R. v. Ananda, 2024 BCSC 203

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ananda, 2024 BCSC 203 Date: 20240208 Docket: X084818 Registry: New Westminster Rex v. Nithya Geetapriya Ananda A.K.A. Joanna Lasoka Before: The Honourable Justice Taylor On appeal from: An order of the Provincial Court of British Columbia, dated February 21, 2023 ( R. v. Lasoka , Surrey File No. FC1556250). Reasons for Judgment Counsel for the Crown: K.L. Torvik J.R. Lawn The Appellant, appearing in person: J. Lasoka Place and Date of Hearing: New Westminster, B.C. December 15, 2023 Place and Date of Judgment: New Westminster, B.C.

February 8, 2024 Table of Contents Introduction .. 3 Background .. 3 The Border Crossing . 3 The Trial 4 The Reasons for Judgment 5 Legislative Framework .. 7 Applicable Law ... 8 Issues .. 9 Analysis .. 9 1. Bill of Rights . 9 The Vukelich Issue . 11 The Merits of the Appellant’s Arguments . 12 The

Section 1(

b) Argument 13 The

Section 1(

a) Argument 16 2. Miscarriage of Justice . 20 Delayed Arraignment 20 Crown Documents . 21

3. Appeal on Sentence . 22 Order .. 22 Introduction [ 1 ] This is an appeal by the appellant, Joanna Lasoka, from a conviction and sentence in Provincial Court. The conviction and sentence arose from a ticket and fine issued to her at the Canadian border on June 21, 2022 when re-entering Canada from the United States for failing to provide her quarantine plan or contact information via the ArriveCan mobile application (“ArriveCan”).

The ticket and fine were issued under the Quarantine Act , S.C. 2005, c. 20 [the Quarantine Act ], and enforced under the Contraventions Act , S.C. 1992, c. 47 [the Contraventions Act ]. [ 2 ] The appellant disputed her ticket and fine and a trial was held in Provincial Court on February 21, 2023. At the conclusion of the trial, the Provincial Court judge (the “Provincial Court Judge”) convicted the appellant but reduced the amount of the fine due to the appellant’s financial hardship. [ 3 ] The appellant now appeals the decision of the Provincial Court Judge on both the conviction and the sentence.

Background The Border Crossing [ 4 ] On June 21, 2022, the appellant crossed the border into Canada from the United States at the Peace Arch Border Crossing in Surrey, British Columbia (the “Border Crossing”). [ 5 ] At that time of the Border Crossing, there were measures of the federal government in place relating to the spread of COVID-19, and these measures included various requirements imposed on travellers entering Canada. One of these requirements was to provide a suitable quarantine plan or contact information by electronic means specified by the Minister of Health before entering Canada.

At that time, travellers were required to provide this information by downloading ArriveCan onto a phone or computer and filling out the information requested in that mobile application before entering Canada. In the event that downloading ArriveCan was not possible, there were alternative options available at the border to provide a suitable quarantine plan or contact information. [ 6 ] On the day of the Border Crossing, the appellant declined to download or fill out ArriveCan, despite being warned by a customs officer that she would be fined if she declined to do so.

As a result, she was issued Federal Contraventions Ticket FC015562502 (the “Ticket”) and given a fine in the amount of $5,750 (the “Fine”). There was no evidence on the appeal as to whether alternative options to ArriveCan were requested by, or offered to, the appellant. The Trial [ 7 ] The appellant disputed the Ticket and the Fine in Provincial Court and a trial was held on February 21, 2023. [ 8 ] At the trial, the Crown called as a witness a Screening Officer from the Public Health Agency of Canada and adduced two affidavits in evidence.

The affidavits evidenced that the appellant had indeed crossed the Border Crossing on the alleged date and time (which was not disputed by the appellant) and also that the Minister of Health had required, pursuant to authority granted under the Quarantine Act , that Canadians provide a quarantine plan and contact information via ArriveCan when re-entering Canada. [ 9 ] After the Crown closed its case, the appellant was provided with the opportunity to call evidence but chose not to do so. In her closing argument, the appellant argued that the Ticket and the Fine were a violation of her rights under ss. 1 (

a) and (

b) of the Canadian Bill of Rights , S.C. 1960, c. 44 [the Bill of Rights ]. The appellant was explicit in her argument that she was not advancing an argument under the Canadian Charter of Rights and Freedoms , s. 7 ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 [the Charter ]. The Reasons for Judgment [ 10 ] In reasons for judgment following the completion of the trial (the “Reasons for Judgment”), the Provincial Court Judge rejected the appellant’s argument and convicted the appellant. [ 11 ] The Provincial Court Judge first observed that the appellant should have given notice to the Crown of a constitutional challenge under the Constitutional Question Act , R.S.B.C. 1996, c. 68 [the Constitutional Question Act ] but had failed to do so.

Despite the appellant’s failure to give notice, the Provincial Court Judge nonetheless proceeded to decide the appellant’s challenge on the merits. [ 12 ] In the Reasons for Judgment, the Provincial Court Judge rejected the appellant’s argument because he found that she had failed to state the basis of her application with reasonable particularity and further found that there was no reasonable prospect of success based upon the argument presented. [ 13 ] With respect to the s. 1 (

b) argument under the Bill of Rights (right to equal protection before the law), the Provincial Court Judge

explained that the appellant had made two arguments: (1) that there was inequality before the law because the Quarantine Act providesfor two categories of individuals, vaccinated and unvaccinated; and (2) that the Province of British Columbia has enabled the federalContraventions Act to apply in British Columbia when it is not being similarly applied in other provinces, with the result that there wasinequality as between Canadians in different provinces. [14] The Provincial Court Judge emphasized in the Reasons for Judgment that the appellant had presented no evidence in support ofher Bill of Rights s. 1(

b) argument. In particular, the Provincial Court Judge noted, the appellant had not specified at trial whether shewas vaccinated or unvaccinated or whether the alleged inequality related to either status, nor had she specified whether and howArriveCan was relevant at all to vaccination status. [15] The Provincial Court Judge also rejected the appellant’s argument about differential provincial application of the federalContraventions Act creating alleged inequality, noting that the appellant had failed to demonstrate that provinces could not legislatedifferently in their own jurisdictional areas.

The Provincial Court Judge observed: There are lots of laws that are varied from province to province. The first one that comes to mind offhand is the Motor Vehicle Act ofBritish Columbia and I believe the equivalent Act in Ontario is the Highway Traffic Act and there are differences within that legislation,as might be expected. [16] With respect to the s. 1(

a) argument (life, liberty and security of the person and enjoyment of property), the Provincial CourtJudge found that the right to privacy is not absolute, finding that what was reasonable in the circumstances had to take into account theCOVID-19 pandemic.

The Provincial Court Judge found that there was insufficient evidence adduced by the appellant that anyinterference with her privacy was unreasonable and outweighed the interest of the public in protecting the health of the population,emphasizing that the Quarantine Act and ArriveCan were designed to protect members of society and the country. [17] On the basis of the foregoing, the Provincial Court Judge found that the chance of the appellant’s arguments was “extremely,extremely low” and, pursuant to R. v.

Vukelich (1996), (BC CA), 78 B.C.A.C. 113 [Vukelich], the Provincial CourtJudge explained that he would not have allowed a hearing in this regard had it been made clear to him at the outset what was going to beargued by the appellant.

Nonetheless, the Provincial Court Judge ruled on the merits because all the evidence at trial had been called atthat point and legal arguments concluded. [18] The Provincial Court Judge then proceeded to conduct a sentencing hearing where, having heard evidence from the appellant onher financial situation, he decided to reduce the Fine from $5,750 to $1,500 due to financial hardship. [19] On March 23, 2023, the appellant appealed both her conviction and the reduced Fine.

Legislative Framework [20] The Ticket was issued to the appellant pursuant to the Contraventions Act for an offence under the Quarantine Act. [21] Section 58(1) of the Quarantine Act empowers the Governor in Council to make orders subjecting classes of persons enteringCanada from a foreign country to certain requirements where it is of the opinion that this may risk the introduction or spread of acommunicable disease. [22] During the COVID-19 outbreak, the Governor in Council issued Order in Council OIC 2022-0567 (2022-05-31), entitled theMinimizing the Risk of Exposure to Covid-19 in Canada Order (the “OIC”).

Section 19(4) of the OIC states that a person who entersCanada must provide their suitable quarantine plan or their contact information by “electronic means” specified by the Minister of Healthunless they are unable to provide their plan by electronic means by reason such as a disability, inadequate infrastructure, a servicedisputation or natural disaster, in which case the plan must be provided in the form and manner and at the time specific by the Ministerof Health. [23] The evidence adduced by the Crown at trial was that the federal Minister of Health had specified by order that ArriveCan wasthe “electronic means” referenced under s. 19(4).

This was not contested by the appellant. [24]

Section 71 of the Quarantine Act specifies that it is an offence on

summary conviction, subject to a fine, for any person tocontravene s. 58 of that legislation (as referenced above). [25] The Contraventions Act provides a procedure for the prosecution of federal regulatory offences designated as contraventions,including under the Quarantine Act.

The Contraventions Act allows enforcement authorities to commence the prosecution of acontravention by means of a ticket and provides the offender with the ability to voluntarily pay the fine without coming to court. [26] Under the Contraventions Act, the federal government has entered into agreements with willing provinces, for the purposes ofefficiency and to avoid duplication, to make existing provincial ticketing schemes available to federal contraventions.

In BritishColumbia, the procedure for Contraventions Act tickets is governed by the Offence Act, R.S.B.C. 1996 c. 338 [the Offence Act]. [27] Pursuant to s. 5 of the Contraventions Act, the provisions of the Criminal Code, R.S.C. 1985, c. C-46 [the Criminal Code]relating to

summary conviction offences apply to proceedings in respect of contraventions, except as otherwise provided under theContraventions Act. [28] The ticket amounts for contraventions of the Quarantine Act are fixed by regulation under the federal ContraventionsRegulations, SOR/96-313. Section 8(1)(

c) of the Contraventions Act allows the Governor in Council to establish fine amounts fortickets. The appellant did not dispute at trial that the Fine of $5,750 in the Ticket was within the range permitted for a contravention ofSection 8(1)(

c) of the Contraventions Act.

Applicable Law [29] The standard of review on an appeal in a

summary conviction matter was helpfully described by Justice Romilly in Her Majestythe Queen v. Pomeroy, 2007 BCSC 142 at para. 25: [25] The right to appeal from a

summary conviction matter is governed by

Part XXVII of the Criminal Code. Section 822(1) of theCriminal Code provides that in a

summary conviction appeal pursuant to s. 813, ss. 683 to 689 relating to appeals of indictable offences,except s. 683(3) and s. 686(5), apply. Section 686(1) states: 686(1) On the hearing of an appeal against conviction ... the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or, (iii) on any ground there was a miscarriage of justice; [26] The function of the

summary conviction judge is to determine whether the trial judge could reasonably have reached the conclusionthat the appellant was guilty beyond a reasonable doubt: R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122; R. v. Grosse (1996), (ON CA), 29 O.R. (3d) 785 (Ont. C.A.). [27] In R. v. Hay (1990), 25 M.V.R. (2d) 121 (B.C.C.A.), Toy J.A., stated at 127, quoting Estey J. in R. v. Harper, (SCC), [1982] 1 S.C.R. 2 at 14: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence.

Theduty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court hasproperly directed itself to all the evidence bearing on the relevant issues... Issues [30] The appellant makes three principal arguments on the appeal: 1. That the Provincial Court Judge erred by failing to give effect to the appellant’s arguments under the Bill of Rights; 2. That a miscarriage of justice arose from certain procedural irregularities at trial; and 3. That the Fine should be overturned. [31] I will address each of the appellant’s arguments in turn. Analysis 1.

Bill of Rights [32]

Section 1 of the Bill of Rights states in relevant part: 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; (

b) the right of the individual to equality before the law and the protection of the law… [33] The appellant was self-represented on the appeal and her argument was at times difficult to follow.

To avoid misrepresenting herargument, I will quote directly from her factum (at paras. 4 and 6): Whether or not the appellant downloaded the app and complied with the OIC was not part of the appellant’s argument. […] The appellant’s defence is not built around what she did or didn’t do at the time of the alleged offence, rather the defence is founded onthe principles of the rights and freedoms that Canadians have always enjoyed as a colour of right in Canada.

The closing argumentsdemonstrated that the Quarantine Act regulations (the OIC) and the Contraventions Act interfere with the appellants right to liberty,security of person and enjoyment of property as well as the right to equal treatment and protection of the law afforded in the CanadianBill for Rights, sections 1(

a) and 1(

b) respectively. [34] The appellant also emphasized on the appeal that her arguments are based solely on the Bill of Rights and not in any way on the

Charter . The appellant particularized her argument as follows (at para. 45 of her factum): The Quarantine Act regulations infringe on the appellants rights in the manner in which they were applied against her. Given the fact that: 1. There were two categories of people created and treated differently, vaccinated, and unvaccinated and those categories of people were treated differently. 2. The ArriveCan tool violated my right to privacy and was above and beyond a “reasonable measure” to prevent the introduction or spread of a communicable disease. 3.

The OIC listed roughly 40 different categories of people who were exempt from the regulations and the Contraventions Act was not applied equally to all Canadians and this is a violation of equal treatment and protection of the law. [ 35 ] In my view the Provincial Court Judge made no error of law by failing to give effect to the appellant’s arguments under the Bill of Rights , nor was the verdict unreasonable or unsupported by the evidence in that respect. [ 36 ] The Provincial Court Judge found that the appellant’s argument should be dismissed on the merits because the appellant had failed to particularize her Bill of Rights application with specificity and had failed to adduce any evidence in support of her application or the remedy sought, with the result that there was “absolutely no chance of success”.

In my view the Provincial Court Judge was not incorrect in so ruling. The Vukelich Issue [ 37 ] It was apparent from the transcript of the proceeding that it was complicated by the failure of the appellant to give notice in advance to the Crown or the Provincial Court Judge that she intended to bring a broad-based Bill of Rights challenge to a whole or a part of the legislative scheme related to ArriveCan (as opposed to merely disputing the factual justification for the Ticket).

As a result of the failure to provide advance notice, the Provincial Court Judge was not duly advised of the appellant’s intended Bill of Rights argument before the evidentiary cases of the Crown and the appellant were closed, with the result that the Provincial Court Judge did not have an opportunity to conduct a Vukelich voir dire and make a ruling at the outset of the hearing before the evidence had been called.

Instead, at the conclusion of the hearing, the Provincial Court Judge made simultaneously a Vukelich ruling and a ruling on the merits. [ 38 ] A Vukelich ruling after the evidence had been called at trial would be irregular under ordinary circumstances because its purpose is to determine if a legal issue has sufficient merit to be raised at trial. For this reason, a Vukelich ruling would normally be made in a voir dire at the outset of a hearing. [ 39 ] Despite this procedural irregularity, in my view there was no prejudice to the appellant arising from the late Vukelich ruling for two reasons.

First, the appellant had failed to give notice of the Bill of Rights challenge prior to the hearing, with the effect that the Provincial Court Judge had to no choice but to address the argument at a later stage of the hearing once it was raised.

In this respect, there was in my view considerable merit to the Provincial Court Judge’s observation that the appellant should properly have been given notice to the Attorney General under the Constitutional Question Act of her intention to challenge the legislative scheme, as her argument amounted to an attempt to strike down or declare inoperative legislation on constitutional or quasi-constitutional grounds, and a central purpose of the Constitutional Question Act is to give the Attorney General due notice that legislation may be challenged and an opportunity to prepare to defend that legislation.

That said, it is not necessary for me to decide that issue on this appeal because the Provincial Court Judge did not dismiss the appellant’s claim on that basis and instead accommodated the appellant by addressing her arguments on the merits. [ 40 ] Second, the appellant called no evidence at trial, with the result that whether the Provincial Court Judge’s ruling was characterized as a “ Vukelich ruling” or a “ruling on the merits”, the end result was exactly the same, namely, the Provincial Court Judge addressed the appellant’s arguments in a context where the arguments were not supported by an evidentiary foundation.

The Merits of the Appellant’s Arguments [ 41 ] Regardless of whether the Provincial Court Judge’s decision is characterized as a Vukelich ruling or a trial decision on the merits, my view is that the Provincial Court Judge made no error in dismissing the application. This is because the fundamental flaw in the appellant’s argument was the same in either scenario, namely, her complete failure to particularize the nature of her Bill of Rights application, the remedy sought or to adduce any evidence in support.

This flaw can be understood in two different ways. [ 42 ] First, the appellant failed to specify which element of the legislative scheme or regulatory instrument relating to the Ticket or the Fine she was challenging under either s. 1 (

a) or 1 (

b) of the Bill of Rights . She did not, for example, specify whether she was seeking to have some or all of the Quarantine Act , the Contraventions Act or the OIC struck down or declared inoperative, nor did she specify which specific provisions of these legislative instruments she was seeking to impugn, the reasons why and what remedy she was proposing to address the alleged Bill of Rights infringement.

The result was that the Provincial Court Judge was put in the unfortunate position of having to speculate about the specific focus of her Bill of Rights challenge. [ 43 ] Second, even if she had particularized the specific legislative target of her challenge (which she did not), the appellant also failed to call any evidence in support of her application, which was separately and equally problematic. With respect to this evidentiary aspect, I will address each of the appellant’s s. 1 (

b) and 1 (

a) arguments in turn. The

Section 1(

b) Argument [ 44 ]

Section 1 (

b) of the Bill of Rights protects “the right of the individual to equality before the law and the protection of the law”.

[45] The appellant argued that this right was violated in her case because: (1) the Quarantine Act differentiates between vaccinatedand unvaccinated people, thereby creating inequality (although again I emphasize that she did not identify which sections of theQuarantine Act or in what respects she alleges that this differentiation occurs); and (2) the Contraventions Act is not applied equally to allCanadians across the different provinces and there are also many categories of exemptions under the OIC. [46] A central problem with the appellant’s s. 1(

b) arguments is that these arguments were completely unsupported by any evidencewhich could support even a prima facie infringement of her rights under the Bill of Rights. For example:

(1) The appellant did not adduce any evidence as whether she is vaccinated or unvaccinated (and in fact refused to do so), with the resultthat she failed to demonstrate a status either way that could form a basis for her own claim of inequality. She also failed to demonstrate orexplain how either vaccinated or unvaccinated persons are specifically given lesser equality and protection of the law under thislegislative scheme;

(2) Equally importantly, the appellant did not adduce evidence that ArriveCan actually required a traveller to reveal vaccination status atall, thereby making her vaccination status seemingly irrelevant to the underlying statutory basis for her being issued the Ticket and theFine. Indeed, contrary to the appellant’s argument, the Crown explained that ArriveCan does not in fact require a traveller to revealvaccination status at all but merely a quarantine plan and address as specified in the OIC. The appellant adduced no evidence to refutethis factual assertion by the Crown;

(3) Despite her vague allegation about differential enforcement across provinces, the appellant did not adduce specific evidence orexamples of differential federal contravention policies and fines in different provinces or how these alleged differential enforcementregimes created inequality for her in British Columbia. Moreover, she failed to address the more fundamental fact that, regardless ofdiffering enforcement regimes across Canada, her actions were indisputably and equally a contravention of the federal Quarantine Act inevery province in Canada, regardless of how that contravention might be enforced in different provinces; and

(4) The appellant referenced “exemption categories” in her argument which she asserted were constitutionally problematic but failed toadduce evidence of what she was referring to or how her personal characteristics placed her in a meaningful position of inequality withrespect to these alleged exemption categories. [47] Further, to the extent that the appellant insisted that her claim is brought solely under the Bill of Rights and not under theCharter, I am not convinced that the jurisprudence would assist her claim, even if she had adduced some evidence of inequality.

This isbecause the Supreme Court of Canada has for many years made it clear that the right to “equality” under the Bill of Rights is not to be equated to the substantive right to equality found under the 14th Amendment in the United States (and subsequently adopted in Canadaunder s. 15 of the Charter), but instead to a more generic right to the equal application of the rule of law. [48] For example, in R. v.

Burnshine, (SCC), [1975] 1 S.C.R. 693 [Burnshine] at p. 705, the Supreme Court ofCanada explained that the Bill of Rights did not guarantee the right of every individual to demand that every statute enacted would applyequally to every person equally and in all areas of Canada. In that case, the Supreme Court of Canada ruled that the availability ofdifferent criminal sentences for youth offenders in different provinces did not violate the equality rights guaranteed under the Bill ofRights.

The Court explained that the protections in the Bill of Rights protected only existing freedoms at the time of enactment and (incontrast to the later Charter) did not create any new rights (at p. 705): It is quite clear that, in 1960, when the Bill of Rights was enacted, the concept of “equality before the law” did not and could not includethe right of each individual to insist that no statute could be enacted which did not have application to everyone and in all areas ofCanada.

Such a right would have involved a substantial impairment of the sovereignty of Parliament in the exercise of its legislativepowers under s. 91 of the British North America Act and could only have been created by constitutional amendment, or by statute. In myopinion the wording of the Bill of Rights did not do this, because, as has already been noted, by its express wording it declared andcontinued existing rights and freedoms. It was those existing rights and freedoms which were not to be infringed by any federal statute.Section 2 did not create new rights.

Its purpose was to prevent infringement of existing rights. It did particularize, in paras. (

a) to (g),certain rights which were a part of the rights declared in s. 1, but the right claimed by the respondent does not fall within any of thoseseven paragraphs. [49] Similarly, in Attorney General of Canada v. Lavell and Isaac v.

Bédard at p. 1365, Ritchie J. made it clear that the right to equality under the Bill of Rights was not to be confused with the substantive right found under the 14th Amendment in the United states: In my view the meaning to be given to the language employed in the Bill of Rights is the meaning which it bore in Canada at the timewhen the Bill was enacted, and it follows that the phrase “equality before the law” is to be construed in light of the law existing inCanada at that time. In considering the meaning to be attached to “equality before the law” as those words occur in s. 1(

b) of the Bill, I think it important topoint out that in my opinion this phrase is not effective to invoke the egalitarian concept exemplified by the 14th Amendment of the U.S.Constitution as interpreted by the courts of that country. (See Smythe v. The Queen, (SCC), [1971] S.C.R. 680, perFauteux C.J. at pp. 683 and 686). I think rather that, having regard to the language employed in the second paragraph of the

preamble tothe Bill of Rights, the phrase “equality before the law” as used in s. 1 is to be read in its context as a part of “the rule of law” to whichover-riding authority is accorded by the terms of that paragraph. [50] Thus, to the extent that the appellant has sought to analogize the right to equality under the Bill of Rights to the substantive rightto equality under the Charter, this is not supported by the jurisprudence.

Accordingly, to the extent that different ticketing regimes areavailable under the Contraventions Act in different provinces, and that a distinction is made in the legislative scheme between vaccinatedand unvaccinated individuals, such distinctions do not impugn the Bill of Rights so long as they are consistent with the rule of law andrights and freedoms as they existed at the time the Bill of Rights was enacted.

The appellant failed completely to demonstrate how theselegislative distinctions were inconsistent with either the rule of law or rights and freedoms as they existed at the time the Bill of Rightswas enacted, and her argument is therefore fundamentally flawed.

The

Section 1(

a) Argument [51]

Section 1(

a) protects “the right of the individual to life, liberty, security of the person and enjoyment of property, and the rightnot to be deprived thereof except by due process of law”. [52] The appellant argues that ArriveCan violated her right to privacy under s. 1(

a) and was above and beyond a “reasonable measure”to prevent the introduction or spread of a communicable disease. [53] I note in passing that s. 1(

a) does not expressly protect privacy, and I have considerable doubt as to whether the s. 1(

a) rightextends by implication to include a right to privacy (or, as equally alleged by the appellant, a right to have any measures adopted underthe Quarantine Act be “reasonable”), particularly in light of the jurisprudence I have reviewed above with respect to the Bill of Rightscreating no new rights that did not exist at the time of its enactment. [54] The appellant certainly did not reference any legal authority in support of the proposition that the s. 1(

a) incorporates a right toprivacy. The principal legal authorities relied upon by the appellant were Jones v. Tsige, 2012 ONCA 32, a civil tort case, and a decisionof the Canadian Military Tribunal concerning the applicability of the Charter to the Armed Forces’ mandatory COVID-19 vaccinepolicy. Neither of these decisions related to the Bill of Rights. [55] That said, I find it unnecessary to address this legal question directly on this appeal because the appellant’s argument fails in anyevent due to a complete lack of evidence. As with her s. 1(

b) argument, a central problem with the appellant’s s. 1(

a) argument is that shefailed to adduce any evidence establishing a factual foundation for a violation of her privacy (assuming without deciding that such a rightexists at all under the Bill of Rights, with respect to which I have considerable doubt). For example: • The appellant did not specify what specific protected private information she alleged that the ArriveCan compelled her to reveal. Ifit was merely a quarantine plan and address as specified in the OIC, she did not explain why the disclosure of this information creates aspecific privacy concern for her.

If it was other information, she did not specify what that information was. For example, she did notadduce evidence that she was required at the Border Crossing to reveal private or sensitive medical information and, if so, what thenature of that information was; • The appellant adduced no evidence or explanation as to why the downloading of ArriveCan itself (which she refused altogether toinstall on her phone) was problematic for her from a privacy perspective nor did she specify which questions or sections in ArriveCancaused a privacy concern or why.

Was it the downloading of ArriveCan itself that was the issue or was it being required to respond toparticular questions within the application once it was downloaded that were the issue?

The appellant did not say; • The appellant also did not specify whether it was only ArriveCan itself which was constitutionally problematic or whether herclaim was broader and extended to any requirements under the OIC or the Quarantine Act that information be divulged by travellers atthe border. [56] I pause to note here that the range of information that can potentially be required to be disclosed under the OIC or the QuarantineAct at the border is wide-ranging with the effect that the appellant’s challenge, if interpreted broadly, would have required the ProvincialCourt Judge to consider invalidating a substantial portion of the OIC and many core provisions of the Quarantine Act, all without noticein advance to the Attorney General or an underlying evidentiary basis. [57] Such a broad approach to invalidating legislation, if adopted by the Provincial Court Judge, would have been inconsistent withthe more cautious and limited approach recommended by the Supreme Court of Canada with respect to the application of the Bill ofRights.

For example, in Burnshine the Supreme Court majority emphasized that it could only identity one instance of a federal statutebeing declared inoperative because it infringed the Bill of Rights, and cautioned that this was one case was an unusual situation. Themajority further provided a rationale for why courts should be reluctant to employ the Bill of Rights, which is statutory or at best quasi-constitutional law, to declare statutes to be inoperative (at p. 707): The words used by Laskin J. in a slightly different context, in Curr v. The Queen, supra at p. 899, may have application here.

He wasconsidering the extent to which this Court might, under s. 1(

a) of the Bill of Rights, the "due process of law" provision, have power tocontrol substantive federal legislation.

He said on the assumption that such power might exist, ... compelling reasons ought to be advanced to justify the Court in this case to employ a statutory (as contrasted with a constitutional)jurisdiction to deny operative effect to a substantive measure duly enacted by a Parliament constitutionally competent to so, andexercising its powers in accordance with the tenets of responsible government, which underlie the discharge of legislative authority underthe British North America Act. [58] In my view the appellant failed to provide the Provincial Court Judge with a compelling justification for departing from thecautious approach to Bill of Rights

interpretation mandated by the Supreme Court of Canada. [59] In conclusion, the fundamental flaw in the appellant’s Bill of Rights argument was a failure to particularize the specific legislativeprovisions challenged and the remedy sought, or to adduce as evidence sufficient legislative or adjudicative facts in support of thelegislative challenge. [60] In Danson v. Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086 at p. 1099, the Supreme Court of Canadaexplained that courts engaging with a constitutional challenge to legislation must be vigilant to ensure that a “proper factual foundationexists”.

Danson was referring to the Charter, but the same principle clearly applies to the appellant’s Bill of Rights application to theextent that her application was inviting the Provincial Court Judge to strike down portions or a whole of a legislative scheme on thegrounds that this scheme was constitutionally deficient and allegedly infringed her fundamental rights. [61] For the reasons explained in Danson, the Provincial Court Judge was correct in my view to dismiss the application either on themerits or, in the alternative, on the basis of the principles in Vukelich. Recently, in R. v.

Haevischer, 2023 SCC 11 [Haevischer],

paras. 96-97, the Supreme Court of Canada explained that even on a Vukelich application (let alone a hearing on the merits as in this casewhere the burden on the appellant was higher) the party bringing the underlying application has a “minimal burden” to provide sufficientspecifics: [96] … While the burden on a Vukelich application rests on the party seeking

summary dismissal, the party bringing the underlyingapplication also has a “minimal burden”: It should not take extensive and detailed contested evidence to ascertain whether the application will necessarily fail. Counsel should, atminimum, offer particulars as to (1) what legal principles, Charter provisions, or statutory provisions are being relied on and how thoseprinciples or provisions have been infringed; (2) the (anticipated) evidence to be relied on and how it may be adduced; (3) the proposedargument; and (4) the remedy requested (Baker, at para. 11; Dwernychuk, at paras. 21-22). [97] On a

summary dismissal motion, the party who has brought the underlying application bears the minimal burden of providing thejudge with the specifics outlined above through oral or written submissions. While the overall burden rests on the party seeking

summarydismissal, the applicant is the one with knowledge of what remedy they seek, so they should set out, with sufficient detail, what theyhope to prove on the application in order to obtain that remedy. [62] On this application, the appellant had failed to offer particulars with respect to any of the four categories referenced by theSupreme Court of Canada in Haevischer and therefore did not meet the required “minimal burden”.

To the contrary, there was in myview no factual foundation at all established by the appellant in this case, let alone the specific evidentiary minimum required by theSupreme Court of Canada in Haevischer. [63] The appellant’s appeal on the Bill of Rights arguments is therefore dismissed. 2. Miscarriage of Justice Delayed Arraignment [64] The appellant argued that there was a miscarriage of justice at trial because she was not properly arraigned at the outset of thehearing before the Provincial Court Judge. [65] The record confirms that, as alleged, the appellant was not arraigned at the outset of the trial.

This was apparently an oversight bythe Provincial Court Judge. Upon becoming aware of this oversight midway through the hearing (and before the appellant was given theopportunity to present evidence in support of her case), the Provincial Court Judge took steps to remedy the error by arraigning theappellant mid-hearing. [66] Did the late arraignment constitute a miscarriage of justice or create fundamental unfairness for the appellant?

In my view it didnot. [67] The failure to require that an accused plead to the charges is a procedural irregularity that may be cured under s. 686(1)(b)(iv) ofthe Criminal Code if the accused suffered no prejudice and the conduct of the proceedings was not affected: R. v. Mitchell, (Ont. C.A.) at p. 18. [68] From a review of the record I am satisfied that the delay in arraigning the appellant did not materially impact the conduct of theproceedings nor did it prejudice the appellant.

Throughout the hearing before the Provincial Court Judge, the appellant consistentlyasserted her innocence with respect to the Ticket and the Fine, and at no time during the hearing did the Provincial Court Judge or theCrown assert or imply that she had pleaded guilty or was otherwise not fully contesting the contravention.

The appellant was also giventhe full opportunity to present evidence in support of her defence and to make a full constitutional argument. [69] In short, the failure to arraign the appellant at the outset amounted to a technical deficiency in the process only, with nosubstantive effect on the appellant’s trial rights. This ground of appeal is therefore dismissed. Crown Documents [70] The appellant further asserted that her rights had been infringed by the fact that the Crown had adduced an affidavit from aCanadian Border Services Agency (“CBSA”) employee in support of its prosecution at trial.

The affidavit attached the CBSA’sIntegrated Customs System record, which is a document that shows that the appellant entered Canada at the time of the offence, and wasadmitted pursuant to the business records exception to the hearsay rule under s. 30(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5. [71] In my view this did not create any substantive unfairness under the circumstances. During the hearing the Provincial Court Judgeasked the appellant if she had any objection to the affidavit being admitted and she stated that she did not.

The affidavits were adducedfor the sole purpose of presenting a business record to the court and in my view contained no controversial factual assertions that createdany procedural unfairness for the appellant. To the contrary, the appellant admitted that she did in fact cross the border on the same dayindicated in the Integrated Customs System record, which was the purpose of adducing the affidavit.

This was therefore not a contestedfactual issue at trial, and no prejudice to the appellant arose. [72] The appellant further argued that there was unfairness resulting from the failure of the Crown to produce the notes of the“primary CBSA Officer” she dealt with at the time of the offence. [73] The Crown explained that it had made appropriate inquiries of CBSA and determined that there were notes on file of a BorderService Officer Erickson, which were in fact disclosed to the appellant. The CBSA also confirmed there were no other notes on file.

It iswell established that the Crown has no obligation to disclose what it does not have or cannot obtain: R. v. McNeil, 2009 SCC 3 atpara. 22. The Crown therefore met its disclosure obligations by obtaining and disclosing the notes available and there was no procedural

unfairness. [ 74 ] For all the above reasons I conclude that there was no miscarriage of justice in this case. 3. Appeal on Sentence [ 75 ] The Provincial Court Judge exercised his discretion in the appellant’s favour on the basis of financial hardship to reduce her Fine from $5,750 to $1,500. The appellant made no compelling argument on appeal as to why the Provincial Court Judge’s sentencing decision (which favoured the appellant) should be overturned, and I see none on a review of the record. [ 76 ] Accordingly, this ground of appeal is dismissed.

Order [ 77 ] On the basis of the foregoing, the appeal is dismissed. [ 78 ] The parties have leave to speak to the issue of costs. “M. Taylor J.”