Federal Court of Appeal dismisses constitutional challenge to 'contentious' ArriveCAN app

According to the Justice Centre, some plaintiffs willingly disclosed their vaccination status through other means. They all shared privacy concerns about ArriveCAN potentially sharing their personal medical information widely with other government agencies.

  • Rebel News
  • July 21, 2023
  • News Analysis
Federal Court of Appeal dismisses constitutional challenge to 'contentious' ArriveCAN app
THE CANADIAN PRESS/Giordano Ciampini
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The Federal Court of Appeal dismissed a constitutional challenge of the contentious ArriveCAN app, concluding the Federal Court made 'no errors' ruling against the suit.

The Justice Centre for Constitutional Freedoms (JCCF) filed a lawsuit last August 24 in Federal Court for 11 Canadians who faced a mandatory 14-day quarantine or significant fines for failure to use ArriveCAN.

"The Justice Centre has heard from thousands of Canadians who have been negatively impacted by the federal government's mandatory requirement to use ArriveCan," said litigator Eva Chipiuk. 

"Thousands of law-abiding citizens have been fined egregiously simply for returning to their home country."

On December 20, 2021, Parliament made ArriveCAN a mandatory prerequisite for travel abroad, which irked Joanne Walsh, a vaccinated Canadian citizen and plaintiff in the suit.

Border agents fined Walsh, a retired Canadian from Burlington, Ontario, for not using the ArriveCAN app despite presenting proof of vaccination. They also ordered her into a 14-day quarantine.

After the incident, the Public Health Agency of Canada sent agents to her residence to ensure she complied with the quarantine.

"Privacy of Canadians is one of the fundamental rights our Charter protects," said Hatim Kheir, one of the lawyers for the plaintiffs. 

According to the Justice Centre, some plaintiffs willingly disclosed their vaccination status through other means. They all shared privacy concerns about ArriveCAN potentially sharing their collected personal medical information widely with other government departments, agencies, police forces, and other countries. 

"ArriveCAN's disclaimer that Canadians' private information could be widely shared is a serious concern to the plaintiffs and should be for all of us," added Kheir.

Many of the plaintiffs received fines of up to $8,500 and continue to face prosecution for those fines. Those who failed or refused to use ArriveCAN could face a maximum fine of $750,000 or be imprisoned for up to 6 months, or both.

He called the measure an "unprecedented requirement" for Canadians to enter Canada.

On September 30, 2022, the federal government brought a motion to strike the case claiming the ArriveCAN requirement is now 'moot.'

Lawyers for the applicants argued a decision from the Federal Court would resolve the constitutional arguments clogging lower courts, where prosecutions of Canadians who did not use the app are proceeding nationwide.

On March 16, a Federal Court Justice dismissed the challenge because pandemic measures and mandatory quarantining no longer existed, deciding not to exercise its discretion to hear moot cases.

The Federal Court of Appeal heard the appeal on June 13, deciding not to overturn the decision due to mootness.

Ottawa launched the expensive ArriveCAN app in April 2020 as an alleged pandemic management tool. They claimed it would streamline the border-crossing process by allowing travellers to upload quarantine details. 

The app costs totalled $54 million, prompting the Commons to vote last November 2 for a special spending audit. Results are pending.

"We know this was a huge waste of our money," said Conservative leader Pierre Poilievre. "The government spent $54 million on an app that could have been developed over a single weekend for $250,000."

"Moreover, we know the app was unnecessary," he said. "Canadians have been able to cross the border without it for decades. Why did this app suddenly become necessary?"

Prime Minister Justin Trudeau asked the Clerk of the Privy Council earlier this year to review the ArriveCAN contracts and subcontracts tied to the two-person staffing firm tasked with its development and maintenance.

GCstrategies — the Ottawa-based company that received millions in federal commissions on IT projects — subcontracted its work on the ArriveCan app to six other companies, including multinationals such as BDO and KPMG. The firm typically billed Ottawa between $1,000 to $1,500 per worker daily.

Trudeau faced questions on why the federal government couldn't hire these IT companies directly instead of paying millions in commissions to the two-person staffing company.

"That's exactly the question I asked of the public service," he said. "This is a practice that seems highly illogical and inefficient." 

Since October 1, only a tenth of Canadian air travellers have used the 'highly illogical' Arrive CAN app to provide proof of vaccination.

In an Inquiry by Ministry tabled in the House of Commons, Public Safety Canada disclosed that of 9.97 million air travellers who entered Canada in the first quarter of the year, only 1.13 million used the ArriveCAN app or 11% of travellers.

At international airports in Edmonton, Winnipeg and Ottawa, usage rates fell as low as "less than one percent" for the voluntary program, reported Blacklock's Reporter. 

While Cabinet justified ArriveCAN as a 'time saver' for travellers, the Agency confirmed it saved them "about five minutes" at border crossings.

The Justice Centre has since filed a separate civil suit for Canadians fined or forced into quarantine for refusing to disclose their vaccine status through ArriveCAN in February.

"Privacy of Canadians is one of the fundamental rights our Charter protects," said Kheir. 

The lawsuit alleges the federal government owes the plaintiffs for monetary damages caused by forced compliance to use the app.

Canada Liberal Party of Canada News Analysis ArriveCan
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