Vaccinated senior sues Ottawa over 'unconstitutional' ArriveCAN app

Those failing or refusing to use ArriveCAN could have faced a maximum fine of $750,000 or be imprisoned for up to 6 months, or both.

Vaccinated senior sues Ottawa over 'unconstitutional' ArriveCAN app
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Canadians are taking the federal government to court over alleged Charter violations caused by its dysfunctional ArriveCAN app.

The Justice Centre for Constitutional Freedoms (JCCF) announced they filed a lawsuit in early February on behalf of several Canadians who were penalized for not declaring their COVID vaccination status via ArriveCAN, including 71-year-old Burlington resident Joanne Walsh.

The lawsuit alleges Ottawa breached the plaintiffs' rights as guaranteed by the Canadian Charter. 

According to the Justice Centre, some plaintiffs willingly disclosed their vaccination status through other means, including Walsh. However, they all shared privacy concerns concerning the app potentially sharing their collected personal medical information widely with other government departments, agencies, police forces, and even other countries. 

The plaintiffs also expressed concerns about having their vaccination status searched upon entry into Canada and having to use the software to enter their country under the threat of fines and mandatory quarantining.

Walsh, a retired Canadian, travelled to the US on a short trip in the summer of 2022 to take advantage of the re-opened border. Upon her return to Canada, she presented a vaccine certificate to the border agents. 

The agents refused to accept her certificate and demanded Walsh use the ArriveCAN app. When she refused, border agents issued her a ticket and ordered her into 14-day quarantine, despite being a "vaccinated traveller."

After the incident, the Public Health Agency of Canada sent agents to her residence during this period to check her compliance with quarantine.

She also received a $6,255 fine for not complying with the requirement on a separate occasion.

The federal government 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. 

Though Ottawa made it optional at the onset, it eventually became a prerequisite for air and land travel on July 5, 2021, when the federal government required all travellers to disclose their COVID vaccination status. 

Those who failed or refused to use ArriveCAN could have faced a maximum fine of $750,000 or be imprisoned for up to 6 months, or both.

The Justice Centre said its clients are owed monetary damages owing to the alleged unconstitutionality of the app.

True North spoke with Walsh and her lawyer, Henna Parmar, about the suit.

Walsh said, "the point of suing the government is to show that ArriveCAN was unconstitutional. Therefore it never should have been set up." 

Parmar argued that ArriveCAN laws encroached on three Charter sections, including section 8, which protects privacy.

"[The] privacy of Canadians is one of the fundamental rights which our Charter protects. 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," said Parmar.

She also believes the app also violated section 7, which provides the right to liberty, and section 9, which provides the right not to be arbitrarily detained.

"The measures required unvaccinated Canadians and Canadians who did not use ArriveCAN to quarantine in their home for 14 days."

Parmar added that the lawsuit "compels the government to justify the legality and scientific rationality of requiring Canadians to use an app that calls into question several civil liberties."

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

In late January, Trudeau admitted his government's approach to the ArriveCAN app was "highly illogical." 

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.

Constructing its software costs taxpayers $54 million, with GCstrategies typically billing the federal government 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.

The prime minister responded: "That's exactly the question I asked of the public service. This is a practice that seems highly illogical and inefficient." 

"Of course, speed was the essence during the pandemic, and helping people quickly was the essence," he added. "But there are principles we should ensure are sound moving forward."

Previous legal challenges by the Justice Centre to Ottawa's mandatory COVID travel measures failed after the Federal Court ruled quarantine hotels were constitutional.

"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. 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."

Walsh is hopeful that her lawsuit will end differently, adding: "I'm convinced that [what happened] is injustice, that justice will prevail, and I won't have to pay [the fine]."

Her case will proceed in the Federal Court at a date to be determined later.

While Ottawa ended the ArriveCAN requirement on October 1, 2022, the app still exists as an optional way for people to complete their customs and immigration declaration. 

According to the Public Health Agency of Canada (PHAC), Canadians received $14.8 million in fines last year for violating federal COVID quarantine rules. 

While law enforcement has levied $9.3 million in fines for violating provincial and federal rules, they have only collected roughly $905,000. It remains to be seen which penalties they will enforce moving forward.

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