R. v. Ressel, 2022 BCPC 260

Citation: R. v. Ressel 2022 BCPC 260 Date: 20221019 File Nos: FC01427857-1 FC01373498-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. RICHARD ALEXANDER RESSEL ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: J. Mahil Appearing on his own behalf: R. Ressel Place of Hearing: Surrey , B.C. Date of Hearing: October 17, 2022 Date of Judgment: October 19, 2022

[ 1 ] Mr. Ressel has appeared before me stating that he is not guilty and wishes to dispute what is known as COVID-19 tickets issued pursuant to the Quarantine Act . [ 2 ] The Court heard testimony from Public Health Agency of Canada ( “ PHAC ” ) Officer Chong who has been employed by PHAC for the past 30 years.

At the time of the two matters he was assigned to passenger conveyance, and was mandated to enforce the Quarantine Act and has been assigned screening for the past two and a half years at both land and air ports of entry into Canada. [ 3 ] On both April 12, 2021 and June 11, 2021 he was tasked as being the assigned quarantine officer at the Pacific Highway land crossing (“PAC”) located at 28 176 Street, Surrey, British Columbia.

He was tasked with enforcing the Quarantine Act and the Emergency Orders that flowed from that as a result of the COVID-19 world pandemic. [ 4 ] He testified that the procedure in place was that a traveller would pull up at the port of entry and first interact with a member of the Canada Services Border Agency (“CBSA”), where the Border Services Officer (“BSO”) would ask questions of persons seeking entry to Canada and receive answers. The BSO is the first contact person to screen for permissible entry by a person seeking entry.

If the BSO believes that there is a conflict or a concern about non-compliance or inadmissibility, the person would be referred by the BSO into the CBSA building for an assessment. In this instance, Mr. Ressel was referred to PHAC who had an area set up within the CBSA Pacific Highway building for an assessment. [ 5 ] Officer Chong was on duty on April 12, 2021 at 2:29 p.m. when Mr. Ressel was referred to him by a BSO for an assessment. Upon meeting Mr.

Ressel, he did not present to the BSO the mandatory COVID-19 PCR molecular test that was required at the time for entry from the United States into Canada that had to be completed within 72 hours of entry to Canada. Mr. Ressel indicated that his intentions as a Canadian citizen was that he was entering from the United States to visit his mother. At the time, Mr. Ressel had no valid exemption. That was confirmed by the BSO. Officer Chong testified that after confirming Mr.

Ressel’s identification and purpose of entry that he offered to him that he could voluntarily withdraw his request to be admitted to Canada, return to the United States, obtain a valid COVID-19 PCR molecular test and re-attend the border for admission. Mr. Ressel declined to do so and insisted that he be admitted to Canada. [ 6 ] Ticket Number FC01427857 was issued to Mr. Ressel by Officer Chong pursuant to

Section 58 of the Quarantine Act for failing to abide by the conditions for entry into Canada at that time and a fine in the amount of $3,450 (inclusive of the victim surcharge) was assessed against Mr. Ressel. Exhibit 1, tab 1, in this proceeding is a copy of the ticket issued. Mr. Ressel takes no issue with the ticket. Officer Chong testified that he presented Mr. Ressel with both the ticket and the paperwork on how to file a dispute if he wished to do so. [ 7 ] Exhibit 1, tab 2 in this proceeding is the Certificate of Service. Mr.

Ressel takes no issue with such. [ 8 ] Exhibit 1, tab 3 is in this proceeding is the dispute filed by Mr. Ressel for ticket FC01427857. [ 9 ] Mr. Ressel was identified by Officer Chong by the Canadian passport of Mr. Ressel. Identification is not at issue in this matter. [ 10 ] The ticket was issued on April 12, 2021 due to the failure of Mr. Ressel when he presented himself at the PAC crossing that he did not have with him a valid COVID-19 PCR molecular test and as such he failed to comply with the Quarantine Act and the Emergency Health Orders in place at that time. [ 11 ] Mr.

Ressel declined Officer Chong’s offer to return him to the United States to obtain a valid COVID-19 PCR molecular test. Mr. Ressel was sent on his way wherein in accordance with the Quarantine Act and the Emergency Health Orders he was left with both a Day 1 and a Day 8 COVID-19 test to self-administer, and he was required to fully quarantine for 14 consecutive days. [ 12 ] On June 11, 2021, again Mr. Ressel presented himself in person to the CBSA BSO at the PAC crossing. This time Mr.

Ressel admitted that he was fully aware of the Quarantine Act and the Emergency Health Orders requirement that he must have on him a valid COVID-19 PCR molecular test to permit entry. Mr. Ressel presented himself at the PAC crossing on June 11, 2021 at approximately 15:05 hours which again is located at 28 176 Street, Surrey, and British Columbia. Again, Mr. Ressel was unable to produce a valid COVID-19 PCR molecular test and the BSO referred him to the CBSA office to determine his admissibility and to meet the PHAC.

The requirement remained that he was required to present a negative COVID-19 PCR molecular test within 72 hours of his entry to Canada and he did not do so. Mr. Ressel presented himself to the PHAC officer who was again Officer Chong who testified that he readily recognized and identified Mr. Ressel. Identification again is not at issue. Mr. Ressel acknowledged to him that he was aware this time that the test was required and that he did it, but that he did not have the results. No paper or electronic version of a valid test was produced. Again, Officer Chong offered to Mr.

Ressel that he could voluntarily return to the United States, obtain a test and re-enter, however, again Mr. Ressel declined to do so. Mr. Ressel, being a Canadian citizen, entered being in non-compliance. [ 13 ] Exhibit 1, tab 4 in this proceeding is Ticket FC01373498 which Officer Chong issued to Mr. Ressel in the amount of $5,750. Mr. Ressel’s actions were contrary to

Section 58 of the Quarantine Act and the Emergency Orders. He was also concurrently provided with documentation on how to file a dispute should he wish to do so. [ 14 ] In the intervening time of April 2021 to June 2021, the Government of Canada had increased the fines due to the increasing spread of COVID-19 and the B-1 variant now within Canada and thus steps were taken for public safety and health. [ 15 ] Exhibit 1, tab 5 in this proceeding is the service upon Mr. Ressel. [ 16 ] Identification of Mr. Ressel is not at issue in either matter.

In both instances he was identified on scene with his Canadian passport and was identified by Officer Chong in court. [ 17 ] Mr. Ressel was released and he was again provided a Day 1 and 8 COVID-19 test and was required to self-quarantine for a 14 consecutive day period. [ 18 ] On cross-examination, Officer Chong reiterated that Mr. Ressel was not qualified nor eligible for any of the exemptions. Mr.

Ressel had not applied for any compassionate grounds consideration. [ 19 ] The Court heard testimony from Mr. Richard Ressel who said that on both occasions he was entering Canada as a Canadian citizen with a valid Canadian passport and seeking to visit his mother who was ill with cancer.

He noted that he had been, in his words, “waiting forever”, due to the COVID-19 Emergency Orders to see his mother. [ 20 ] He testified that upon arrival at PAC on April 11, 2021 that he was not aware that he was required to present a negative COVID- 19 PCR molecular test within 72 hours of arriving at the Canadian port of entry. He acknowledged that Officer Chong on that date at the PAC crossing in Surrey, British Columbia, offered that he could voluntarily return to the United States, obtain a test and re-enter, but that he declined to do so saying that he did not wish to return and pay for a hotel.

I am not aware of why he believed that he could or could not obtain a same day test. Mr.

Ressel testified that despite indicating to the Court that he was not aware of the testing requirements that because he fulfilled the requirement of a Day 1 and 8 test and quarantined for 14 consecutive days, that in any event, it was illogical to have a pre-arrival test in hand. [ 21 ] He testified that upon entering the PAC crossing on June 11, 2021, that this time he was fully aware of the requirement that he have on hand a negative COVID-19 PCR molecular test that he said that he had one online from Abbot Laboratories, but that he could not pull it up electronically before Officer Chong.

He chose not to additionally carry a paper copy on his person. He did not provide any evidence as to the date, time and location of any test allegedly taken. He did not provide to this Court in the course of this proceeding, even now, any evidence that the test had been taken. Officer Chong provided no testimony to support that a test had been completed by Mr. Ressel. Mr. Ressel, in his words, testified that he “tried” to comply.

He then complained, again in his words, about the “outrageous” dollar amounts of the fine and that because he complied with Day 1 and 8 testing and quarantined, that the pre-arrival test was not necessary in any event. [ 22 ] On cross-examination, Mr. Ressel is born on June 3, 1977; he is a Canadian citizen; he uses his mother’s address for his contact when in Canada and currently resides in La Jolla, California. [ 23 ] He acknowledged receipt of the ticket dated April 12, 2021, which is Exhibit 1, tab 1.

He acknowledged to completing the dispute, which is Exhibit 1, tab 3. [ 24 ] He admitted on cross-examination that he was fully aware of the pre-arrival test requirement in place on June 11, 2021, that said that his app online was not working. He admitted that he was offered by Officer Chong to return to the United States and that he declined to do so. [ 25 ] He acknowledged that Exhibit 1, tab 4 is the ticket issued on June 11, 2021 and that Exhibit 1, tab 6 is his completed dispute notice. [ 26 ] In March 2020, the World Health Organization (“WHO”) declared that COVID-19 was a worldwide pandemic.

In essence, much of the world as we know it came to a halt and most certainly, that included the trans-border movement of persons. [ 27 ] One part of Mr. Ressel’s submission is that he arrived both times at the PAC crossing as a Canadian citizen and presented his Canadian passport which states on the inside: The Minister of Foreign Affairs of Canada requests, in the name of Her Majesty the Queen, all those whom it may concern to allow the bearer to pass freely, without delay or hindrance, and to afford the bearer such assistance and protection as may be necessary. Mr.

Ressel submits to this Court that his Canadian passport and those words permit him freedom of entry. I respectfully disagree. Most notably, the word “requests” is key. One may “request” but there is no requirement. Mr. Ressel surely was well aware by April and June 2021 of the ravages of COVID-19 globally and the impact upon global citizens. One simply does not freely come and go in the midst of a global pandemic while the Government of Canada has enacted measures under the Quarantine Act and Emergency Orders believing that his passport overrides such. Quite sincerely, that is too simplistic of a belief.

Every country was grappling with the spread of COVID-19 and even the country where he resides in the United States were no strangers to putting in place both national and state laws to control the spread of COVID-19. [ 28 ] Mr. Ressel seeks to convince this Court that it really was not important to have a negative COVID-19 PCR molecular test each time in April and June 2021 because he had to do a Day 1 and 8 test and quarantine for 14 days, which he did and had no positive results.

Again, while this at first blush appears simplistic and novel, he fails to consider that again, at the height of an unprecedented global pandemic that he and every other person seeking to cross international borders is COVID-19 free. That was and still remains not true. [ 29 ] Mr. Ressel testified to the Court that in April 2021, some 13 months past the WHO announcement, he simply did not know that he needed a negative COVID-19 PCR molecular test. I respectfully disagree. By his own admission, he testified that it had been a long wait for him to enter Canada to visit his mother.

He knew that there had been waits because he would have logically known the requirements. Mr. Ressel simply chose not to follow the law. [ 30 ] The relevant sections in April 2021 of the Emergency Order 2021-0174 for his Federal Violation Ticket FC 01427857 required that Mr. Ressel concurrently present himself at the land border with a valid negative COVID-19 PCR molecular test within 72 hours of his arrival and a Day 1 and 8 test plus 14 days quarantine.

In 2021, COVID-19 continued to spread, full vaccination was clearly not achieved globally and the B-1 variant was spreading in the world, including Canada and the United States. The Emergency Order 2021- 0174 required of Mr. Ressel that upon entering by land at his pre-arrival he was required to have the negative COVID-19 PCR molecular test collected no more than 72 hours before his arrival at a border. In the alternative, to present a positive test that was performed either in or outside of the United States of a specimen collected at least 14 days and no more than 90 days before entering Canada.

He failed to do either. [ 31 ] Similarly, upon his attendance at PAC crossing in June 2021, Emergency Health Order 2021-0421 for Federal Violation Ticket FC 01373498 set out the same stipulation. Again, Mr. Ressel failed to comply. Aggravating to this is his admission that he knew that he

was required to produce a clean COVID-19 test and did not do so. His testimony was that he had one however was unable to pull it up. That was his responsibility prior to presenting for entry to Canada. Even at the trial herein, he failed to produce that he had taken such a test. [ 32 ] At the time of his entry in April 2021, Emergency Order 2021-0174 required that concurrently upon arriving at a port of entry that there was a mandatory 14-day quarantine period with Day 1 and 8 testing. This was identically in place for June 2021 under Emergency Order 2021-0421. Mr.

Ressel only complied with one-half of the entry requirements. [ 33 ] Mr. Ressel testified that his mother was suffering from cancer and he needed to come to Canada on compassionate grounds. The Emergency Orders did not permit any such exemption and he was not eligible for any of the other exemptions. He failed to apply or provide any evidence that he was eligible for any such exemptions. This was confirmed by Officer Chong in his testimony. [ 34 ] Mr.

Ressel’s submission that it was not necessary to present with a negative COVID-19 PCR molecular test in any event on both occasions because he would have to do a Day 1 and 8 test and concurrently quarantine for 14 days and that he did so on both occasions. Mr. Ressel fails to appreciate the gravity of a global pandemic.

Across the globe, individuals were choosing to not pay heed to health officers concerns and broke laws and regulations in many countries, and that included Canada. [ 35 ] In 2021, COVID-19 numbers were continuing to escalate, there was a slow rollout of vaccines, there was not a 100 percent up take of persons being fully vaccinated, and the B-1 variant was in Canada, spreading and impacting both vaccinated and non-vaccinated individuals.

The emotional, physical and economic toll that COVID-19 has taken upon individuals, communities and Canada as a whole is undeniably going to have long lasting impacts and thus it is imperative that each obey the law. [ 36 ] Since 2020, this country has seen day-in and day-out, countless frontline workers place their own lives at risk for Canadians. That includes BSO at our ports of entry with CBSA and PHAC staff and officers. These persons, throughout the pandemic, operated day in and out physically facing travellers and persons seeking entry.

There is a reason why a negative COVID-19 PCR molecular test was required. Mr. Ressel may have been asymptomatic, upon physical presentation at the border, however, he is not qualified nor did he have the ability to know if he had COVID-19. All other persons presenting themselves at our ports of entry were in the same position. [ 37 ] For public safety purposes and to prevent the spread of COVID-19, the test requirement was in place to address public safety. That BSO interacted with Mr. Ressel and Mr. Ressel could have had COVID-19. Thereafter Mr.

Ressel entered the PAC CBSA building, interacting with other BSO and other persons seeking entry to Canada and most notably Officer Chong potentially exposing them all to COVID-19. It is a serious matter to which Mr. Ressel failed to responsibly take steps to familiarize himself with the law and appreciate the gravity of COVID-19. [ 38 ] A pandemic is not influenza. Mr.

Ressel’s argument is akin to saying that he did not have to test for Ebola or cholera, which are other contagious diseases akin to COVID-19 at this time, but that is alright because he was intending to isolate in any event, despite interacting with frontline BSO, PHAC and other travellers putting them all at risk until he arrived back in Richmond, British Columbia. That is not acceptable. More so aggravating is his admission that he knew in June 2021 that he had to present the test and that he failed to do so before physically presenting himself at the port of entry. [ 39 ] I find that Mr.

Ressel has violated the Quarantine Act provisions and the Emergency Health Orders for each ticket and is to be found guilty and is to be fined. [ 40 ] At the conclusion of this matter, Mr. Ressel expressed concern that he has a flight booked this weekend to return to the United States of America, thus to save him a return flight trip. I inquired of Mr. Ressel what, if any, his ability is to pay the two fines.

Section 88 of the Offence Act , RSBC 1996, c 338 states: Despite any other

section of this Act or any other Act, in determining the fine to be imposed on conviction, the justice must consider the means and ability of the defendant to pay the fine, and, if the justice is of the opinion that the defendant is unable to pay the amount of the fine that the justice would otherwise impose, the justice may impose a fine in a lesser amount that the justice considers appropriate. [ 41 ] I inquired of Mr. Ressel his circumstances. He is a Canadian citizen residing in the State of California. He holds no other passport or citizenship. He does not hold a Nexus global entry card.

He started up his own soil and compost business in March 2022 earning approximately $2,500 per month. He has no staff. His rent is $1,700 a month. He operates a 2006 vehicle. He said that his family financially supports him. [ 42 ] The Public Prosecutor seeks to convince this Court that the message that must be given is that the laws are in place for a reason. I concur. However, I am also mindful of

Section 88 of the Offence Act . [ 43 ] The Government of Canada relied upon various public health agency measures, the provinces followed with public health measures, and the Government of Canada enforced the provisions of the Quarantine Act and issued Governor in Council Orders under the Minimizing the Risk of Exposure to COVID-19 in Canada under

Section 58 of the Quarantine Act . These measures were introduced and amended from time to time in 2020. Mr. Ressel sought entry in 2021. Travel restrictions have been in place in Canada since March 21, 2020 for non-essential, discretionary travel for persons travelling from the United States and other countries and as of April 15, 2020, the mandatory quarantine was implemented. [ 44 ] Mr. Ressel clearly knew of restrictions when he testified that it was difficult and he had to wait a long period of time to enter Canada. He knew the restrictions.

More so aggravating is that he admitted that he knew of the restrictions in June 2021. Failure to comply with the orders is an offence under the Quarantine Act . Mr. Ressel failed to comply on both occasions.

The purpose of the orders was to ensure that persons entering Canada, with and without symptoms, have mandatory measures in place to protect the health of persons with whom they come into contact with and that contact commences at the port of entry with a BSO, CBSA staff, PHAC staff and persons in that building and persons with whom he may or may not potentially come into contact with on his travel to Richmond, British Columbia. The variant was spreading in 2021. On November 26, 2021, WHO classified the B-1, known as Omicron, as a variant of concern.

[ 45 ] The measures in place are ever evolving, just like COVID-19. Every person presenting him or herself to a Canadian port of entry as an adult is required to ensure that he or she is familiar with the requirements that will be in place and are in place. Mr. Ressel chose not to do so on both occasions. The

preambles in both Orders in Council set out that the purpose is to prevent the spread of COVID-19. [ 46 ] Accordingly, I find that on Federal Violation Ticket FC01427857-1 that Mr. Ressel is to be found guilty. I will impose upon him a fine in the amount of $1,500 plus the victim surcharge. On Federal Violation Ticket FC01373498-1, I find that Mr. Ressel is to be found guilty and that aggravating circumstances exist and that a fine in the amount of $5,000 plus the victim surcharge is to be imposed. (REASONS FOR JUDGMENT CONCLUDED)