Mississauga (City) v. Hung, 2022 ONCJ 429

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 ofQuarantine 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, (SCC), [1999] S.C.J. No. 24 (S.C.C.). Egan v. Canada, (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, (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., (SCC), [1999] S.C.J. No. 23 (S.C.C.). Miron v. Trudel, (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), (NS SC), 129 N.S.R. (2d) 359 (N.S.S.C.).

R. v. Jorgenson, (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, (SCC), [1995] S.C.J. No. 70 (S.C.C.). R. v. Sault Ste. Marie (City), (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, (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: RegulationsAmending 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) a Air c Land Port of Entry (if land or marine) 2020 – 04 – 05 6 ​ c Marine Airport Name of airport (if other) a Toronto 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 a No ​ If no, do you have a valid registration at a Government-approved hotel? c Yes a No ​ If yes provide your booking reference number: -------------------------------------------------------------------------------------------------------------------------------------- ------------------------------ Final Quarantine Location Destination Type Destination Type Description (if other) c Home a Other 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 a dults 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 accom​modation 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 91 .

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 , … 11.

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 4. 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 , which sets out the legal 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 recei

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