-day period that begins on the day on which they receive the evidence of that result or that begins again if, during the 14-day period, the person develops signs and symptoms of COVID-19, is exposed to another person who exhibits signs and symptoms of COVID-19 or tests positive for COVID-19 under any type of COVID-19 test.
(b) The entry requirement for air travellers entering Canada from aboard of having to undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival was still in effect on April 5, 2021
[95] In addition, air travellers arriving from outside of Canada at Toronto Pearson International Airport on April 5, 2021, were also required under s. 2.3(1)(a) of Order-In-Council PC #2021-0174 to undergo a COVID-19 molecular (PCR) test when entering Canada or after entering Canada. This is referred to as the Day 1 COVID-19 molecular (PCR) test [emphasis is mine below]:
Tests in Canada
2.3(1) Every person who enters Canada by land or aircraft must, in accordance with the instructions of a quarantine officer or the Minister of Health, undergo a COVID-19 molecular test
(a) when entering Canada; and
(b) after entering Canada.
Non-application
(2) Subsection (1) does not apply to a person referred to in Table 2 of Schedule 2.
Exigent circumstances
(3) Paragraph (1)(a) or (b) does not apply to a person who, in exigent circumstances, is released by a quarantine officer from the requirement to undergo the COVID-19 molecular test referred to in paragraph (1)(a) or (b), as the case may be, in which case the person must follow the instructions of the quarantine officer.
Expense
(4) For greater certainty, a person referred to in subsection (1) must comply with the conditions established under that paragraph at their own expense or at the expense of another person on behalf of that person unless the COVID-19 molecular tests are provided or paid for by Her Majesty in right of Canada or an agent of Her Majesty in right of Canada or Her Majesty in right of a province.
Alternative testing protocol
2.4(1) The persons referred to in subsection (2) who enter Canada by land or aircraft must, in accordance with the instructions of a quarantine officer, undergo an alternative testing protocol to screen or diagnose COVID-19 for the purpose of minimizing the risk of introduction or spread of COVID-19, having regard to the following factors:
(a) the number of tests;
(b) the test method of each test;
(c) the location where each test is administered;
(d) the frequency of the tests;
(e) the timing of the tests; and
(f) any exigent circumstances.
Persons subject to subsection (1)
(2) The persons subject to subsection (1) are
(a) a person or any member of a class of persons designated by the Chief Public Health Officer;
(b) a person who is less than 18 years of age and is not accompanied by a person who is 18 years of age or older; and
(c) a person referred to in subsection 4.5(1).
Exigent circumstances
(3) Subsection (1) does not apply to a person who, in exigent circumstances, is released by a quarantine officer from the requirement to undergo the alternative testing protocol, in which case the person must follow the instructions of the quarantine officer.
Non-application — positive result
(4) This section does not apply to a person who receives evidence of a positive result under any type of COVID-19 test.
Evidence of COVID-19 molecular test — retention period
2.5(1) Every person who enters Canada must
(a) during the 14-day period that begins on the day on which they enter Canada or that begins again under subsection 4.9(1), retain the evidence referred to in subsections 2.1(1) or 2.2(1) and the evidence of the COVID-19 molecular test result for the tests referred to in paragraph 2.3(1)(a);
(b) retain the evidence of the COVID-19 molecular test result for the test referred to in paragraph 2.3(1)(b) or the result of the alternative testing protocol referred to in subsection 2.4(1) during the 14-day period that begins on the day on which the person receives the evidence of the test result; and
(c) provide, on request, the evidence referred to in subsection 2.1(1) or 2.2(1) and the evidence of the COVID-19 molecular test result for the tests referred to in paragraph 2.3(1)(a) and (b) to any official of the Government of Canada or of the government of a province or to the local public health authority of the place where the person is located.
Designation
(2) The Chief Public Health Officer may designate any person as a public health official for the purposes of paragraph (1)(c).
(i) the COVID-19 molecular (PCR) test
[96] The COVID-19 molecular test (PCR test) is defined in s. 1.1 of O.I.C. #2021-0174 (Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), as a COVID-19 screening or diagnostic test carried out by an accredited laboratory, including a test performed using the method of polymerase chain reaction (PCR) or reverse transcription loop-mediated isothermal amplification (RT-LAMP):
Definitions
1.1 The following definitions apply in this Order.
COVID-19 molecular test means a COVID-19 screening or diagnostic test carried out by an accredited laboratory, including a test performed using the method of polymerase chain reaction (PCR) or reverse transcription loop-mediated isothermal amplification (RT-LAMP).
[97] In addition, in respect to the entry requirement of air travellers entering Canada from outside Canada having to do a Day 1 COVID-19 (PCR) test at the airport, Pentney J. in Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.), at paras. 12 to 14, had reviewed the different types of COVID-19 tests and accuracy and reliability of such tests. Pentney J. noted that there are primarily two types of tests for COVID-19: (i) molecular tests; and (ii) antigen tests. Pentney J. said that the majority of molecular tests use the Polymerase Chain Reaction (PCR) method and that the evidence indicates that PCR testing is more accurate and can identify the presence of genetic material before a person exhibits symptoms or when a person is asymptomatic, while antigen tests often do not require a laboratory, and a result can be determined in under 30 minutes. Pentney J. also said that Antigen tests are useful to detect infected people with a high viral load, which is at the peak or near-peak of their infection, but that Antigen tests are less reliable in identifying people who are newly infected when they can still pass on the virus to other people. Furthermore, Pentney J. noted that the evidence suggests that Antigen tests are far more prone to false-negative results if a person has low amounts of the virus in their body. In addition, Pentney J. indicated that molecular tests (PCR) are superior throughout the detection period, since they can amplify small amounts of viral genomic material as compared to the Antigen tests, which do not have a similar amplification mechanism, and therefore depend on a higher starting viral load, and that is the reason that the public health measures adopted rely on molecular testing [emphasis is mine below]:
There are primarily two types of tests for COVID-19: (i) molecular tests; and (ii) antigen tests. The majority of molecular tests use the Polymerase Chain Reaction (PCR) method. The evidence indicates that PCR testing is more accurate and can the identify presence of genetic material before a person exhibits symptoms or when a person is asymptomatic. PCR tests allow for screening of the same sample for genetic markers to detect the presence of variants of concern, which will be discussed in further detail below. Other molecular testing technology exists and includes Reverse Transcription Loop-mediate isothermal AMPlification, which functions in a manner similar to PCR, but has slightly lower sensitivity and specificity.
Antigen tests often do not require a laboratory, and a result can be determined in under 30 minutes. Antigen tests are useful to detect infected people with a high viral load, which is at the peak or near-peak of their infection. However, antigen tests are less reliable in identifying people who are newly infected when they can still pass on the virus to other people. Further, the evidence suggests that Antigen tests are far more prone to false-negative results if a person has low amounts of the virus in their body.
Molecular tests, PCR in particular, are superior throughout the detection period since they can amplify small amounts of viral genomic material, as compared to the antigen tests, which do not have a similar amplification mechanism and therefore depend on a higher starting viral load. For this reason, the public health measures adopted rely on molecular testing.
(ii) the ArriveCAN App
[98] The ArriveCAN app was chosen by the Minister of Health to be the electronic means for air travellers flying to Canada to provide to the Minister of Health the required pre-boarding information, such as the negative result from a COVID-19 molecular (PCR) test taken within 72 hours of departing for Canada and the details of the 3-day prepaid stay at a government-approved hotel that had been booked by the air traveller. The ArriveCAN app was in effect for air travellers starting on November 21, 2020, and had been still in effect up to April 5, 2021, when the defendant entered Canada from being abroad[13].
(j) ENFORCEMENT OF THE ENTRY REQUIREMENTS BY CERTIFICATES OF OFFENCE ISSUED UNDER THE QUARANTINE ACT WERE AUTHORIZED UNDER THE CONTRAVENTIONS ACT, S.C. 1992, C. 47
[99] The Quarantine Act, S.C. 2005, c. 20, authorizes the Governor-in-Council to make emergency orders prohibiting any class of persons who have been in a foreign country from entering Canada or subjecting their entry into Canada to any conditions. In response to COVID-19, the Government of Canada issued numerous emergency orders commencing in February of 2020. As an additional measure, a ticketing scheme for people contravening the Quarantine Act was put in place in April of 2020 under the Contraventions Act, S.C. 1992, c. 47.
(1) Set Fines For Contraventions Of The Entry Requirements Issued By Emergency Orders Under The Quarantine Act That Were In Effect On April 11, 2020
[100] Ten contraventions under the Quarantine Act were registered on April 11, 2020, by SOR/2020-86 (Regulations Amending the Contraventions Regulations (Quarantine Act)). The set fines for these 10 federal contraventions are set out in Schedule XVI of SOR/2020-86. The set fine for contravening s. 15(3) for “failure to comply with a reasonable measure ordered by a screening officer or quarantine officer” had been initially set at $500 on April 11, 2020, while the set fine for contravening s. 58 for “failure to comply with an order prohibiting or subjecting to any condition the entry into Canada” had been initially set at $1000 on April 11, 2020. The amendments under SOR/2020-86 had designated ten offences under the Quarantine Act as contraventions. This had allowed enforcement officers to issue contraventions tickets to those found in violation of certain provisions of the Quarantine Act and emergency orders made under section 58 of that Act. The fine amounts for these 10 new contraventions had ranged between $275 and $1,000. The fine amount for contraventions committed by young persons had been set at $100. In order to set distinct fine amounts for young persons, a provision was added to the Contraventions Regulations establishing the fine amount for young persons in respect of any contravention to be the lesser of $100 or the fine set out in Column III of the schedules for a particular contravention. In order to designate these offences as contraventions, a new schedule was added to the Contraventions Regulations entitled, “Schedule XVI.” The offences designated as contraventions had pertained to obligations imposed on travellers and other persons to prevent the introduction and spread of communicable diseases, including the obligation on a traveller:
(1) to present oneself to a screening officer at the nearest entry point (section 12);
(2) to answer relevant questions asked by a screening officer or quarantine officer or to provide any required information or record (subsection 15(1));
(3) to disclose to a screening officer or quarantine officer that they may have a communicable disease or have recently been in close proximity to a person that has a communicable disease (subsection 15(2));
(4) to comply with reasonable measures ordered by a screening officer or quarantine officer (subsection 15(3));
(5) to comply with an order from a quarantine officer to report to a public health authority (subsection 25(1));
(6) to comply with an order regarding a treatment or a measure for preventing the introduction and spread of a communicable disease (section 26);
(7) to comply with an order prohibiting or subjecting to any condition the entry into Canada (section 58);
(8) not to enter a quarantine facility without authorization (subsection 65(1));
(9) not to leave a quarantine facility without authorization (subsection 65(2));
(10) (a) not to hinder or wilfully obstruct a quarantine officer, screening officer or environmental health officer or (b) not to make a false or misleading statement to a quarantine officer, screening officer or environmental health officer (section 66) [emphasis is mine below]:
Amendments
1 The Contraventions Regulations are amended by adding the following after section 3:
Young Persons
4 In the case of a contravention committed by a young person, the amount of a fine established in column III of an item to the Schedules is deemed to be the lesser of $100 and the amount set out in column III of that item.
2 The Regulations are amended by adding after Schedule XV the Schedule XVI set out in the schedule to these Regulations.
3 The Regulations are amended by replacing the references after the schedule heading in Schedules I to XV with “(Sections 1 to 4)”.
Coming into Force
4 These Regulations come into force on the day on which they are registered.
SCHEDULE
(Section 2)
SCHEDULE XVI
(Sections 1 to 4)
Quarantine Act
Item
Column I Provision of Quarantine Act
Column II Short-Form Description
Column III Fine ($)
1
12
Failure to present oneself to a screening officer at the nearest entry point
275
2
15(1)
Failure to answer a relevant question asked by a screening officer or quarantine officer or to provide the officer with any required information or record
275
3
15(2)
Failure to disclose specified information concerning a listed communicable disease or vectors
275
4
15(3)
Failure to comply with a reasonable measure ordered by a screening officer or quarantine officer
500
5
25(1)
Failure to comply with an order to report to a public health authority
275
6
26
Failure to comply with an order regarding a treatment or a measure for preventing the introduction and spread of a communicable disease
750
7
58
Failure to comply with an order prohibiting or subjecting to any condition the entry into Canada
1000
8
65(1)
Enter a quarantine facility without authorization
275
9
65(2)
Leave a quarantine facility without authorization
750
10
66
(a) Hinder or wilfully obstruct a quarantine officer, screening officer or environmental health officer
500
(b) Make a false or misleading statement to a quarantine officer, screening officer or environmental health officer
275
(2) Fines were increased by three-fold on February 15, 2021, because residents of Canada were continuing to engage in non-essential travel outside of Canada and were not complying with the measures implemented to stop the spread of COVID-19 upon their return to Canada
[101] On February 15, 2021, the fines for contravening provisions of the Quarantine Act, S.C. 2005, c. 20, were increased three-fold by SOR/2021-13 (Regulations Amending the Contraventions Regulations (Schedule XVI)), Canada Gazette, Part II, Volume 155, Extra Number 3, as the Public Health Agency of Canada had observed that residents of Canada were continuing to engage in non-essential travel outside of Canada and were not complying with the measures to stop the spread of COVID-19 upon their return to Canada. The fine for contravening s. 15(3) for “failure to comply with a reasonable measure ordered by a screening officer or quarantine officer” (item #4 of Schedule XVI) had been increased to $1500 on February 15, 2021, while the fine for contravening s. 58 for “failure to comply with an order prohibiting or subjecting to any condition the entry into Canada” (Item #7 of Schedule XVI) had been increased to $3000 on February 15, 2021 [emphasis is mine below]:
Regulations Amending the Contraventions Regulations (Schedule XVI)
Amendments
1 The portion of items 1 to 6 of Schedule XVI to the Contraventions Regulations in column III is replaced by the following:
Item
Column III
Fine ($)
1
825
2
825
3
825
4
1500
5
825
6
3000
2 Schedule XVI to the Regulations is amended by adding the following after item 6:
Item
Column I
Provision of Quarantine Act
Column II
Short-Form Description
Column III
Fine ($)
6.1
34(2)
(a) Failure to inform a quarantine officer before arrival that any person, cargo or thing on board a conveyance could cause the spreading of a communicable disease
5000
(b) Failure to inform a quarantine officer before arrival that a person on board a conveyance has died
5000
(c) Failure to inform a quarantine officer before arrival that any prescribed circumstances exist
5000
3 The portion of items 7 to 10 of Schedule XVI to the Regulations in column III is replaced by the following:
Item
Column III
Fine ($)
7
3000
8
825
9
3000
10 (a)
1500
10 (b)
825
Coming into Force
4 These Regulations come into force on the day on which they are registered.
[102] The reason for increasing the fines 3-fold for contraventions of the Quarantine Act were explained in the accompanying commentary in SOR/2021-13. The commentary had indicated that there had been growing concern by the Federal Government of emerging new and more contagious variants of COVID-19 and that Canadians were continuing to engage in non-essential travel, and because of travellers who were contravening the Quarantine Act upon their return to Canada would pose a serious and heightened threat to public health. In addition, the Public Health Agency of Canada had determined that the fine amounts set in April of 2020 were not being perceived by Canadians as being sufficiently high to deter them from engaging in non-essential travel or to urge them to comply with the obligations under the Quarantine Act. Accordingly, it was indicated that the objective or purpose of the amendments to the Contraventions Regulations involving the fine amounts for the Quarantine Act offences had been to pursue additional efforts to prevent the spread of COVID-19 among Canadians by including meaningful and more persuasive fines in order to obtain a higher level of compliance with the Quarantine Act and the emergency orders made under that Act, and to ensure better deterrence of non-compliance, and to send a clearer and stronger message on the severity associated to non-compliance, as the government had been coping with a persistent and challenging second wave of COVID-19 [emphasis is mine below]:
In response to the COVID-19 coronavirus pandemic, the Government of Canada has made numerous emergency orders under the Quarantine Act designed to slow and prevent the spread of COVID-19, by restricting entry into Canada or subjecting persons entering Canada to certain conditions, notably requiring any person returning from travelling abroad to self-isolate for 14 days. It is vitally important that those measures be strictly followed. In April 2020, certain Quarantine Act offences were designated as contraventions in order to provide enforcement authorities with an additional enforcement tool to improve compliance with the Quarantine Act and the emergency orders made under that Act. The offences designated as contraventions pertain to obligations imposed on individual travellers with respect to international travel requirements and mandatory isolation upon arriving in Canada. The ticketing scheme established by the Contraventions Act, known as the Contraventions Regime, provides another option for enforcing certain federal offences of a regulatory nature as the offender can choose to plead guilty and pay a fine without having to appear in court.
The April 2020 amendments to the Contraventions Regulations were among the very first governmental efforts to prevent risks to the health of Canadians in the context of the first months of the COVID-19 pandemic. The fine amounts for these contraventions, ranging between $275 and $1,000, had been cautiously determined in light of existing contraventions fine amounts, and were perceived by the Public Health Agency of Canada (PHAC) at the time as sufficiently high to impact the behaviour of Canadians who were going to travel. It was also anticipated that the fine levels set for Quarantine Act contraventions could, to some extent, influence the provincial, territorial (P/T), and municipal fines that were going to be subsequently put in place.
However, there is growing concern that Canadians continue to engage in non-essential travel. In the context of emerging new and more contagious variants of COVID-19, travellers who contravene the Quarantine Act upon return to Canada pose a serious and heightened threat to public health. Having observed the situation, PHAC has determined that the fine amounts set in April 2020 are not perceived by Canadians as being sufficiently high to deter them from engaging in non-essential travel and to urge them to comply with Quarantine Act's obligations. In addition, PHAC has observed the existence of higher fine amounts in provinces for contravening public health orders under provincial public health legislation. Thus, as cases continue to rise, a number of provinces have increased their maximum fine amounts from those originally set earlier in the pandemic.
Increased fine amounts are required for existing contraventions listed under Schedule XVI to the Contraventions Regulations in order to re-emphasize to Canadians the seriousness and severity of contravening these offences while striking an appropriate deterrence approach. The increased fine amounts also enable PHAC to reinforce its leadership role, in the context of an unprecedented pandemic which continues to persist, to reiterate the importance of the measures in place, the need being pressing to set a firmer tone and to send a concise, unequivocal and stronger message to Canadians.
Enacted in 1992, the Contraventions Act provides a procedure for the prosecution of federal regulatory offences designated as contraventions. This procedure reflects the distinction between criminal offences and regulatory offences and offers an alternative to the summary conviction procedure set out in the Criminal Code. It allows enforcement authorities to commence the prosecution of a contravention by means of a ticket with the option of voluntary payment of the prescribed fine, therefore avoiding the longer and more costly procedure set out in the Criminal Code. This spares the offender from the legal ramifications of a Criminal Code conviction while ensuring that court and criminal justice resources can be focussed on the prosecution of more serious offences. This ticketing procedure is a more reasonable and effective approach for minor offences, and provides for fines that are more proportionate to the seriousness of these offences.
Made under section 8 of the Contraventions Act, the Contraventions Regulations identify the federal offences designated as contraventions, provide the short-form description of these offences and prescribe the amount of the fine for each of these contraventions. The Contraventions Regime provides another option for enforcing certain federal offences of a regulatory nature as the offender can choose to plead guilty and pay a fine without having to appear in court. Making use of this regime saves valuable time for the courts and for the enforcement agency, which can be dedicated to the prosecution of the most serious instances of these offences.
In April 2020, 10 offences of the Quarantine Act were designated as contraventions under Schedule XVI to the Contraventions Regulations with associated fine amounts. These fine amounts have revealed to be insufficiently high to impact the behaviour of Canadians when they engage in non-essential travel. …
These amendments to the Contraventions Regulations directly support the Government of Canada's response to COVID-19 and are therefore made on an expedited basis to support continued efforts to prevent or reduce risks to the health of Canadians.
Objective
The objective of these amendments is to pursue additional efforts to prevent the spread of COVID-19 among Canadians by including meaningful and more persuasive fines in order to improve compliance with the Quarantine Act and the emergency orders made under that Act. The purpose is to ensure better deterrence of non-compliance and to send a clearer and stronger message on the severity associated to non-compliance.
The amendments increase the fine amounts to three times the previous amount, with the exception of the fine amounts for section 26 and subsection 65(2) which are set at $3,000, for the contraventions already listed under Schedule XVI to the Contraventions Regulations pertaining to obligations imposed on travellers and other persons to prevent the introduction and spread of communicable disease, including
the obligation of a traveller to present oneself to a screening officer at the nearest entry point (section 12): $825;
to answer relevant questions asked by a screening officer or quarantine officer or to provide any required information or record (subsection 15(1)): $825;
to disclose to a screening officer or quarantine officer that they may have a communicable disease or have recently been in close proximity to a person that has a communicable disease (subsection 15(2)): $825;
to comply with reasonable measures ordered by a screening officer or quarantine officer (subsection 15(3)): $1,500;
to comply with an order from a quarantine officer to report to a public health authority (subsection 25(1)): $825;
to comply with an order regarding a treatment or any other measure for preventing the spread of the communicable disease (section 26): $3,000; and
to comply with an emergency order prohibiting or subjecting to any condition the entry of the traveller into Canada (section 58): $3,000.
The increase of existing contraventions fine amounts and the designation of an additional offence as a contravention provide enforcement officers with additional enforcement tools to better enforce the provisions of the Quarantine Act. In fact, previous fine amounts for the existing contraventions had not impacted significantly the behaviours of travellers, and enforcement officers attempting to enforce subsection 34(2) of the Quarantine Act were only able to issue a warning or proceed under the Criminal Code procedure. The Contraventions Regime allows enforcement officers to use a more graduated approach to enforcement that reflects the severity of each infraction.
Increasing existing contraventions fine amounts enables PHAC to send a clear message about the severity of non-compliance which undermines governmental efforts to prevent and ultimately eradicate the spread of COVID-19. More importantly, from a benefits and costs perspective, new fine amounts contribute to efforts to avoid overwhelming governmental quarantine facilities, front-line hospitals and long-term care homes. …
The amendments to the Contraventions Regulations involving the fine amounts for the Quarantine Act offences and the addition of the designation of subsection 34(2) are meant to ensure a higher level of compliance as the government is coping with a persistent and challenging second wave of COVID-19.
With respect to the increase of fine amounts, PHAC not only relied on current fine levels of similar provincial public health orders, but has also determined these fine amounts based on the range permitted by the Contraventions Regime where the maximum fine amount that can be contemplated for a contravention is $5,000 (corresponding to the maximum fine under the Criminal Code's summary conviction procedure).
The amendments increasing the existing fine amounts, which are solely meant to be imposed on individuals, namely travellers, are all set at three times the previous amount, with the exception of the fine amounts for section 26 and subsection 65(2), which are set at $3,000, corresponding to four times the previous amount. The new fine amounts were determined in light of the reassessment performed by PHAC of each offence's degree of seriousness. Both section 26 (failure to comply with an order regarding a treatment or a measure) and subsection 65(2) [leave a quarantine facility without authorization] were identified to be more serious and therefore higher fine amounts were merited.
(K) RELEVANT CASELAW IN RESPECT TO THE ENTRY REQUIREMENTS AND MEASURES THAT WERE ISSUED UNDER EMERGENCY ORDER PC #2021-0174 AND EARLIER EMERGENCY ORDERS
[103] Two important judicial decisions that had been decided by the Federal Court in 2021 are relevant to this proceeding and to the Emergency Order entitled as Order-In-Council PC #2021-0174, which had been applicable to the defendant on April 5, 2021, when the defendant had entered Canada by air from being abroad. They are Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.) and Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622 (F.C.). The first case decided on April 23, 2021, was in regard to an application that sought an injunction against the Federal Government from continuing to utilize the entry requirements and measures under Order-In-Council PC #2021-0174 and earlier Emergency Orders, while the second case decided on June 18, 2021, was in respect to Charter applications brought by various parties contending the entry requirements and measures set out in Order-In-Council PC #2021-0174 and in earlier Emergency Orders had violated their Charter rights.
(1) Application for an injunction against the Federal Government from continuing with the mandatory entry requirements or measures for returning travellers entering Canada from abroad was decided in Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.).
[104] The first relevant case in respect to the entry requirements or measures contained in Order-In-Council PC #2021-0174 and earlier Emergency Orders was an application brought before the Federal Court, which sought an injunction against the continued operation of those entry requirements and measures by the Federal Government, that included the entry requirement for travellers entering Canada by air from abroad having to stay at a government-approved accommodation or hotel for 3 days while awaiting test results, where failure to fulfill this entry requirement into Canada would result in a federal contravention being issued with a set fine of $3,000. Other entry requirements being impugned included the stipulation that certain travellers would have to go to a Designated Quarantine Facility upon arrival if they had symptoms of COVID-19 or had failed to obtain a negative COVID-19 molecular pre-departure test and/or refused to undergo a test upon arrival. On April 23, 2021, Pentney J. of the Federal Court in Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360, refused to grant the injunction, which is only 18 days after the defendant had been charged with committing the two Quarantine Act offences on April 5, 2021.
[105] Furthermore, Pentney J., at paras. 8 to 9, in Spencer v. Canada (Attorney General), held that any harm to the applicants' rights and freedoms from a temporary stay at a government-approved hotel is not a sufficient basis to suspend a significant public health measure that is based on the advice of scientific experts, and which seeks to prevent or slow the spread of COVID-19 and its variants into Canada. In addition, Pentney J. considered the alternative suggested by the applicants that travellers entering Canada from abroad should be required to immediately quarantine at their residence. In rejecting that alterative proposal, Pentney J. held that the alternative suggestion did not take into account the evidence that 1-2% of air travellers arriving in Canada, who had taken a COVID-19 test shortly prior to departure were nevertheless testing positive upon arrival in Canada, nor did it reflect the evidence that individuals in quarantine continued to pose a risk of spreading the virus by their contact with others [emphasis is mine below]:
Any harm to the Applicants' rights and freedoms from a temporary stay at a hotel is not a sufficient basis to suspend a significant public health measure that is based on the advice of scientific experts, and seeks to prevent or slow the spread of COVID-19 and its variants into Canada. The reasonable alternative proposed by the Applicants, namely immediately quarantining at their residence, does not take into account the evidence that 1-2% of air travellers arriving in Canada after having taken a COVID-19 test shortly prior to departure were nevertheless testing positive upon arrival in Canada, nor does it reflect the evidence that individuals in quarantine continued to pose a risk of spreading the virus by their contact with others.
The risk of importing one of the more transmissible and more dangerous COVID-19 variants is demonstrably significant. Based on the evidence before me, I conclude that it would not be just or equitable to suspend the operation of the challenged quarantine measures pending the determination of the merits of the Applicants' Charter claim.
(2) The Federal Court in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622 also considered that instead of the 3-day prepaid stay at a government-approved hotel entry requirement that had been implemented, whether there were any reasonable alternatives that the Federal Government could have chosen to implement for preventing the introduction or spread of the disease
[106] Crampton C.J. of the Federal Court, at paras. 235 to 251, in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622, had also considered the contention of whether a reasonable alternative to the entry requirement of the mandatory 3-day stay at a government-approved hotel would be the requirement for an air traveller entering Canada to isolate at their own residence for 14 days. In considering whether the suggested alternative was reasonable, Crampton C.J. had relied on data from a testing pilot conducted in Alberta in November and December of 2020 which had demonstrated that approximately 1 to 2% of asymptomatic travellers entering Canada were infected with COVID-19. In other words, Crampton C.J. reasoned that for every flight of 100 people arriving in Canada, on average one or two were infected with COVID-19. Moreover, Crampton C.J. said other data that had been provided indicated that in January of 2021, the number of passengers arriving in Canada by air had reached 325,765 and that imported cases of COVID-19 from international flights with confirmed COVID-19 cases on them had increased more than three-fold from September 2020 (131 flights carrying 157 cases) to January 2021 (407 flights carrying 698 cases from Jan. 1 to 27). After reviewing the Explanatory Notes that had accompanied the February 2021 Emergency Order, medical information, and data from tests done in the pilot project, Crampton C.J. concluded that the suggested alternative would not have been a reasonable alternative because the air traveller would still have to take a form of transportation to their residence, which would cause the air traveler to be in contact with other people or with their own family members in their residence and could also expose these people to the COVID-19 virus, even though the air traveller may have been asymptomatic when they entered Canada. Moreover, Crampton C.J. held that the Emergency Orders containing the impugned entry requirements or measures had been neither arbitrary nor ultra vires the Quarantine Act [emphasis is mine below]:
In this regard, the most relevant aspects of the record include the recitals to the February Order, Explanatory Notes that accompanied that Order, and the evidence adduced by the Respondent's affiants. Those materials reveal that the AIC did in fact reach the opinion that no reasonable alternatives to the Impugned Measures were available to prevent the spread of COVID-19.
The fourth recital to the February Order in which the Impugned Measures are contained specifically states: "And whereas the Administrator in Council is of the opinion that no reasonable alternatives to prevent the introduction or spread of [COVID-19] are available."
Turning to the specific alternatives that the RNN Applicants state were available, they are the following:
i. Continuing to rely on the measures that were in place before the Impugned Measures were promulgated -- the Applicants maintain that those prior measures "had all but eliminated the problem the GAA was later implemented to address";
ii. A requirement for incoming air travellers to quarantine apart from health-care workers and vulnerable persons -- the Applicants assert that this requirement may have prevented the COVID-19 outbreak at the Roberta Place, discussed at paragraph 106 above;
iii. Enhanced testing;
iv. Prohibiting incoming air travellers from taking any form of "public conveyance";
v. Stricter requirements for quarantine and isolation plans;
vi. Permitting anyone who has private transportation from the airport to proceed directly to their suitable place of quarantine, rather than awaiting the result of their Day 1 Test before being permitted to do so; and
vii. Restricting vacation travel, as was done when travel to Mexico and the Caribbean was restricted under another Order.
Regarding continued reliance on the measures that were in place before the promulgation of the Impugned Measures, the Explanatory Notes to the February Order state the following:
Based on current review of international experience with new variants, introducing additional measures that leverage the availability of testing technologies to further prevent the introduction and spread of COVID-19 or new variants of concern in Canada is justifiable.
[February Order, Explanatory Notes, above, p. 726]
In addition, Ms. Barton, who is primarily responsible for the development of OICs pursuant to the provisions of the Quarantine Act, stated that the information available at that time "demonstrated that the measures in place since January 7, 2021 were inadequate to prevent or to limit sufficiently the importation of COVID-19 cases into Canada via aircraft especially in light of the emergence of the VOCs": Barton Affidavit, above, at para 17. In that same paragraph, she identified that information as follows:
i. "Prior to the [promulgation of the Impugned Measures], asymptomatic travellers entering Canada were able to travel onward via public conveyance which could have included domestic flights;
ii. Data from a testing pilot in Alberta in November and December 2020 demonstrated that approximately 1 to 2% of asymptomatic travellers entering Canada were infected with COVID-19. In other words, for every flight of 100 people arriving in Canada, on average one or two were infected with COVID-19 ...; [Ms. Barton subsequently produced other data showing that in January 2021, the number of passengers arriving into Canada by air reached 325,765. In that same month "data on imported cases of COVID-19 demonstrated more than a three-fold increase in the number of affected flights (international flights with confirmed COVID-19 cases on them) from September (131 flights carrying 157 cases) to January (407 flights carrying 698 cases from Jan 1--27): Barton Affidavit, at paras 19 and 20.]
iii. After the implementation of pre-departure testing on January 7, 2021, information from an Ontario pilot program showed that 2.2% of asymptomatic travellers entering Canada were infected with COVID-19 notwithstanding their having had a negative pre-departure test ...;
iv. Data from testing of the travellers on flights from January 10 to 18, 2021 arriving from a country lacking the resources to administer pre-departure tests showed a COVID-19 positivity rate of 6.8% in asymptomatic travellers ...; and
v. Evidence on the increased transmissibility of VOCs suggested that Canada needed to take more precautions at ports of entry to reduce as much as possible the risk of starting new chains of transmission with these variants."
Ms. Barton further stated that she received information from a broad range of sources, and that this information was used "to support the Minister of Health in her role in making recommendations for the drafting of OICs": Barton Affidavit, above, at para 10.
Considering the foregoing, I am satisfied that continued reliance on the measures in place prior to the promulgation of the Impugned Measures was in fact considered and rejected by the AIC on reasonable grounds.
Regarding the six other alternatives identified by the RNN Applicants, three of them were included in the February Order. It can be inferred from the justifications that were provided for the Impugned Measures, including the requirement to stay in a GAA or a DQF, that the alternatives listed immediately below were not considered to be sufficient, in and of themselves or even in aggregate, to address the risks to which that requirement was addressed. As further discussed at paragraphs 109-112 above, those justifications were: (i) the likelihood that persons who tested positive on their Day 1 Test would modify their behaviour upon their arrival at their suitable place of quarantine, (ii) preventing arriving air travellers from immediately taking a domestic air flight or other form of public transportation; (iii) preventing persons who are awaiting their Day 1 Test results from infecting anyone at their home or other suitable place of quarantine, or in the community, while they are staying at a GAA or a DQF, and (iv) facilitating early identification and isolation of asymptomatic air travellers who are infected.
The three specific alternatives identified by the RNN Applicants and included in the February Order are as follows:
i. Avoiding contact with health care workers and vulnerable persons: Paragraph 1.3(f) provides that a suitable quarantine plan must indicate that the place of quarantine will allow the traveller "to avoid all contact with vulnerable persons and persons who provide care to those persons, unless the vulnerable person is a consenting adult or is the parent or dependent child in a parent-child relationship." Paragraph 1.3(g) contains a similar provision with respect to avoiding all contact with a health care provider. Paragraph 3(1)(a.1)(ii) and (b) (ii) also requires an asymptomatic person to quarantine at a location where they will not be in contact with a vulnerable person (subject to the same proviso mentioned above). Clause 9(b)(ii) contains a similar provision for symptomatic persons.
ii. Additional testing: Section 1.4 of the Order included provisions for enhanced testing (i.e., the Day 1 Test and a second test).
iii. Avoiding public transportation: Paragraph 10(1)(c) provides that a symptomatic person is considered to be unable to isolate themselves if it is necessary to use a public means of transportation to travel from their place of entry into Canada to the place where they would isolate themselves. Although it may well have been desirable to include a similar provision for asymptomatic persons, it can be inferred from the justifications that were provided for the GAA requirement that such an addition to the February Order was not considered to be sufficient to address the risks to which this requirement was addressed: see paragraphs 109-112 above.
Regarding the remaining three alternatives identified by the RNN Applicants, once again, It can be inferred from the justifications that were provided for the Impugned Measures (see paragraph 242 above), including the requirement to stay in a GAA or a DQF, that those alternatives were not considered to be sufficient to address the risks to which that requirement were targeted.
In considering the Impugned Measures, Ms. Barton and her team received information regarding steps being taken in other countries, including Australia and New Zealand. However, the more strict approach pursued by Australia, New Zealand and certain other island countries was not considered to be feasible here, given the length of the land border shared with the United States.
In summary, contrary to the RNN Applicants' submission, the AIC did in fact reach the opinion that no reasonable alternatives to prevent the introduction or spread of COVID-19 were available. This is clear from the fourth recital to the February Order, reproduced at paragraph 236 above. In this regard, the AIC specifically considered that the measures in force prior to the promulgation of the Impugned Measures were not sufficient to address the risk posed by COVID-19. This is plainly apparent from the excerpt of the Explanatory Notes to the February Order, reproduced at paragraph 238 above.
In addition, the AIC specifically addressed three of the remaining six alternatives identified by the RNN Applicants, in the February Order. It is implicit from the fact that the AIC also included the GAA/DQF stay requirement in that Order that the AIC considered that the three alternatives in question, by themselves would not be sufficient to address the risks posed by COVID-19.
It can be inferred from the justifications that were provided for the Impugned Measures that the remaining three alternatives identified by the RNN Applicants were not considered to be sufficient to address the risks to which the Impugned Measures targeted. Those justifications also reflect that the Impugned Measures were consistent with the purpose underlying section 58 of the Quarantine Act.
Finally, approaches adopted by other countries were considered.
Given all of the foregoing, I conclude that the Orders containing the Impugned Measures are not ultra vires the AIC. The record as a whole reveals that the AIC did in fact reach the opinion that no reasonable alternatives to prevent the introduction or spread of COVID-19 in Canada were available. That opinion is entitled to some deference, particularly given that paragraph 58(1)(d) enables the AIC to exercise the emergency powers provided for in subsection 58(1) when it is of the opinion that the conditions described in paragraphs (a) -- (d) are met. So long as there is a reasonable basis in the record to support that opinion, it does not matter that others, such as the RNN Applicants, may believe or even demonstrate that there was in fact a reasonable alternative available. As it turns out, the alternatives identified by the RNN Applicants were also considered, either explicitly or implicitly. They were not considered to be adequate to prevent the introduction or spread of COVID-19 in Canada.
The RNN Applicants also submit that the Orders containing the Impugned Measures are ultra vires the Quarantine Act because they are arbitrary. For the reasons I have already given at paragraphs 77, 103-122 and 166-179 above, I disagree.
(3) Crampton C.J. also commented in Spencer v. Canada (Minister of Health) that the principles of fundamental justice would not prevent the state from performing its essential function of protecting its citizens from the health risk which is caused by people travelling outside of Canada during the COVID-19 pandemic or who had been unwilling to make sacrifices, and had instead engaged in behaviour that poses a demonstrated risk to the health and safety of others
[107] Crampton C.J. also made some concluding observations in Spencer v. Canada (Minister of Health), at paras. 308 to 311, and commented that the principles of fundamental justice would permit the imposition of stronger border control measures, such as a longer period of quarantine at the border, should the Administrator-In-Council become of the opinion that the preconditions set forth in paragraphs 58(1)(a) -- (d) of the Quarantine Act are met, and that it also would not be necessary to resort to section 1 of the Charter to impose such a measure. Moreover, Crampton C.J. also recognized that those who have second residences abroad or have other good reasons to travel may not welcome such measures, particularly if they are required to pay for some of them. However, Crampton C.J. reasoned that like times of war and other crises, pandemics call for sacrifices to save lives and avoid broad based suffering and if some are unwilling to make such sacrifices, and instead engage in behaviour that poses a demonstrated risk to the health and safety of others, the principles of fundamental justice will not prevent the state from performing its essential function of protecting its citizens from that risk [emphasis is mine below]:
Given that the COVID-19 pandemic may continue to evolve and new Variants of Concern may continue to emerge, I consider it appropriate to make some concluding observations. This is particularly so because, when pressed as to why stronger border control measures were not imposed, one of the reasons identified by the Respondent was the Charter. In addition, the federal government may need to act swiftly to address threats that new or existing Variants of Concern may present.
In brief, I consider that the principles of fundamental justice would permit the imposition of stronger border control measures, should the AIC become of the opinion that the preconditions set forth in paragraphs 58(1)(a) -- (d) of the Quarantine Act are met. This includes a longer period of quarantine at the border. In my view, it would not be necessary to resort to section 1 of the Charter to impose such a measure.
In addition to saving more lives and considerable suffering, especially for those who would otherwise be hospitalized or experience serious symptoms over an extended period of time, such a measure might well serve other important purposes. These include reducing the perception of some, such as the Applicants in this case, that weaker and less uniformly applied measures are unfair and do not contribute meaningfully to preventing the entry and spread of COVID-19 and Variants of Concern.
I recognize that those who have second residences abroad or other good reasons to travel may not welcome such measures, particularly if they are required to pay for some of them. However, like times of war and other crises, pandemics call for sacrifices to save lives and avoid broad based suffering. If some are unwilling to make such sacrifices, and engage in behaviour that poses a demonstrated risk to the health and safety of others, the principles of fundamental justice will not prevent the state from performing its essential function of protecting its citizens from that risk: Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 1; R v Jones, 2006 CanLII 28086 at para 31 (Ont CA). Of course, like other principles, the principles of fundamental justice have their limits. But I consider that there is currently additional leeway within those principles, before resort must be had to section 1 of the Charter.
(4) Charter and constitutional challenges to the entry requirements and measures imposed on travellers returning to Canada from abroad were also raised in Spencer v. Canada (Minister of Health).
[108] Furthermore, in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622, the Federal Court had to consider various applications brought by several applicants challenging the entry requirements for travellers returning to Canada from abroad, as infringement of their Charter rights:
(1) under s. 6(1) (the right as a Canadian citizen to enter, remain in and leave Canada);
(2) under s. 7 (the right not to be deprived life, liberty and security of the person except in accordance with the principles of fundamental justice);
(3) under s. 8 (the right to be secure against unreasonable search or seizure);
(4) under s. 9 (the right not to be arbitrarily detained or imprisoned);
(5) under s. 10(b) (the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right);
(6) under s. 11(d) (that when charged with an offence, the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal);
(7) under s. 11(e) (that when charged with an offence, the right not to be denied reasonable bail without just cause); and
(8) under s. 12 (the right not to be subjected to any cruel and unusual treatment or punishment);
[109] The applicants in Spencer v. Canada (Minister of Health) also contended that the entry requirements for travellers returning to Canada from abroad had violated their right to enjoyment of property under s. 1(a) of the Canadian Bill of Rights, that the Federal Government did not have the jurisdiction under s. 58 of the Quarantine Act to implement the entry requirements and measures, and that the entry requirements and measures were ultra vires s. 91(11) of the Constitution Act, 1867.
[110] Crampton C.J. in Spencer v. Canada (Minister of Health) had considered the applications challenging the constitutionality of the entry requirements or measures imposed on travellers returning to Canada from abroad and held at paras. 299 to 307 that the entry requirements or measures in and of themselves, did not violate ss. 6(1), 7, 8, 9, 10(b), 11(d), 11(e) or 12 of the Charter. However, for one specific applicant, Crampton C.J. did find that the applicant had proven that their right not to be arbitrarily detained or imprisoned under s. 9 and the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right under s. 10(b) of the Charter had been violated because of the entry requirements and measures of the Emergency Order of January 2021, and that those violations of the applicant's rights cannot be demonstrably justified in a free and democratic society. Moreover, Crampton C.J. had concluded that because the border control officials had refused to disclose to the applicant and her spouse the location of the facility to which the applicant was being taken, the applicant’s right under s. 9 of the Charter had been infringed. For the s. 10(b) infringement, Crampton C.J. concluded that because the applicant had been detained the applicant was not properly informed of her right to retain and instruct counsel without delay. In addition, Crampton C.J. reasoned that the ss. 9 and 10(b) violations had pertained to government action or administrative practice, so that the appropriate remedy would lie under s. 24(1) of the Charter, rather than s. 52 of the Constitution Act, 1867. However, Crampton C.J. concluded that no remedy was available for the applicant as the applicant had not given notice of an intention to seek a remedy under section 24(1).
[111] But more significantly, Crampton C.J. had noted that the violations of this particular applicant’s rights, who had been detained under the January 2021 Emergency Order, was subsequently remedied by the changes that were made in the February 2021 Emergency Order and its successors, which had replaced the January 2021 Emergency Order. Moreover, Crampton C.J. also noted that beginning with the Emergency Order of February 2021, the issue with the s. 9 Charter violation was corrected by having travellers, who had been required to stay in a government-approved hotel, book their own reservation at the hotel so that the traveller would know its location. And for travellers who would be required to stay in a Designated Quarantine Facility they would be provided with the relevant details pertaining to that facility. As to the s. 10(b) violation, Crampton C.J. reasoned that border control officials would now be aware that they must clearly communicate to travellers the right to retain and instruct counsel in a manner that is readily understood, at the outset of the detention. Furthermore, Crampton C.J. also held that the Emergency Orders containing the impugned entry requirements or measures are within the authority of the Administrator-In-Council, and were not unreasonable, as well as being within the jurisdiction of the federal government. In addition, Crampton C.J. held that the Emergency Orders containing the impugned entry requirements or measures also did not contravene s. 1(a) of the Canadian Bill of Rights [emphasis is mine below]:
For the reasons set forth in part VIII.A. of this decision, the Impugned Measures, in and of themselves, do not violate any of section s 6(1), 7, 8, 9, 10(1)(b), 11(d), 11(e) or 12 of the Charter. However, the manner in which the Impugned Measures were implemented with respect to the Applicant Nicole Mathis violated her rights under sections 9 and 10(1)(b) of the Charter.
In particular, (i) the refusal of border control officials to disclose to Ms. Mathis and her spouse the location of the facility to which she was being taken infringed her right under section 9, and (ii) the fact that she was not properly informed of her right to retain and instruct counsel without delay, infringed her rights under section 10(1)(b).
For the reasons set forth in part VIII.B. of this decision, those violations of Ms. Mathis' rights cannot be demonstrably justified in a free and democratic society.
Given that those violations pertained to government action or administrative practice, the appropriate remedy lies under section 24(1) of the Charter, rather than section 52 of the Constitution Act, 1867: Hutterian Brethren, above, at para 67. However, the Notice of Constitutional Question that Ms. Mathis and the other Spencer-Duesing Applicants served on the Respondent pursuant to section 57(1) of the Federal Courts Act did not give notice of an intention to seek a remedy under section 24(1). Instead, it only referred to the alleged violations and to section 52. The same is true of the written submissions that were made on behalf of those Applicants. Therefore, I do not consider it appropriate to issue any remedy under section 24(1), even though the Notice of Application filed on behalf of Ms. Mathis and Mr. Duesing in Court file T-366-21 referred to relief under that section.
As a practical matter, nothing turns on this, because the evidence establishes that the first of the two violations of Ms. Mathis' rights has been remedied since she was detained at under the January Order. Under the February Order and its successors, travellers who are required to stay in a GAA must book their own reservation there (so they will know its location), while travellers who are required to stay in a DQF are provided with the relevant details pertaining to that facility. As to the second violation, 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.
For the reasons set forth in part VIII.C. of this decision, I have also concluded that the Orders containing the Impugned Measures are within the authority of the AIC and are not unreasonable.
For the reasons provided in part VIII.D. of this decision, I have concluded that the Orders containing the Impugned Measures are within the jurisdiction of the federal government.
Finally, for the reasons explained in Part VIII.E. of this decision, the Impugned Measures do not contravene section 1(a) of the Bill of Rights.
Accordingly, these Applications will be dismissed.
5. ISSUES
[112] The following are issues which have arisen in this trial and will need to be resolved:
(a) Has the prosecution proven beyond a reasonable doubt the actus reus of the two offences that the defendant has been charged with committing under ss. 15(3) and 58 of the Quarantine Act, S.C. 2005, c. 20?
(b) Has the defendant met her legal burden in proving the mistake of fact defence on a balance of probabilities, so as to make her acts or omissions innocent in not booking a 3-day prepaid stay at a government-approved hotel and in not undergoing the Day 1 COVID-19 molecular (PCR) test at the airport which the defendant had been legally required to do?
(c) For the first basis of the defendant’s mistake of fact defence, is the defendant’s mistaken belief reasonable and honest that she only needed to have a negative PCR test and have a plan to isolate and quarantine for 14 days in order to fulfill the legal requirements for entry into Canada?
(d) For the second basis of the defendant’s mistake of fact defence, is the defendant’s mistaken belief reasonable and honest that she did not have to comply with the entry requirements of booking a 3-day prepaid stay at a government-approved hotel and undergoing the Day 1 COVID-19 molecular (PCR) test at the airport because those entry requirements would infringe on her right as a Canadian citizen to enter, remain in and leave Canada under s. 6 of the Charter?
(e) Is the defendant’s claim of having made a reasonable and honest mistake of fact instead a mistake of law in essence made by the defendant?
6. ANALYSIS
[113] The defendant, Wai Wun HUNG, a Canadian citizen, had returned to Canada by air from a trip abroad on Monday, April 5, 2021. She arrived at Terminal 3 at the Toronto Pearson International Airport, shortly after midnight