Federal Appeals Court declares quarantine hotel challenge 'moot' as 'it's no longer a live controversy'

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The Justice Centre is disappointed after the Federal Court of Appeal dismissed its appeal about the constitutionality of quarantine hotels and facilities. 

"In Spencer v Canada and Bexte v Canada, the court found that the appeal was moot and refused to hear it on the basis the orders mandating the hotel stays were no longer in effect and that there was therefore no longer a 'live controversy' between the parties," said the Justice Centre in a statement Tuesday.

The release said the Federal Court of Appeal could have heard the appeal as a matter of public interest, despite a lack of live controversy between the parties, but it exercised its discretion not to listen to the appeal.

The Justice Centre expressed disappointment and concern with the ruling because "it permits government actions that severely violated Canadians' Charter rights to go unaddressed because of the passage of time and the government's choice not to continue those particular Charter-violating actions." It said the court's dismissal permits governments to continue with "future unprecedented draconian measures against Canadians without judicial checks and balances."

"There are instances such as these where Canadians cannot get their cases before the courts quickly enough before governments remove these measures for them to be properly adjudicated through the court system," reads the release.

"Such a result is a grave injustice."

The Justice Centre announced Monday that the two Canadians forced into quarantine facilities at their own expense would appear before the Federal Court of Appeal on Tuesday. 

"The federal requirement to force returning Canadians into quarantine hotels was unscientific, unprecedented, and should never be repeated in this country," said JCCF lawyer Allison Pejovic. 

The Department of Public Safety said Canada sent more than 28,000 people into quarantine hotels and facilities at public and personal expense. "To confine healthy Canadians into isolation facilities against their will was to treat them like criminals," added Pejovic.

In June 2021, the Federal Court of Canada ruled mandatory quarantine hotels unconstitutional at a traveller's expense without preserving their right to counsel.

Pastor Nicole Mathis is among the claimants present at the Appeals Court. Upon her return to Canada on January 26, 2021, the Public Health Agency of Canada (PHAC) informed her that the proof of the negative antigen test she provided was insufficient. Local law enforcement then accompanied her to a government-mandated facility without time to contact her legal counsel beforehand and compelled her to quarantine at home for 14 days.

The Justice Centre said they would further review the constitutionality of quarantine facilities, which, until Tuesday, remained in limbo since they filed the appeal on July 9, 2021.

On November 10, 2021, Canada's Auditor General released a report on the implementation and enforcement of quarantining air travellers at government-authorized hotels pending the results of their on-arrival COVID tests. It uncovered that the PHAC spent $7 million to operate government-authorized hotels and $225,556,596 to house incoming travellers at designated quarantine facilities briefly.

Supplementary estimates tabled in Parliament revealed taxpayers paid the total expense of transport, room, board and medical care for hotel stay until February 22, 2021, as Cabinet charged costs directly to travellers under the Quarantine Act. The COVID quarantine requirement ended on August 9.