r v. Canada, 2021 FC 621

Please note that following an erratum published in [2022] Volume 1,

Part 3, eight endnotes have been added to Spencer v. Canada (Health) , [2021] 3 F.C.R. 621 (F.C.) . Also, at paragraph 157, line 1 was modified slightly. The corrections have been brought to the present document. 2021 FC 621 T-340-21 Barbara Spencer, Sabry Belhouchet, Blain Gowing, Dennis Ward, Reid Nehring, Cindy Crane, Denise Thomson, Norman Thomson, Jordan Hammond, and Michel Lafontaine ( Applicants ) v. Canada (Minister of Health) and the Attorney General of Canada ( Respondents ) T-341-21 Dominic Colvin ( Applicant ) v.

The Attorney General of Canada ( Respondent ) T-366-21 Steven Duesing and Nicole Mathis ( Applicants ) v. The Attorney General of Canada ( Respondent ) T-480-21 Rebel News Network Ltd and Keean Bexte ( Applicants ) v. The Attorney General of Canada ( Respondent ) Indexed As: Spencer v. Canada (Health) Federal Court, Crampton C.J.—By videoconference, June 1–3; Ottawa, June 18, 2021.

Health and Welfare — Quarantine Act — Consolidated judicial reviews challenging measures imposed by federal government to prevent spread of COVID-19 by returning international air travelers — Non-exempt individuals required to be tested for COVID-19 upon arrival in Canada, stay at government approved accommodation (GAA) or designated quarantine facility (DQF) while awaiting results of test — Applicants asserting, inter alia, that Governor in Council (or Administrator in Council (AIC)) not having authority to impose impugned measures — Challenging certain provisions in Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (Order) issued by AIC pursuant to Quarantine Act , s. 58(1) , including list of isolation provisions — Impugned measures included in each of successors to Order — Applicants also maintaining GAA constituting arbitrary impediment — Whether Orders ultra vires authority delegated to Governor in Council under Quarantine Act , s. 58(1) — Orders containing impugned measures not ultra vires AIC — Dispute turning on whether AIC considered reasonable alternatives — Recitals to Order, other materials revealing AIC reached opinion that no reasonable alternatives to impugned measures available to prevent spread of COVID-19 — Recitals, Explanatory Notes providing reasonable basic justification for Order — Measures consistent with rationale, purview of s. 58(1) —— Applications dismissed.

Constitutional Law — Distribution of Powers — Consolidated judicial reviews challenging measures imposed by federal government to prevent spread of COVID-19 by returning international air travelers — Non-exempt individuals required to be tested for COVID-19 upon arrival, stay at government approved accommodation (GAA) or designated quarantine facility (DQF) while awaiting results of test — Applicants challenging certain provisions in Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (Order) issued by Governor in Council (or Administrator in Council (AIC)) pursuant to Quarantine Act , s. 58(1) , asserting that impugned measures infringing exclusive jurisdiction of provinces — Whether Orders ultra vires authority of federal government under Constitution Act, 1867, s. 91(11) — Measures consistent with rationale, purview of Quarantine Act , s. 58(1) — Essential character of Order not regulation of health per se, but rather reducing introduction, further spread of COVID-19 — That purpose consistent with Quarantine Act , falling within purview of Constitution Act, 1867, s. 91(11) — Applications dismissed.

Constitutional Law — Charter of Rights — Mobility Rights — Consolidated judicial reviews challenging measures imposed by federal

government to prevent spread of COVID-19 by returning international air travelers — Non-exempt individuals required to be tested for COVID-19 upon arrival, stay at government approved accommodation (GAA) or designated quarantine facility (DQF) while awaiting results of test — Applicants challenging certain provisions in Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (Order) issued by Governor in Council (or Administrator in Council (AIC)) pursuant to Quarantine Act , s. 58(1) — Applicants maintaining that requirement to stay at a GAA constituting arbitrary impediment to right of returning air travellers to freely enter Canada — Whether impugned measures violating Charter, s. 6(1) — Impugned measures not inconsistent with central thrust or purpose of s. 6(1) — Not encroaching upon returning air travellers’ membership in Canada’s national community — Travellers not denied entry to Canada — Simply required to briefly isolate within Canada — Applications dismissed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Consolidated judicial reviews challenging measures imposed by federal government to prevent spread of COVID-19 by returning international air travelers — Non-exempt individuals required to be tested for COVID-19 upon arrival, stay at government approved accommodation (GAA) or designated quarantine facility (DQF) while awaiting results of test — Applicants challenging certain provisions in Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (Order) issued by Governor in Council (or Administrator in Council (AIC)) pursuant to Quarantine Act , s. 58(1) — Whether impugned measures violating Charter, s. 7 right to liberty, security of person — Alleged violations not engaging applicants’ right to security of person — Evidence of risk, harm to applicants falling short of what is required to engage s. 7 — Requirement to stay at GAA engaging applicants’ liberty interests — Evidence establishing valid basis for imposing special requirements on returning air travellers — Rationales for specific requirement to quarantine providing requisite connection between objective of impugned measures, limits imposed on applicants’ right to liberty — Impugned measure not overbroad — Not violating principles of fundamental justice on grounds of gross disproportionality — Rational basis existing to test all asymptomatic air travellers, to require stay in GAA — Brief deprivation of liberty not so significant as to be disproportionate to objective, rationales underlying impugned measures — Applications dismissed.

Constitutional Law — Charter of Rights — Unreasonable Search or Seizure — Consolidated judicial reviews challenging measures imposed by federal government to prevent spread of COVID-19 by returning international air travelers — Non-exempt individuals required to be tested for COVID-19 upon arrival, stay at government approved accommodation (GAA) or designated quarantine facility (DQF) while awaiting results of test — Applicants challenging certain provisions in Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (Order) issued by Governor in Council (or Administrator in Council (AIC)) pursuant to Quarantine Act , s. 58(1) — Whether impugned measures violating Charter, s. 8 — Requirement to pay for GAA not engaging applicants’ interests under s. 8 — No reasonable expectation of privacy in money required to pay to book stay at GAA — Circumstances herein not constituting administrative or criminal investigation — Applications dismissed.

Constitutional Law — Charter of Rights — Arrest, Detention, Imprisonment — Consolidated judicial reviews challenging measures imposed by federal government to prevent spread of COVID-19 by returning international air travelers — Non-exempt individuals required to be tested for COVID-19 upon arrival, stay at government approved accommodation (GAA) or designated quarantine facility (DQF) while awaiting results of test — Applicants challenging certain provisions in Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (Order) issued by Governor in Council (or Administrator in Council (AIC)) pursuant to Quarantine Act , s. 58(1) — Whether impugned measures violating Charter ss. 9 , 10(b) , 11(d) ,(e), 12 — Impugned measures engaged applicants’ Charter, s. 9 rights — Requirement to stay in GAA for 24–72 hours constituting “detention” within meaning of s. 9 — However, such detention not arbitrary except with respect to applicant Nicole Mathis — Latter’s rights infringed because not informed of location to which she was being taken — That breach not saved under Charter, s. 1 — Applicants’ rights under s. 10(

b) engaged but not breached except with respect to Ms. Mathis— Ms. Mathis’ right to be informed of right to retain, instruct counsel, without delay, violated — That breach also not saved under Charter, s. 1 — Providing brochure to arriving air travellers not sufficient — Applicants’ rights under ss. 11(d),(

e) not breached — That provision not applying unless person charged with offence — Applicants’ rights under Charter, s. 12 also not breached — Impugned measures not constituting “punishment”, not arising as consequence of conviction — Even assuming that requirement to stay at GAA “treatment”, such “treatment” not “cruel and unusual” — Applications dismissed. These were consolidated applications for judicial review challenging measures imposed by the federal government to prevent the spread of COVID-19 by returning international air travelers.

The measures included requirements that non-exempt individuals be tested for COVID-19 upon their arrival in Canada (the Day 1 Test) and then stay at either a government approved accommodation (GAA) or a designated quarantine facility (DQF) for 24–72 hours while awaiting the results of that test. The applicants, international air travellers impacted by the impugned measures, asserted that the requirement to stay at a GAA or a DQF while awaiting the results of their Day 1 Test contravened various sections of the Canadian Charter of Rights and Freedoms .

They further asserted, inter alia , that the Governor in Council (in this context known as the Administrator in Council (AIC)) did not have the authority to impose the impugned measures, and that the impugned measures infringed the exclusive jurisdiction of the provinces. The applicants in Court file T-366-21 challenged certain provisions in the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (the January Order ) issued by the AIC pursuant to paragraph 58(1) (

d) of the Quarantine Act . As a result of the continued evolution of COVID-19, the AIC repealed and replaced the January Order with the February Order , which included certain new measures that were imposed on non-exempt returning air travellers. The applicants challenged, inter alia , measures contained in the February Order that included a list of isolation provisions applicable to air travellers who have reasonable grounds to suspect they have COVID-19. The February Order expired in April 2021.

However, the impugned measures have been included in each of the successors to the February Order , including the May Order that was in force at the time of these proceedings and was scheduled to expire in June 2021. The applicant in Court file T-341-21 maintained that the requirement to stay at a GAA constitutes an arbitrary impediment to the right of returning air travellers to freely enter Canada. All of the applicants alleged that the requirement to stay in a GAA pending receipt of the results of the Day 1 Test constitutes an infringement of their right to liberty and security of the person under

section 7 of the Charter . The main issues were: (1) whether the impugned measures violated any of subsection 6(1) , sections 7 , 8 , 9 , paragraphs 10(b) , 11(d) , 11(

e) or

section 12 of the Charter ; (2) if so, whether any such violation was demonstrably justified in a free and democratic society; (3) whether the Orders were ultra vires the authority delegated to the Governor in Council under subsection 58(1) of the Quarantine Act ; and (4) whether the Orders were ultra vires the authority of the federal government under subsection 91(11) of the Constitution Act ,

1867 . Held , the applications should be dismissed. The applicants failed to discharge their burden of demonstrating that the impugned measures violate subsection 6(1) of the Charter (the right to enter, remain in and leave Canada). The impugned measures are not inconsistent with the central thrust or purpose of subsection 6(1), which is against exile and banishment. Put differently, they do not encroach upon returning air travellers’ membership in Canada’s national community.

Air travellers are not denied entry when they land at one of the four airports where international flights currently are permitted to arrive. Rather, they are required to briefly quarantine or isolate within Canada. The fact that some travellers may voluntarily alter their preferred times of travel to avoid the operation of the impugned measures does not imply that those measures infringe travellers’ rights under subsection 6(1). The rights set forth in

Article 12 of the International Covenant on Civil and Political Rights are subject to restrictions that, among other things, are necessary to protect public health or the rights and freedoms of others. To the extent that the impugned measures constitute such restrictions, the mobility rights contemplated by

Article 12 are subject to them. The basis for treating air travellers differently from land travellers is not arbitrary. It is rooted in scientific data indicating that a higher percentage of asymptomatic returning air travellers test positive for COVID-19 than is the case for asymptomatic returning land travellers. The alleged violations did not engage the applicants’ right to security of the person pursuant to

section 7 of the Charter . The evidence of the physical risk faced by the applicants and the psychological harm that they experienced falls short of what is required to engage

section 7 . In the absence of any evidence that any air traveller has ever been infected at a GAA or a DQF, it is reasonable to infer that the risks of contracting COVID-19 at those facilities are not significant. The requirement to stay at a GAA or a DQF facility engaged the applicants’ liberty interests. The assessment of whether the infringement of the applicants’ liberty interest was in accordance with the principles of fundamental justice involved an assessment of whether the impugned measures were arbitrary, overbroad or had consequences that were grossly disproportionate to their object.

There was cogent evidence supporting the AIC’s decision to target returning air travellers with special measures, including the specific requirement to stay in a GAA or a DQF. The evidence established a valid basis for imposing special requirements on returning air travellers. What was relevant here was the objective of the impugned measures, not their actual effectiveness. All that was required to demonstrate that the impugned measures were not arbitrary was the existence of some link between them and the objective(

s) they were intended to achieve. The rationales for the specific requirement to quarantine in a GAA provided the requisite connection between the objective of the impugned measures and the limits imposed on the applicants’ right to liberty. It is not unreasonable to require those who voluntarily assume travel-related risks to pay for costs associated with their port-of-entry quarantine, especially when they incur those risks in the face of repeated government advisories to avoid non- essential travel. The impugned measures, particularly the requirement to stay at a GAA or a DQF, were not overbroad.

There is a rational connection between the objective of those measures and the effects on the individuals who the applicants suggest ought to have been exempted from those measures. The impugned measures did not violate the principles of fundamental justice on grounds of gross disproportionality. There is a rational basis to test all asymptomatic air travellers and to require that they stay in a GAA or a DQF while they await their Day 1 Test result. These measures are not out of sync with the objective of reducing the introduction and spread of COVID-19 into Canada.

In particular, the brief deprivation of liberty is not completely out of sync with this objective. It is not so significant as to be disproportionate, let alone grossly disproportionate, to the objective and the rationales underlying the impugned measures. The requirement to pay for a booking at a GAA did not engage the applicants’ interests under

section 8 of the Charter (the right to be secure against unreasonable search or seizure). Arriving air travellers have no reasonable expectation of privacy in the money they are required to pay in order to book a stay at a GAA. The circumstances in which air travellers are required to stay at a GAA or a DQF plainly do not constitute “an administrative or criminal investigation”. The impugned measures, particularly the requirement to stay at a GAA or a DQF, engaged the applicants’

section 9 rights (the right not to be arbitrarily detained or imprisoned) because they resulted in the detention of non-exempt persons arriving in Canada by air. However, with the exception of the applicant Nicole Mathis, the applicants’

section 9 rights were not contravened because their detention was not arbitrary. In contrast to persons who are routinely questioned and even physically searched at the border, air travellers are not permitted to proceed home that same day. Given the penal nature of the sanctions to which they are subject if they refuse to stay in a GAA, or if they refuse to comply with the physical restrictions at the GAA, a reasonable person in that situation would likely conclude that they were not “free to go.” Accordingly, the requirement to stay in a GAA or a DQF for 24–72 hours constitutes “detention” within the meaning of

section 9. However, such detention is not “arbitrary.” The various reasons for concluding that the restriction of the applicants’ liberty interests is not arbitrary also weighed in favour of concluding that their detention was not arbitrary. The manner in which the detention was carried out was reasonable. In the case of Ms. Mathis, her

section 9 rights were infringed because she was not informed of the location to which she was being taken. The breaches of her rights under

section 9 and paragraph 10(

b) of the Charter were not saved by

section 1 . Even considering the greater deference due to the government, those breaches could not be said to be demonstrably justified in a free and democratic society. The applicants’ rights under paragraph 10(

b) of the Charter (the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right) were engaged. The purpose of

section 10 of the Charter is to “ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay”. In these consolidated proceedings, only Ms. Mathis provided sufficient evidence that her right to be informed of her right to retain and instruct counsel, without delay , was violated. That breach was not saved under

section 1 of the Charter . The person detaining an individual must clearly communicate the right to retain and instruct counsel in a manner that it is readily understood, at the outset of the detention . Providing a long brochure to arriving air travellers that can reasonably be expected to be read at a later point in time is not sufficient. The applicants’ rights under paragraphs 11(

d) and (

e) of the Charter (the right to be presumed innocent until proven guilty and the right not to be denied reasonable bail without just cause) were not breached. That provision does not apply unless a person has been charged with an offence. Neither did the impugned measures violate the applicants’ rights under

section 12 of the Charter (the right not to be subjected to any cruel and unusual treatment or punishment). The impugned measures do not constitute “punishment”. One of the conjunctive requirements of the test for punishment is that it be “a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence”. This requirement clearly was not satisfied in the present context.

Even assuming that the requirement to stay at a GAA or a DQF upon arrival in Canada is a “treatment” contemplated by

section 12, such “treatment” does not rise to the very high threshold required to be considered “cruel and unusual”. The Orders containing the impugned measures were not ultra vires the AIC. The dispute between the parties as to whether the AIC acted beyond its authority in promulgating the impugned measures turned on whether the AIC considered the potential existence of reasonable alternatives and then reached the opinion that there were none.

The recitals to the February Order and other materials reveal that the AIC did in fact reach the opinion that no reasonable alternatives to the impugned measures were available to prevent the spread of COVID- 19. The Explanatory Notes, together with the recitals to the February Order , provided a reasonable basic justification for that Order. Those passages and recitals also confirmed that the measures contemplated by the Order are consistent with the rationale and purview of subsection 58(1) of the Quarantine Act .

The AIC has received delegated authority from Parliament pursuant to subsection 58(1) of the Quarantine Act . There is nothing in the text of subsection 91(11) of the Constitution Act , 1867 ( Quarantine and the Establishment and Maintenance of Marine Hospitals ) to suggest that the meaning of the word “Quarantine” should be limited to marine or ship quarantines. The plain and ordinary meaning of the words “Quarantine and” is that Parliament has been given jurisdiction over quarantine as well as the other matter mentioned, namely, the establishment and maintenance of marine hospitals.

The word “ship” does not appear in this head of power, and it is readily apparent that the word “maritime” qualifies only “hospitals”, and not also “quarantine.” The AIC’s purpose in enacting the February Order supports the view that the “pith and substance”, or the “essential character”, of that Order is not the regulation of health per se . Rather it is “reducing the introduction and further spread of COVID-19 and new variants of the virus into Canada by decreasing the risk of importing cases from outside the country”. That purpose is consistent with the Quarantine Act .

Preventing or reducing the introduction and spread of COVID-19 is an objective that falls squarely within the purview of subsection 91(11). It is axiomatic that the power to quarantine was conferred specifically for the purpose of preventing or reducing the introduction and spread of communicable diseases from outside the country.

To the extent that the overriding objective of subsection 91(11) may be said to be the prevention or reduction of the introduction and spread of diseases from abroad into Canada, it is entirely within the power of Parliament to legislate measures that apply to anyone entering Canada, even if they are only travelling a short distance after crossing the border. If it were otherwise, this important objective could be seriously undermined by even a single province or territory failing to act appropriately. The appropriate remedy to the violations of Ms. Mathis’ rights laid under subsection 24(1) of the Charter .

However, Ms. Mathis did not give notice of an intention to seek a remedy under that provision. It was therefore not appropriate to issue any remedy. STATUTES AND REGULATIONS CITED Canadian Bill of Rights , S.C. 1960, c. 44 [R.S.C., 1985, Appendix III], s. 1(a). Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 6, 7, 8, 9, 10(b), 11(d),(e), 12, 24(1), 33, 52. Constitution Act , 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91(11) , 92(7),(13),(16). Contraventions Act , S.C. 1992, c. 47 . Criminal Code , R.S.C., 1985, c. C-46, s. 503 . Federal Courts Act , R.S.C., 1985, c. F-7, s. 57(1) . Federal Court Rules , SOR/98-106, r. 317 . Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-11,

(2021) C. Gaz. I , 362, ss. 1.2(1)(a)(i), 4(1)(a),(2). Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-75,

(2021) C. Gaz. I , 673, ss. 1 “isolation”, “quarantine”, 1.2(1)(a),(b), 1.3, 3(1)(a),(1.3), 4(1),(2), 5, 6(1), 6.2, 7(1), 7.1(1), 7.2(1), 9, 10(1),(2), 11. Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-174,

(2021) C. Gaz. I , 1499. Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-313,

(2021) C. Gaz. I , 1925. Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-421,

(2021) C. Gaz. I , 2402. Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, ss. 20(1) (a), (2) (b). Quarantine Act , S.C. 2005, c. 20, ss. 4 , 58 . TREATIES AND OTHER INSTRUMENTS CITED International Covenant on Civil and Political Rights , December 16, 1966, [1976] Can. T.S. No. 47, Art. 12. CASES CITED APPLIED:

R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200; Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331;Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531; R. v. Le,2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Reference re Firearms Act (Can.),2000 SCC 31, [2000] 1 S.C.R. 783. DISTINGUISHED: R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541, (1987), 45 D.L.R. (4th) 235; Martineau v.

M.N.R., 2004 SCC 81,[2004] 3 S.C.R. 737. CONSIDERED: United States of America v. Cotroni; United States of America v. El Zein, (SCC), [1989] 1 S.C.R. 1469, (1989), 23Q.A.C. 182; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, (1985), 18 D.L.R. (4th) 321; New Brunswick(Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, (1999), 177 D.L.R. (4th) 124;Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165;Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708; R. v.

Hufsky, (SCC), [1988] 1 S.C.R. 621,(1988), 27 O.A.C. 103; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Therens, (SCC), [1985] 1 S.C.R. 613,(1985), 18 D.L.R. (4th) 655; R. v. Nagle, 2012 BCCA 373, 97 C.R. (6th) 346; R. c. Simmons, (SCC),[1988] 2 R.C.S. 495; Spencer v. Canada (Attorney General), 2021 FC 361, 490 C.R.R. (2d) 1; R. v. Suberu, 2009 SCC 33,[2009] 2 S.C.R. 460; MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, (1989), 61 D.L.R. (4th) 385; Alberta v.Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Nesathurai v.

Schuyler Farms Ltd., 2020 ONSC 4711 (Div.Ct.); Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; Schneider v. The Queen, (SCC), [1982] 2 S.C.R. 112, (1982), 139 D.L.R. (3d) 417; Taylor v. Newfoundland and Labrador, 2020 NLSC 125. REFERRED TO: Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518; Coldwater First Nation v. Canada (AttorneyGeneral), 2019 FCA 292; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294;Ernewein v.

General Motors of Canada Ltd., 2005 BCCA 540, 260 D.L.R. (4th) 488; Jones v. Zimmer GmbH, 2013 BCCA 21, 358D.L.R. (4th) 499; R. v. P. (A.) (1996), (ON CA), 109 C.C.C. (3d) 385, [1996] O.J. No. 2986 (QL), 1996 CarswellOnt3150 (C.A.); Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN) v.Canada (Attorney General), 2019 FCA 212, [2020] 1 F.C.R. 675; Taseko Mines Limited v. Canada (Environment), 2017 FC 1100, 15C.E.L.R. (4th) 53, affd 2019 FCA 320, 32 C.E.L.R. (4th) 18; Divito v.

Canada (Public Safety and Emergency Preparedness),2013 SCC 47, [2013] 3 S.C.R. 157; Smith v. Canada (Attorney General) (2000), 73 C.R.R. (2d) 196, [2000] F.C.J. No. 174 (QL), (F.C.A.), affd 2001 SCC 88 , [2001] 3 S.C.R. 902; Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, (1988), 73 Nfld. & P.E.I.R. 13; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; X (Re), 2017 FC 1047,[2018] 3 F.C.R. 111; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, (1996), 26 O.R. (3d) 536; R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, (1987), 38 D.L.R. (4th) 508; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; Canadian ConstitutionFoundation v. Canada (Attorney General), 2021 ONSC 2117, 488 C.R.R. (2d) 106; Ernst v. Alberta Energy Regulator, 2017 SCC 1,[2017] 1 S.C.R. 3; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2,[2012] 1 S.C.R. 5; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Reference re Greenhouse Gas Pollution PricingAct, 2021 SCC 11, 455 D.L.R. (4th) 1; R. v.

Morgentaler, (SCC), [1993] 3 S.C.R. 463, (1993), 125 N.S.R. (2d) 81;Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Rinfret v. Pope (1886), 10 L.N. 74,12 Q.L.R. 303 (Que. C.A.); Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; R. v. Jones (2006),81 O.R. (3d) 481, (Ont. C.A.). AUTHORS CITED: Health Canada. COVID-19 Testing and Screening Expert Advisory Panel. Priority strategies to optimize testing and quarantine atCanada’s borders, May 27, 2021. Hutchison, S. C., J. C. Morton and M. P.

Bury, Search and Seizure Law in Canada, loose-leaf ed., updated 2002. Toronto: Carswell,1993. Lederman, W. R. Continuing Canadian Constitutional Dilemmas: Essays on the Constitutional History, Public Law and Federal Systemof Canada, Toronto: Butterworths, 1981. APPLICATIONS for judicial review challenging measures imposed by the federal government to prevent the spread of COVID-19 byreturning international air travelers. Applications dismissed. APPEARANCES Sayeh Hassan and Henna Parmar for applicants in T-340-21 and T-366-21. Jeffrey R. W. Rath for applicant in T-341-21. Robert J.

Hawkes, QC and Sarah Miller for applicants in T-480-21. Sharlene Telles-Langdon, Sharon Stewart Guthrie and Robert Drummond for respondents in T-340-21, T-341-21, T-366-21 and T-480-21.

SOLICITORS OF RECORD Justice Centre for Constitutional Freedoms , Calgary, for applicants in T-340-21, and T-366-21. Rath & Company , Foothills, Alberta, for applicant in T-341-21. Jensen Shawa Solomon Duguid Hawkes LLP , Calgary, for applicants in T-480-21. Deputy Attorney General of Canada for respondents in T-340-21, T-341-21, T-366-21 and T-480-21. The following are the reasons for judgment rendered in English by Crampton C.J.: Table of Contents I. Introduction II. The Parties A. The Applicants III. COVID-19 IV. Relevant Orders, Legislation and Charter Provisions A. Relevant Orders

(1) Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-11

(2) Minimizing the Risk of Exposure to COVID-19 in Canada (Quarantine, Isolation and Other Obligations) , P.C. 2021-75

(3) Subsequent Orders B. Relevant Legislation C. Relevant Provisions of the Charter V. Evidentiary Issues A. Invocation of Cabinet Confidence B. The Respondent’s Affiants C. Media Reports & Academic Articles Tendered by the Applicants D. Report Issued on the Eve of the Hearing VI. Issues VII. Standard of Review VIII. Analysis A. Do the Impugned Measures Violate any of Subsection 6(1), sections 7, 8, 9, paragraphs 10(b), 11(d), 11(

e) or

section 12 of the Charter? (1) Subsection 6(1)

(2) Section 7 (

a) Security of the Person (

b) Right to Liberty (

i) Arbitrariness (ii) Overbreadth (iii) Gross Disproportionality (iv)

Section 7 – Conclusion (3) Section 8 (4)

Section 9

(

a) Applicable Legal Principles (

b) The Parties’ Submissions (

c) Analysis

(5) Paragraph 10(b)

(6) Paragraphs 11(

d) and (e)

(7) Section 12 B. If so, is any such Violation Demonstrably Justified in a Free and Democratic Society? C. Are the Orders Containing the Impugned Measures Ultra Vires the Authority Delegated to the Governor in Council under Subsection 58(1) of the Quarantine Act ? If not, are the Impugned Measures Nevertheless Unreasonable?

(1) Summary of the Applicants’ Submissions

(2) Summary of the Respondent’s Submissions

(3) Applicable Legal Principles

(4) Assessment (

a) Are the Impugned Measures Ultra Vires the Quarantine Act ? (

b) Are the Impugned Measures Reasonable? D. Are the Orders Containing the Impugned Measures Ultra Vires the Authority of the Federal Government under Subsection 91(11) of the Constitution Act, 1867 ?

(1) The RNN Applicants’ Submissions

(2) The Respondent’s Submissions

(3) Applicable Legal Principles

(4) Analysis E. Do the Impugned Measures Violate Paragraph 1(

a) of the Canadian Bill of Rights ? F. Conclusion Appendix 1 – Relevant Legislation I. Introduction [Back to table of contents ] [ 1 ] The COVID-19 pandemic has wrought much death and suffering in Canada and abroad. This has called for extraordinary measures from our governments as well as great sacrifices by one and all. [ 2 ] Protecting us from the threat to our health and security is one of the most fundamental responsibilities of a state.

However, it must do so within the bounds of law. [ 3 ] At their core, the questions at issue in these consolidated applications go to whether certain measures that have been imposed by the federal government on returning international air travellers are lawful. Those measures include requirements that non-exempt individuals be tested for COVID-19 upon their arrival in Canada (the Day 1 Test) and then stay at either a government approved accommodation (GAA) or a designated quarantine facility (DQF) for 24–72 hours while they await the results of that test.

Persons who are asymptomatic upon their arrival are required to stay at a GAA, while those who display symptoms are required to stay at a DQF. Persons who stay at a GAA must do so at their own cost, which can exceed $1,000. Failure to abide by these and related requirements is subject to a fine of several thousand dollars under the Contraventions Act , S.C. 1992, c. 47 ( Contraventions Act ).

A failure to comply with the Quarantine Act , S.C. 2005, c. 20 (the Quarantine Act ) could lead up to three years in prison and/or $1,000,000 in fines. [ 4 ] Upon receiving the results of their Day 1 Test, travellers who have stayed at a GAA or a DQF are directed to “quarantine” or to “isolate” for the remainder of their first 14 days back in Canada. They may do so at their home or other “suitable place of quarantine.” Those who test negative must quarantine in accordance with their quarantine plan, whereas those who test positive must isolate in accordance with an isolation plan.

However, those who do not have a “suitable” quarantine or isolation plan, as the case may be, are required to isolate at a DQF. It is also possible to voluntarily choose to take that route. [ 5 ] The applicants in these consolidated proceedings assert that the requirement to stay at a GAA or a DQF while they await the results of their Day 1 Test contravenes various sections of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter ). They maintain that the alleged benefits associated with this requirement and other impugned measures are not demonstrably justified in a free and democratic society, as contemplated by

section 1 of the Charter . This is in part because those benefits are not proportionate to the adverse impacts associated with the alleged violations of their Charter rights. In support of this submission, the applicants note that non-

exempt international travellers who enter Canada by land are not subject to the impugned measures. Instead, they are given COVID-19 test kits to administer at their suitable place of quarantine or isolation. At the time the measures came into force, approximately 75 percent of all travellers arriving in Canada were exempted from the impugned measures. [ 6 ] The applicants in Court file T-480-21 further assert that the Governor in Council (in this context known as the Administrator in Council (AIC)) did not have the authority to impose the impugned measures.

This is because reasonable alternatives to prevent the introduction and spread of COVID-19 were and continue to be available. Accordingly, the requirement in paragraph 58(1) (

d) of the Quarantine Act that no such alternatives be available was not satisfied. Those applicants further assert that the impugned measures infringe the exclusive jurisdiction of the provinces and are therefore beyond the authority of the federal government. Finally, those applicants submit that certain of the impugned measures contravene paragraph 1 (

a) of the Canadian Bill of Rights , S.C. 1960, c. 44 [R.S.C., 1985, Appendix III] (Bill of Rights). [ 7 ] For the reasons that follow, and with two limited exceptions pertaining to the manner in which the impugned measures were implemented in relation to the applicant Nicole Mathis, I have concluded that the impugned measures do not contravene the Charter , as alleged by the applicants. Accordingly, it is not necessary to conduct the analysis contemplated by

section 1 of the Charter , except in respect of the two above-noted exceptions. [ 8 ] Those two exceptions pertained to Ms. Mathis’ rights under

section 9 and paragraph 10(

b) of the Charter . In particular, they concern (

i) the refusal of border control officials to disclose to Ms. Mathis and her spouse the location of the DQF to which she was being taken, and (ii) the fact that she was not properly informed of her right to retain and instruct counsel without delay. Those violations of Ms. Mathis’ rights cannot be demonstrably justified in a free and democratic society. The evidence establishes that the first of those violations has since been remedied by the requirement that travellers who are required to stay in a GAA must book their own reservation there. Therefore, they will know the location of the GAA hotel.

Moreover, travellers who are required to stay in a DQF are provided with the relevant details pertaining to that facility. As to the second exception, border control officials will now be aware that they must clearly communicate the right to retain and instruct counsel in a manner that is readily understood, at the outset of the detention . [ 9 ] I have also concluded that the impugned measures were within the authority of the AIC and were within the jurisdiction of the federal government. Finally, the impugned measures do not contravene paragraph 1(

a) of the Bill of Rights. Accordingly, these applications will be dismissed. [ 10 ] Given that the impugned measures are currently scheduled to expire on Monday, June 21, 2021, I am releasing this decision today solely in English. The French version will be released at the earliest possible time. I recognize that paragraph 20(1) (

a) of the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31 provides that any final decision issued by a federal court shall be made available simultaneously in both official languages where it determines a question of law of general public interest or importance. However, pursuant to paragraph 20(2)(

b) of that legislation, where the court is of the opinion that making a decision available simultaneously in both official languages would result in a delay prejudicial to the public interest, it shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective.

Having regard to the pending expiry of the impugned measures, I am of the opinion that delaying the release of this judgment (and reasons) until they are available in both official languages would occasion a delay prejudicial to the public interest. I am therefore releasing the decision immediately in English and then in French at the earliest possible time. II. The Parties [Back to table of contents ] A. The Applicants [Back to table of contents ] [ 11 ] Rebel News Networks (RNN) is an independent news media outlet with its head offices in Toronto, Ontario.

Some of its journalists regularly travel to the United States to report on current events and political issues. One of those journalists, the applicant Keean Bexte, was required to stay at a GAA upon his return to Canada on February 28, 2021. Collectively, RNN and Mr. Bexte, who are the applicants in Court file T-480-21, will be referred to as the “RNN applicants”. [ 12 ] In its written submissions, the respondent stated that it does not accept that RNN has standing to challenge the impugned measures. However, in its oral submissions the respondent noted that it did not bring a motion to challenge RNN’s standing.

The respondent also agreed that, as a practical matter, nothing turns on the issue of RNN’s standing because its counsel confirmed during the hearing that all of the submissions that were made on behalf of RNN were also being made on behalf of Mr. Bexte. Accordingly, as requested by the respondent, I will refrain from making a ruling on whether RNN has standing in these proceedings. [ 13 ] The other applicants are all international air travellers who have been impacted by the impugned measures. The eleven applicants in Court files T-340-21 and T-366-21 will be referred to as the “Spencer-Duesing applicants”. Mr.

Colvin is the sole applicant in Court file T-341-21. [ 14 ] Apart from Barbara Spencer and Cindy Crane, who are concerned about the prospect of having to quarantine at a GAA, the applicants have all returned to Canada. [ 15 ] At the time of their applications, the other applicants shared those concerns. Indeed, Ms. Thomson stated that she experienced fear and anxiety about the prospect of having to stay at a GAA. As a result, she returned to Canada two days prior to the entry into force of the GAA requirement in February. Ms.

Thompson added that even after her return, she continued to experience stress about the prospect of her spouse having to stay at a GAA upon his return to the country. [ 16 ] With the exception of Mr. Bexte and the individuals mentioned immediately below, there is no evidence that any of the applicants ultimately stayed at a GAA or a DQF upon their arrival back in Canada. [ 17 ] Mr. Duesing and Ms. Mathis were detained and transferred to a “federal facility” in January of this year, pursuant to provisions of an order that expired in February.

As described below, those provisions have continued to appear in subsequent orders that have been promulgated.

[ 18 ] According to his counsel, Mr. Colvin was fined $3,000 “in lieu of an airport quarantine” upon his return to Canada in April. His counsel maintains that the determinations made on his application “are going to be germane to the defence of [that fine].” III. COVID-19 [Back to table of contents ] [ 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. [ 20 ] 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. [ 21 ] 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. [ 22 ] 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. [ 23 ] 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. [ 24 ] 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. [ 25 ] 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). [ 26 ] 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. [ 27 ] 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. IV. Relevant Orders, Legislation and Charter Provisions [Back to table of contents ] A. Relevant Orders [Back to table of contents ]

(1) Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-11 [1] [Back to table of contents ] [ 28 ] Mr. Duesing and Ms. Mathis, the applicants in Court file T-366-21, challenge certain provisions in the January Order , dated January 20, 2021 [P.C. 2021-11, (2021), C. Gaz. I , 362] and issued by the AIC pursuant to paragraph 58(1) (

d) of the Quarantine Act . Under the authority of paragraph 4(1)(

a) and subsection 4(2) of that Order, Mr. Duesing and Ms. Mathis were required to quarantine in a DQF for three nights upon their return to Canada later that month. This is because they did not demonstrate that they had either a negative result for a COVID-19 molecular test taken within 72 hours of their scheduled departure for Canada, or a positive test that had been performed between 14 and 90 days prior to that time, as required by subparagraph 1.2(1)(a)(

i) of the Order. They simply had a pre- departure antigen test result. The full text of the above-mentioned provisions of the January Order is provided at Appendix 1 to these reasons. The requirement to obtain a pre-departure test is not contested in these applications. [ 29 ] The January Order was repealed on February 14, 2021. However, the respondent explained during the hearing of these applications that it did not bring a motion to strike the application brought by Mr. Duesing and Ms. Mathis on the grounds of mootness because the above-described provisions have been included in each of the successors to the January Order , including the Order that is currently in force.

(2) Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) , P.C. 2021-75 [2] [Back to table of contents ] [ 30 ] As a result of the continued evolution of COVID-19 the AIC repealed and replaced the January Order with the February Order on February 14, 2021 [ Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations , P.C. 2021-75,

(2021) C. Gaz. I , 673]. The February Order was subsequently amended on February 21, 2021. [3]

[ 31 ] The new measures in the February Order included a requirement, applicable to all non-exempt travellers returning by air or land, to undergo molecular testing at the time of their entry to Canada—i.e. the Day 1 Test—and once again later in the 14-day post-entry period, while they are in quarantine. The applicants do not challenge that particular measure, or the prohibition on symptomatic people taking public transit. [ 32 ] However, the applicants challenge certain new measures that were imposed on non-exempt returning air travellers, including the following: [4] i.

A requirement to stay, at their own expense, at a GAA for up to 72 hours while awaiting the result of their Day 1 Test (paragraph 3(1)(

a) and subsection 3(1.3)); ii. A requirement to submit evidence electronically that they pre-booked and prepaid for that GAA (subparagraph 1.2(1)(a)(iii)); iii. A requirement to provide the evidence described immediately above upon their entry into Canada (clause 1.2(1)(a)(ii)(B)); iv. A requirement to retain that evidence for 14 days following their return to Canada (paragraph 1.2(1)(b)); v.

A requirement to include, in their quarantine plan, the address of the GAA where they plan to stay while they await the results of their Day 1 Test, as well as certain unspecified additional information applicable only to air travellers (subparagraph 1.3(a)(ii)); vi. A requirement for travellers who are not eligible to stay in a GAA to quarantine at a DQF (subsections 4(1), 4(2) and 10(2)). [ 33 ] Like Mr. Duesing and Ms.

Mathis, the other applicants in these consolidated proceedings also challenge the requirement to provide pre-boarding evidence that they received either a negative result for a COVID-19 molecular test taken within 72 hours of their scheduled departure for Canada, or a positive test that had been performed between 14 and 90 days prior to that time. As with the January Order , that provision was contained in paragraph 1.2(1) (

a) of the February Order . The related provisions requiring a person who fails to provide that evidence to stay in a DQF were contained in subsections 4(1) and 4(2). [ 34 ] In addition, the Spencer-Duesing applicants challenge sections 5 and 11 of the February Order , which contains a list of factors to be considered in choosing a quarantine facility for the purposes of subsections 4(2) and 10(2). Those applicants also challenge

section 9, which contains a list of isolation provisions applicable to air travellers who have reasonable grounds to suspect they have COVID-19, have signs and symptoms of COVID-19 or knows that they have COVID-19. Those provisions also apply to every person who travelled with such an air traveller. [ 35 ] Finally, the Spencer-Duesing applicants challenge the provisions in subsection 10(1) of the February Order , which apply to persons who are considered to be unable to isolate themselves. [ 36 ] The February Order expired on April 21, 2021.

However, it appears to be common ground between the parties that the applications have not thereby been rendered moot. This is because the above-described provisions (the Impugned Measures) have been included in each of the successors to the February Order , including the Order that is currently in force.

(3) Subsequent Orders [Back to table of contents ] [ 37 ] The AIC repealed and replaced the February Order with an identically named Order (P.C. 2021-174 [

(2021) C. Gaz. I , 1499]) on March 19, 2021. It then repealed and replaced the March Order with P.C. 2021-313 [

(2021) C. Gaz. I , 1925], on April 21, 2021. Although the March and April orders were somewhat reorganized, the Impugned Measures continued to be included, albeit in differently numbered sections. [ 38 ] P.C. 2021-313 was then repealed and replaced by P.C. 2021-421 [

(2021) C. Gaz. I , 2402], an identically named Order, on May 21, 2021. Once again, that Order continues to contain the Impugned Measures. The May Order is scheduled to expire on June 21, 2021. B. Relevant Legislation [Back to table of contents ] [ 39 ] The orders described above were made by the Governor in Council pursuant to

section 58 of the Quarantine Act . That provision states as follows: 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. [ 40 ] Mr. Bexte submits that the requirement for returning air travellers to pay for their stay at a GAA constituted a deprivation of his property rights under paragraph 1(

a) of the Bill of Rights. That provision states: Recognition and declaration of rights and freedoms

1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason ofrace, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (

a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereofexcept by due process of law; [41] The Spencer-Duesing applicants maintain that some or all of the above-mentioned “travel restrictions” are contrary to section503 of Criminal Code, R.S.C., 1985, c. C-46 (Criminal Code), which imposes certain obligations upon “a peace officer who arrests aperson with or without a warrant.” C. Relevant Provisions of the Charter [Back to table of contents] [42] All of the applicants maintain that the Impugned Measures violate sections 7 and 9 of the Charter.

Section 7 enshrines the right tolife, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamentaljustice.

Section 9 provides the right not to be arbitrarily detained or imprisoned. [43] Mr. Colvin and the Spencer-Duesing applicants also maintain that the Impugned Measures violate subsection 6(1) of the Charter,which provides that every citizen of Canada has the right to enter, remain in and leave Canada. [44] The RNN applicants further assert that the Impugned Measures violate

section 8 of the Charter, which provides that everyone hasthe right to be secure against unreasonable search or seizure. [45] Finally, the Spencer-Duesing applicants submit that the Impugned Measures violate paragraphs 10(b), 11(d), 11(

e) and section12 of the Charter. Paragraph 10(

b) provides that everyone has the right on arrest or detention to retain and instruct counsel without delayand to be informed of that right. Paragraph 11(

d) stipulates that any person charged with an offence has the right to be presumed innocentuntil proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Paragraph 11(

e) provides suchpersons with the right not to be denied reasonable bail without just cause. Finally,

section 12 states that everyone has the right not to besubjected to any cruel and unusual treatment or punishment. [46] Each of the above-mentioned Charter provisions is reproduced in Appendix 1 to these reasons. V. Evidentiary Issues [Back to table of contents] A. Invocation of Cabinet Confidence [Back to table of contents] [47] Pursuant to rule 317 of the Federal Court Rules, SOR/98-106, Mr. Colvin requested the record of materials that were before theAIC when it made the February Order. He also requested copies of any non-privileged communications pertaining to any element of thatOrder. In response, Ms.

Julie Adair, Assistant Clerk of the Privy Council, invoked Cabinet confidence on behalf of the AIC. [48] Mr. Colvin requests that an adverse inference be drawn from this refusal to provide the requested materials. He adds thatalthough the respondent is entitled to claim Cabinet confidence over those materials, proceeding in such a manner is procedurally unfairand also precludes the respondent from being able to justify the alleged infringements of the Charter, pursuant to

section 1 and the testestablished in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200 (Oakes). [49] I disagree. The promulgation of subordinate legislation is a legislative act which does not attract the duty of procedural fairness:Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518 (CUPE), at paragraphs 157–158 and 163. In theabsence of any assertion or evidence that the assertion of Cabinet confidence was improper, no adverse inference should be drawn:CUPE, above, at paragraphs 142 and 181. With respect to

section 1 of the Charter, there are other ways in which the respondent canattempt to discharge its burden, if breaches of other sections of the Charter are established. B. The Respondent’s Affiants [Back to table of contents] [50] In support of its response to the applicants, the respondent adduced affidavits from the following four senior governmentofficials: (

i) Kimby Barton is the Director General of the Centre for Biosecurity with PHAC. She is primarily responsible for developing andimplementing border control measures to prevent the spread of infectious diseases into Canada. She was identified as being PHAC’scontact person in the Explanatory Note that accompanied each of the January Order, the February Order and its successors. (ii) Dr.

Guillaume Poliquin is the Acting Scientific Director General of the National Microbiology Laboratory (NML) within PHAC.He is primarily responsible for the research portfolio on vaccines and emerging pathogenic agents, including SARS-CoV-1. He leads ateam of scientists responsible for supporting diagnostic screening in Canada, conducting research on SARS-CoV-2, creating models topredict the evolution of the pandemic, and managing the gathering of data to provide guidance on public health planning.

He is alsoresponsible for providing advice to support the Government of Canada in making decisions with respect to public health measures to beadopted to fight the COVID-19 pandemic and Canada’s vaccination program, particularly regarding the scientific and clinical aspects ofthe pandemic. (iii) Dr. Rachel Rodin is the Acting Director General of the Testing Directorate in the Infectious Disease Prevention and Control Branchof PHAC, which establishes pilot programs and testing initiatives.

During the regular course of her duties from April 2, 2020, to the dateof her affidavit, she provided advice on the provision of COVID-19 tests at the population level. (iv) Michael Spowart is the Regional Director, Western Region (British Columbia and Alberta), with PHAC. He leads a multi-disciplinary team of public health professionals responsible for managing frontline operations for a range of health promotion, diseaseprevention, and health protection programs. Over the past year, he has almost exclusively focused on operationalizing elements of the

Pandemic Emergency Preparedness and Response. In that role, he is responsible for the operationalization of border measures at theports of entry in British Columbia and Alberta. He also regularly participates in, or is briefed on, nation-wide meetings on the operationof DQFs and GAAs. [51] During the hearing of these applications, counsel to the respondent explained that, through inadvertence, none of the above-mentioned affiants were qualified as an expert witness or requested to sign the experts’ certificate in Form 52.2.

As a consequence, therespondent appears to concede to the applicants’ position that its affiants ought not to be treated as experts. [52] Nevertheless, the respondent maintains that government affiants who occupy elevated positions and have significant oversightwithin their departments or agencies have sufficient personal knowledge to testify first-hand about the conduct, activities and events inand around their departments or agencies. [53] I agree. This is particularly so in a complex and highly expedited judicial review proceeding (Coldwater First Nation v.

Canada(Attorney General), 2019 FCA 292 (Coldwater), at paragraphs 46 and 58), and where the evidence concerns the basis for actions takenand advice provided by the affiants and those with whom they were closely working, as opposed to the “truth of the contents” of theinformation upon which they relied. [54] Given the seniority of each of Ms. Barton, Dr. Poliquin, Dr. Rodin and Mr.

Spowart, they are entitled to testify regarding thefacts of which they have firsthand knowledge, the basis upon which decisions within their department or branch were taken and the basisupon which those departments or branches provided advice to the Government of Canada. Of course, to the extent that I have anyconcerns regarding the reliability of that testimony, that will be reflected in the weight accorded to the evidence. [55] Some of the applicants maintained that the respondent’s affiants provided selective information, were highly argumentative andwere generally not impartial. I disagree.

Upon reviewing their affidavits and the transcripts of their cross-examinations by counsel to theRNN applicants, the Spencer-Duesing applicants and Mr. Colvin, respectively, I find that those affiants were straightforward, frank,succinct and generally credible. Unless otherwise indicated, I have no concerns regarding their testimony. C. Media Reports & Academic Articles Tendered by the Applicants [Back to table of contents] [56] The respondent submits that certain media reports relied upon by the applicants are inadmissible. I agree.

To the extent that thesemedia reports are being relied upon for the truth of their contents, they are inadmissible under the general rule excluding hearsayevidence: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 0 F.C.R. 000, at paragraph150. [57] I also agree with the respondent that, as with academic articles attached to affidavits filed by the respondent’s affiants, sucharticles attached to the applicants’ affidavits cannot be relied upon as proof of the facts contained therein: Ernewein v.

General Motors ofCanada Ltd., 2005 BCCA 540, 260 D.L.R. (4th) 488, at paragraph 41; Jones v. Zimmer GmbH, 2013 BCCA 21, 358 D.L.R. (4th) 499, atparagraphs 45–47. This stands in contrast to several other documents adduced by the various affiants, which benefit from the publicdocument exception to the hearsay rule and can therefore be admitted as evidence of the truth of their content: R. v. P. (A.) (1996), (ON CA), 109 C.C.C. (3d) 385, [1996] O.J. No. 2986 (QL), 1996 CarswellOnt 3150 (C.A.), at paragraphs 14–15.

As theadmissibility of these public documents is not contested, I will not dwell on this matter. [58] Based on the foregoing, the following exhibits are inadmissible: (

i) Exhibit A to the affidavit filed by Ms. Crane (the Crane Affidavit); (ii) Exhibit A to the affidavit filed by Ms. Spencer (the Spencer Affidavit); and (iii) Exhibits B, H and I to the affidavit filed by Mr. Levant (the Levant Affidavit). [59] Likewise, the following passages of affidavits that reiterate the contents of media reports are inadmissible: (

i) Crane Affidavit, at paragraph 10, first sentence and second clause of third sentence; (ii) Spencer Affidavit, at paragraph 14, first sentence and second clause of third sentence; (iii) Levant Affidavit, at paragraph 14, second sentence, and paragraph 37; (iv) Affidavit filed by Ms. Thomson, at paragraph 10, sixth sentence; and (

v) Affidavit filed by Mr. Thomson, at paragraph 9, first sentence. [60] Nothing turns on this, as the conclusions I have reached on the issues raised in these applications would not be altered even if Iwere to admit the above-mentioned evidence and materials. This is because I would not have given that evidence and those materialssignificant weight. D.

Report Issued on the Eve of the Hearing [Back to table of contents] [61] On May 29, 2021, the Spencer-Duesing applicants brought a motion seeking leave to serve and file a report entitled Prioritystrategies to optimize testing and quarantine at Canada’s borders (the May Report). That report was issued on May 27, 2021, by thefederal government’s COVID-19 Testing and Screening Expert Advisory Panel.

Among other things, the panel recommended replacingthe requirement to quarantine at a GAA or a DQF with a stronger focus on adherence to quarantine in travellers’ households or othersuitable places of quarantine: May Report, at pages 9–10 and 15. That recommendation was based on the fact that the current approach tomandatory hotel quarantine is not applied equally to land and air travellers, is expensive to administer, provides opportunities fortravellers to bypass by paying a fine, and is inconsistent with the incubation period of the virus.

[62] During the hearing the Spencer-Duesing applicants explained that they sought to introduce the May Report solely for thepurposes of their submissions in relation to

section 1 of the Charter. Given the respondent’s consent to the document being admitted forthis limited purpose, I granted the motion. VI. Issues [Back to table of contents] [63] The parties appear to agree on the issues raised in these consolidated applications, although they have articulated them somewhatdifferently. In my view, the issues are best expressed as follows: 1. Do the Impugned Measures violate any of subsection 6(1), sections 7, 8, 9, paragraphs 10(b), 11(d), 11(

e) or

section 12 of theCharter? 2. If so, is any such violation demonstrably justified in a free and democratic society? 3. Are the Orders containing the Impugned Measures ultra vires the authority delegated to the Governor in Council under subsection58(1) of the Quarantine Act? If not, are the Impugned Measures nevertheless unreasonable? 4. Are the Orders containing the Impugned Measures ultra vires the authority of the federal government under subsection 91(11) of theConstitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5] (Constitution Act, 1867)? 5. Do the Impugned Measures violate paragraph 1(

a) of the Bill of Rights? 6. What, if any, remedies are appropriate? VII. Standard of Review [Back to table of contents] [64] The standard applicable to the Court’s review of the issues that have been raised with respect to the Charter, the Constitution Act,1867 and the Canadian Bill of Rights is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019]4 S.C.R. 653 (Vavilov), at paragraphs 53, 55 and 69; Union of Canadian Correctional Officers – Syndicat des agents correctionnels duCanada – CSN (UCCO-SACC-CSN) v.

Canada (Attorney General), 2019 FCA 212, [2020] 1 F.C.R. 675, at paragraphs 17 and 21;Taseko Mines Limited v. Canada (Environment), 2017 FC 1100, 15 C.E.L.R. (4th) 53, at paragraphs 49 and 54, affd 2019 FCA 320, 32C.E.L.R. (4th) 18, at paragraphs 19 and 22. [65] In reviewing whether the Impugned Measures are ultra vires the authority delegated to the AIC under subsection 58(1) of theQuarantine Act, the applicable standard is reasonableness: Vavilov, above, at paragraphs 65–68 and 109. This standard also applies inassessing whether the Impugned Measures are reasonable.

I will address the principles applicable in assessing reasonableness in PartVIII.C. of these reasons below. VIII. Analysis [Back to table of contents] A. Do the Impugned Measures Violate any of Subsection 6(1), sections 7, 8, 9, paragraphs 10(b), 11(d), 11(

e) or

section 12 of theCharter? [Back to table of contents] (1) Subsection 6(1) [Back to table of contents] [66] Subsection 6(1) of the Charter states: “Every citizen of Canada has the right to enter, remain in and leave Canada.” [67] Mr. Colvin maintains that the requirement to stay at a GAA constitutes an arbitrary impediment to the right of returning airtravellers to freely enter Canada.

He acknowledges that there may at times be a pressing need to detain or hold an individual at the borderbased on “suspicions of criminal activity, improper credentials, questionable purposes of entry, or even suspicions of communicabledisease.” However, he asserts that no such need exists for persons such as himself, who have not been infected with COVID-19, have nothad any contact with anyone infected with the virus, have tested negative prior to departing for Canada, and possess the means and abilityto self-quarantine for 14 days at home. [68] I disagree. [69] I recognize that an expansive approach to subsection 6(1) is consistent with the fact that it is exempt from the legislative overridein

section 33 of the Charter and is not subject to any limitations, such as those set forth in subsections 6(3) and 6(4): Divito v. Canada(Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157 (Divito), at paragraph 28. I further recognize that“rights under the Charter must be interpreted generously so as to fulfill its purpose of securing for the individual the full benefit of theCharter’s protections”: United States of America v. Cotroni; United States of America v. El Zein, (SCC), [1989] 1S.C.R. 1469, (1989), 23 Q.A.C. 182 (Cotroni), at page 1480.

At the same time, “it is important not to overshoot the actual purpose of theright or freedom in question”: R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, (1985), 18 D.L.R. (4th) 321, atpage 344. [70] In Cotroni, above, at page 1482, the Supreme Court of Canada held that “the central thrust of s. 6(1) is against exile andbanishment, the purpose of which is the exclusion of membership in the national community.” [71] The Impugned Measures are not in any way inconsistent with this central thrust or purpose.

Put differently, they do not encroachupon returning air travellers’ membership in Canada’s national community. Those travellers are not denied entry to Canada when theyland at one of the four airports where international flights currently are permitted to arrive. Rather, they are required to briefly quarantineor isolate within Canada. Although the specific location in which they must isolate is different from where returning land travellers mayisolate, it is still within Canada.

[72] The Spencer-Duesing applicants maintain that the essence of the rights afforded under subsection 6(1) of the Charter is “theability for Canadians to move in and out of the country based on their own choice.

The [Impugned Measures] have taken this choiceaway from Canadians, as the decisions of Canadians to travel or not and when to travel has been informed by [those measures].” In thisregard, the Spencer-Duesing applicants rely on the following passage of Justice Wilson’s dissenting reasons in Cotroni, above, at pages1504–1505: … it is my view that s. 6(1) of the Charter was designed to protect a Canadian citizen’s freedom of movement in and out of the countryaccording to his own choice.

He may come and go as he pleases …. [T]he right protected focuses on the liberty of a Canadian citizen tochoose of his own volition whether he would like to enter, remain in or leave Canada. [Emphasis added.] [73] However, this position has not been endorsed by a majority of the Supreme Court of Canada in any subsequent decision. [74] In my view, the fact that some travellers may voluntarily alter their preferred times of travel to avoid the operation of theImpugned Measures does not imply that those measures infringe travellers’ rights under subsection 6(1).

One potential impact of validlyenacted legislation, such as pertaining to income tax or employment insurance benefits, may be that it influences people’s choicesregarding when to travel. That does not bring such legislation into conflict with subsection 6(1): Smith v. Canada (Attorney General)(2000), 73 C.R.R. (2d) 196, [2000] F.C.J. No. 174 (QL), (F.C.A.), affd 2001 SCC 88 , [2001] 3 S.C.R. 902,at paragraph 3. [75] The Spencer-Duesing applicants further maintain that subsection 6(1) should be interpreted with regard to

Article 12 of theInternational Covenant on Civil and Political Rights, December 16, 1966, [1976] Can. T.S. No. 47 (ICCPR). I agree: Divito, above, atparagraph 25. However,

Article 12 does not assist them.

Article 12 states as follows:

Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom tochoose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protectnational security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with theother rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. [Emphasis added.] [76] As reflected in the highlighted passage of

Article 12, paragraph 3 above, the rights set forth in

Article 12 are subject torestrictions that, among other things, are necessary to protect public health or the rights and freedoms of others. To the extent that theImpugned Measures constitute such restrictions, the mobility rights contemplated by

Article 12 are subject to them. The authority of theAIC to promulgate those measures is further discussed in

part VIII.C of these reasons below. [77] With respect to

Article 12, paragraph 4 of the ICCPR, I do not accept Mr. Colvin’s assertion that the Impugned Measures arearbitrary because they indiscriminately target every air traveller. I am very sympathetic to Mr. Colvin’s evident sense of aggrievement atbeing treated differently from returning land travellers. However, the basis for treating air travellers differently from land travellers is notarbitrary.

It is rooted in scientific data, which I accept, indicating that a higher percentage of asymptomatic returning air travellers (1.7percent) test positive for COVID-19 than is the case for asymptomatic returning land travellers (0.3 percent): transcript of the cross-examination of Ms. Kimby Barton, conducted April 16, 2021 (Barton Transcript), at page 26, lines 7–12; transcript of the cross-examination of Dr. Rachel Rodin, conducted April 15, 2021 (Rodin Transcript), at page 37, lines 4–8. [78] Mr.

Colvin also submits that the Impugned Measures infringe the right to enter Canada because returning air travellers can onlyavail themselves of that right if they subject themselves to a violation of their rights in

section 7 of the Charter. In this regard, hemaintains that the threat of being arbitrarily detained at a GAA violates subsection 6(1) in the same way that deportation from Canada toa country where one would face torture or the death penalty violates

section 7. [79] I will address in the next

section below the allegation that the Impugned Measures violate

section 7. For now, I will confinemyself to rejecting the analogy made between the Impugned Measures and deportation to a country where one would face torture or thedeath penalty. [80] In

summary, for the reasons set forth above, the applicants have failed to discharge their burden of demonstrating that theImpugned Measures violate subsection 6(1) of the Charter.

(2) Section 7 [Back to table of contents] [81]

Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprivedthereof except in accordance with the principles of fundamental justice.” [82] To demonstrate a violation of

section 7, a claimant must establish two things: (

i) that the law in question infringes their right tolife, liberty or security of the person; and (ii) that the infringement is not in accordance with the principles of fundamental justice. Thissecond requirement involves an evaluation of whether the law is arbitrary, overbroad or has consequences that are grosslydisproportionate to their object: Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (Carter), at paragraphs 55 and72. [83] All of the applicants allege that the requirement to stay in a GAA pending receipt of the results of the Day 1 Test constitutes aninfringement of their right to liberty. The Spencer-Duesing applicants and Mr. Colvin also claim that this requirement constitutes a

violation of their right to security of the person. I will deal first with the latter claim. (

a) Security of the Person [Back to table of contents] [84] The interests protected by the right to security of the person are alleged to be engaged due to the risk of exposure to the SARSCoV-2 virus at the GAA or DQF facilities, the risk of assault, and the “severe psychological harm” caused by the prospect of staying at aGAA. [85] Regarding the risk of exposure to the virus, the Spencer-Duesing applicants rely on “reports that have circulated [that] clearlyindicate congregations [in GAA facilities] in a way that is inconsistent with acceptable social distancing rules.” They further note thatMr.

Bexte, who has not alleged an infringement of his right to security of the person, stated that he was exposed to 14 individuals whileat a GAA and was placed in close con

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