2022 QCCQ 13664, 2022 QCCQ 13664

Director of Penal and Criminal Prosecution c. Daskalopoulos 2023 QCCQ 3454 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL LOCALITY OF MONTRÉAL « Criminal and penal division » N° 500-61-550591-227 / 500-61-550590-229 DATE May 26, 2023 ______________________________________________________________________ BY THE HONOURABLE GENEVIEVE CLAUDE PARAYRE PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTOR OF PENAL AND CRIMINAL PROSECUTION Prosecution v.

KRISTINA-MARIA DASKALOPOULOS -and- KYRIAKOULA VAGALIS Defendants ______________________________________________________________________ RECTIFIED JUDGMENT (errors in the judgment’s date and in the hearing date) ______________________________________________________________________ [ 1 ] On May 1, 2021, at Pierre-Eliot-Trudeau airport, officer Savard controls travellers on external flights who do not have proof of reservations and payment for government-authorized accommodation (GAA) [1] in accordance with the Quarantine Act [2] . [ 2 ] Ms. Daskalopoulos and Ms.

Vagalis (the defendants) are referred to her as they arrived in Canada without proof of reservations and payment of a GAA. Officer Savard informs them they are in infraction under the Quarantine Act and offers the possibility of using a telephone and list of GAA available to all, to proceed with a reservation and thus avoid the issuance of a statement of offence. Since defendants refused the offer, she filled out a notice of non-compliance to the Quarantine Act . [ 3 ] The defendants indicate they were required to make a trip to Florida, due to a small water leak in the family condo.

They left on April 3 rd and were scheduled to return on May 1st. They do not dispute they arrived in Canada without proof of reservations and payment of a GAA but add that they were unable to comply with the obligation despite their good will. [ 4 ] They consulted a government website and learned they had to call, 48 hours in advance, a 1-800 number to reserve a GAA. They started to call on April 26 th but, after 2 hours without being able to speak to someone, they decided to try again the next day.

During five days, they spent a total of 15 to 16 hours on the line, sitting in the common game room of their building, without being able to reserve a GAA. [ 5 ] The defendants also state that they were informed by Mr.

Daskalopoulos, who himself spoke to a friend who owns hotels, that there was a shortage of available GAA in Montreal and that only one room was left in Toronto. [ 6 ] When they arrived in Canada, they asked officer Savard to help them make a reservation, but she refused on the basis that it was not her job to do so. [ 7 ] The defendants are of the opinion that they should be acquitted of the offence since they were diligent, responsible and did everything possible to comply with their obligations. [ 8 ] The prosecution is of the opposite opinion and indicates that the steps taken by the defendants are insufficient in the circumstances.

Moreover, prosecution submits the Tribunal should impose a higher standard of diligence to the defendants considering the circumstances in place at the time of the offence. MATTERS IN DISPUTE [ 9 ] The Tribunal must essentially determine whether the defendants have exercised due diligence.

[ 10 ] Therefore, the following questions must be answered: 1. In what context should the due diligence be evaluated? 2. Does the evidence establish the infraction? 3. Did the defendants exercise due diligence? ANALYSIS 1. In what context should the due diligence be evaluated? [ 11 ] The defendants are charged with the offence of not having complied with an order prohibiting or imposing conditions on entry into Canada.

Since this offence is one of strict liability [3] , the defendants can present a due diligence defence. [ 12 ] In this case, prosecution must first establish prima facie evidence of the offence [4] .

It is then up to the defendants to prove, on a balance of probabilities, that they took all reasonable precautions to avoid the infraction [5] . [ 13 ] Due diligence analysis is contextual and will depend on the alleged violation as well as a multitude of other potential factors, including the purpose of the regulation, the consequences of its violation, the foreseeability of the effect and the presence of an alternate available solution [6] .

The Tribunal must analyze the evidence submitted on the basis of an objective standard, which is the assessment of the defendants’ conduct in relation to that of a reasonable person, placed in a similar context [7] . [ 14 ] Due diligence must relate to the commission of the prohibited act and not refer to any broader concept of acting reasonably [8] . [ 15 ] It is not enough for the defendants to show that they exercised some degree of care, but rather that the care they claim to have exercised was sufficient to meet the standard imposed [9] .

The higher the probability of a risk, the higher the duty of care [10] . [ 16 ] At the time of the events, the Government of Canada maintains its alert level, recommending that Canadians avoid all non- essential travel to prevent the spread of Covid-19 and new variants [11] . [ 17 ] In this context and in view of the increase in the number of people infected with Covid-19, the Government of Canada closed its border to all foreign nationals and imposed severe measures on its citizens such as the obligation for all travellers who stayed abroad to undergo a molecular test and await its result in a GAA [12] . [ 18 ] In an explanatory note [13] , the government mentions: In Canada, we are currently facing limited health care system capacity, and a certain proportion of travellers will require the use of clinical resources for care.

In addition, infected travellers can cause secondary transmission to household members or in the community. If travellers are to continue to enter Canada, it is important to reduce the risk of travellers introducing cases of Covid-19 and new variants of concern into Canada as much as possible. [ 19 ] In Spencer v.

Canada (Attorney General) [14] , dealing with the constitutionality of the measures imposed, the Federal Court states: [128] Against this, however, lies the very real risk that some of these travellers will unknowingly bring into Canada a potentially deadly virus, or one of the newly-emerging, more transmissible and perhaps more dangerous variants of concern.

The evidence shows that the virus can be spread by asymptomatic people, that some travellers who test negative 72 hours prior to their flight will test positive when they arrive in Canada, and that well-meaning individuals who quarantined at home for 14 days nevertheless had contact with a great number of others and thereby, perhaps spread the virus during that time. [ 20 ] What constitutes essential travel must be assessed on a case-by-case basis and according to the situation at hand.

In the province of Quebec, at the time of the events, the state of health emergency is still in effect [15] and many measures, such as the imposition of a curfew, the prohibition for red zone residents to travel to a yellow zone [16] and the closure of the border between Quebec and Ontario [17] are incumbent on citizens to limit the spread of Covid-19. [ 21 ] In these circumstances, with the evidence offered, the Tribunal considers, contrary to what the defendants argue, that a small water leak is not a valid reason to constitute an essential travel. [ 22 ] In addition, the Court finds difficult to understand how the defendants were notified of the presence of a small water leak when no one is allowed to enter their condo. [ 23 ] Nevertheless, both upon their departure from Canada [18] and upon their return [19] , the defendants were bound by obligations under the Quarantine Act .

The ones relevant to this case and incumbent on the defendants can be summarized as follows: • Prior to boarding an aircraft, provide proof of a negative molecular test for Covid-19 performed within 72 hours prior to departure (section 2.2(1)); • Upon entry and after entry into Canada, undergo a molecular test with Covid-19 (section 2.3(1)); • Before boarding an aircraft, transmit to the Minister of Health, by way of electronic transmission, an appropriate quarantine plan which includes the name of the GAA where the quarantine will be initiated (sections 3.1, 3.2(2)

b) and 3.3(1)); • Before boarding an aircraft, submit proof of payment of a GAA to the Minister of Health by way of electronic transmission (section 3.4);

• Upon entry into Canada, provide the quarantine officer and screening officer, an appropriate quarantine plan which includes the name of the GAA where the quarantine will begin (sections 3.1 et 3.2 (1)); • Upon arrival in Canada, if the traveller does not show symptoms related to Covid-19, quarantine in a GAA until receipt of the results for the molecular test taken at their arrival (section 4.1). 2. Does the evidence establish the infraction? [ 24 ] The evidence shows that the defendants did not have a GAA reservation when they arrived at the airport. [ 25 ] As stated, this fact is not denied by the defendants.

However, the defendants pointed out to the Court that officer Savard admitted that they had never refused to go to a GAA and that they were never giving the opportunity to reserve a GAA themselves at the airport. [ 26 ] The analysis of the evidence rather shows that officer Savard offered the defendants to make an immediate reservation to avoid the issuance of a statement of offence, which they refused and requested that an officer make such a reservation for them. [ 27 ] Moreover, the Tribunal notes that the defendants indicate in their testimony that they do not remember being offered this possibility.

Their testimony emphasizes that they wanted someone to help them or make a reservation for them. [ 28 ] Finally, the Court believes officer Savard. Her testimony is direct, straightforward and presents no contradiction. 3.

Did the defendants exercise due diligence? [ 29 ] In support of their case, the defendants ask the Court to consider the following: • They obtained information on their legal obligations by consulting a government website; • They followed the instructions on the website, which consisted of calling a 1-800 line two days before returning to the country to reserve a GAA; • They tried for almost 16 hours, spread over 5 days, to reserve a GAA by calling the 1-800 line without success; • They asked Mr.

Daskalopoulos to help them; • They asked agent Savard for help without success; • They cannot be held responsible for the lack of space in the GAA; • They are law-abiding citizens, well educated and with no criminal record; • They received a negative result on their molecular test. [ 30 ] Before going further, the Court must address certain elements of evidence. [ 31 ] Firstly, concerning the research done on the website, it is important to distinguish the steps taken by the defendants to learn about their legal obligations from the steps taken to comply with them.

Due diligence is assessed in terms of the fulfilment of a duty imposed by law and not just in terms of research into the existence of a prohibition or its

interpretation [20] . [ 32 ] Second, the argument relating to the lack of available space cannot succeed since the evidence offered is hearsay and is therefore inadmissible in evidence [21] .

The Court does also not give any credence to the evidence submitted by the defendants with respect to the lack of available space in the GAA. [ 33 ] Thirdly, the defendants emphasize, both in their testimony and in their pleadings, their good character, and the importance they afford to compliance with sanitary measures, due in part to their work and the impact that Covid-19 unfortunately had on a family member. [ 34 ] It is therefore peculiar to hear the defendants state they spent nearly 16 hours over a five-day period in the common game room of their apartment complex attempting to book a GAA when, at the same time, game rooms in residential buildings are closed in Quebec [22] . [ 35 ] Lastly, the defendants state that officer Savard should have helped them reserve a GAA.

In fact, they indicated in their testimony that when they left for the airport, they were hoping, knowing that they had not been able to book a GAA, that someone would do it for them. [ 36 ] On the one hand, responsibility to comply with a legal obligation remains always on the shoulders of the person to whom it applies.

On the other hand, even if they had spent several hours online reserving a GAA, the defendants should not expect an officer to make a reservation for them. [ 37 ] The Court must now determine whether the actions taken by the defendants, in the circumstances at the time of the events, constitute due diligence. [ 38 ] To comply with their legal obligations, the defendants indicate that they consulted a government website and repeatedly called the 1-800 number referred to, in order to reserve a GAA.

[ 39 ] With respect to the steps taken to avoid committing the offence, they indicate that they sought assistance from an officer once they arrived in Canada. [ 40 ] The Court finds that the defendants did not take reasonable measures to avoid the infraction but rather, took some measures to commit the infraction reasonably which cannot constitute due diligence [23] . [ 41 ] Even if we combine all the actions taken by the defendants, the Court is of the view that a reasonable person, in the same circumstances, would not have limited herself to calling a number several times without success and asking an officer for help once he arrived in Canada. [ 42 ] A reasonable person in the same circumstances would have sought other ways to comply with the law and would have been more proactive. [ 43 ] For example, the defendants could have chosen to return by land [24] to avoid the obligation to reserve a GAA, postpone their return to the country, take steps at the airport before boarding their plane or called hotels.

In short, a reasonable person would have been more proactive and would not have limited herself to the steps taken by the defendants. [ 44 ] But there is more. When deciding if the defendants met their burden to establish, on a balance of probability, that they took reasonable steps to avoid the infraction, the Court finds that the evidence submitted, as a whole, does not make the existence of the fact claimed more probable than its non-existence. [ 45 ] To that effect, the questions and inconsistencies highlighted in this judgment affect the credibility and reliability of the defendants’ testimony.

CONCLUSION [ 46 ] The evidence shows beyond reasonable doubt that the defendants did not comply with their legal obligation and the evidence presented by them do not establish, on a balance of probability, that they acted diligently. [ 47 ] Defendants must therefore be found guilty of the offence.

FOR ALL THESE REASONS, THE COURT: [ 48 ] FINDS Kristina-Maria Daskalopoulos guilty of the offence as laid in the file 500-61-550591-227; [ 49 ] FINDS Kyriakoula Vagalis guilty of the offence as laid in the file 500-61-550590-229. [ 50 ] SETS both files for April 4, 2023, in room 3.102 at 9:30 for submissions regarding the fine, fees and delay. __________________________________ Honourable Geneviève Claude Parayre Presiding Justice of the Peace Me François Russo Director of penal and criminal prosecution For the Prosecution Me Anamaria Natalia Manole For the defendants Hearing date: November 18, 2022