Justice Centre moves forward with appeal on COVID quarantine facilities, says measure infringed on Charter rights

A motion on the constitutionality of mandatory quarantine hotels and facilities will be heard on January 17, 2023, by the Federal Court of Appeal, with the Justice Centre intent on challenging the Federal Court decision more than a year after filing the appeal.

Justice Centre moves forward with appeal on COVID quarantine facilities, says measure infringed on Charter rights
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During the COVID-19 pandemic, the Trudeau Liberals forcibly confined Canadians who did not have proof of a negative PCR test upon re-entry to Canada in government-approved facilities. Commencing January 2021, the Department of Public Safety said the federal government sent more than 28,000 people into quarantine hotels and facilities at public and personal expense.

One of the appellants, Steven Duesing, is a Canadian citizen and a resident of Ontario. He went to the U.S. on December 25, 2020, to visit his girlfriend, whom he had not seen for seven months.

The COVID-19 measures did not come into effect at his departure, yet the Trudeau Liberals' policy deemed Duesing “unable to quarantine” at his residence upon his return on January 31, 2021.

Border agents informed him he would take a PCR test and quarantine at a government-approved facility for 48–72 hours until he received his test results. They confiscated Duesing's passport until he agreed to go to the quarantine facility and threatened him with imprisonment if he did not comply.

Another appellant, Pastor Nicole Mathis, a Canadian and resident of Calgary, returned to the country by air on January 26, 2021. She had called ahead to confirm the requirements and learnt she needed a negative COVID-19 test but not specifically a PCR test. They also said that Mathis had to quarantine at home for 14 days.

Accordingly, she took an antigen test. But upon arrival at the airport, staff refused her antigen test, stating she needed to take a PCR test and quarantine at an undisclosed government facility until she obtained a negative test result.

Police informed Mathis that they would apprehend and take her to the facility by force if she did not comply. They refused to disclose to the husband her whereabouts, which Mathis' trial judge agreed unjustifiably violated her rights.

On February 14, 2021, the Trudeau Liberals announced they would require all international air travellers to quarantine in government-approved hotels for three days, regardless of test status. Travellers would pay for these facilities out of pocket at an estimated $2,000 per traveller — often a non-refundable cost to Canadians.

The Federal Court heard a Charter challenge to the federal quarantine requirements from June 1 to 3 last year, ruling the measures as constitutional. Because of the direct result of this litigation, the federal government advised all travellers that they had a right to speak to a lawyer before being directed to a quarantine facility.

On November 10, 2021, The Office of the Auditor General of Canada released a report focusing on how the Public Health Agency of Canada (PHAC) implemented and enforced quarantine of air travellers at government-authorized hotels pending the results of their on-arrival COVID-19 tests.

Among other things, the report concluded that “[a]lthough the Public Health Agency of Canada improved its verification of compliance with 14-day quarantine orders, it did not adequately enforce additional border control measures imposed to limit the introduction of the virus that causes Covid-19 and its variants into Canada.” Further, 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-19 quarantine requirement ended on August 9.

With this Auditor General of Canada report unavailable at the time of trial, lawyers funded by the Justice Centre for Constitutional Freedoms brought a motion to have it admitted at the Federal Court of Appeal. They will decide on the same day as the hearing on its merits after considering claims the appeal is moot with the quarantine centres no longer in effect.

While the Federal Court of Appeal granted the motion brought by the applicants to expedite the appeal due to public interest, the matter remained in limbo since July 9, 2021.

The Trudeau Liberals argue the appeal is moot because the measures are no longer in force.

“Confining law-abiding citizens into government-approved facilities and hotels — and, in some cases, without informing them of the location of the facility and without their right to speak to a lawyer — is unacceptable in a free and democratic society,” said Henna Parmar, co-counsel on this appeal. “We are hopeful that the Federal Court of Appeal will agree with the Appellants that the lower court erred in finding that justified the mandatory use of quarantine hotels and facilities in a free and democratic society.”

“The government should not be immune from accountability for breaching thousands of Canadians' Charter rights and freedoms,” said Parmar. “The Court has the discretion to hear a case that is moot if the issue is of public importance and a resolution is in the public interest.”

She argues the public will lose confidence in how justice is dispensed in Canada if the Courts shield the ‘nationwide scheme’ that detained law-abiding citizens and infringed upon several Charter rights.

“We are hopeful that the Federal Court of Appeal does not dismiss the case on mootness and decides the issues on its merits,” adds Ms. Parmar, citing the evidence does not support the effectiveness of the measures.

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