Charter Compliant: COVID Travel Restrictions

Written by Daniel Standing LL.B., Editor, First Reference Inc.

COVID-19 has caused much suffering and death worldwide since its discovery in late 2019. Part of Canada’s response has been tightening restrictions on those who enter Canada by air by enacting emergency orders under the federal Quarantine Act. These measures were the focus of a wide-ranging Canadian Charter of Rights and Freedoms (Charter) attack by several applicants in the Federal Court case of Spencer v Canada (Health), 2021 FC 621 (CanLII). With two limited exceptions, Chief Justice Paul Crampton rejected the claims that the emergency orders were unconstitutional. The decision affirms Canada’s ability to take extraordinary measures in the best interests of the nation where no other reasonable solution exists. If you ever wondered what a legal spaghetti bowl of COVID-19 Charter challenges looked like, this case is worth looking into.

Background

The consolidated applications of various individuals and a media outlet at the core of this proceeding targeted the lawfulness of the COVID measures that Canada imposed on returning international air travellers. It is not known how many of these individuals knew of the restrictions at the time they decided to travel. What is clear, from reading this case, is that they were angry about them. Perhaps even furious! These measures included the requirement to be tested for COVID on arrival, and the requirement to stay at either a government-approved accommodation (“a GAA”) or at a designated quarantine facility (“a DQF”) while awaiting the test results. Those staying at a GAA do so at their own cost, while those staying at a DQF do not. In addition to arguing that the orders were outside of the government’s power to enact them, numerous provisions of the Charter were allegedly infringed, as well.

The Court’s analysis

Justice Crampton began by outlining key facts relating to the disease, including how it is transmitted, the staggering number of people who have been infected worldwide, and the specific requirements of the measures under attack in this proceeding. Here, it is explored how the court lightly jousted with each Charter argument, knocking them down one by one.

First, the Court rejected the argument that the measures violated s.6 of the Charter which guarantees the right of every citizen of Canada to enter, remain in and leave Canada. That provision is aimed at preventing exile and banishment. Here, there was no encroachment on the travellers’ membership in Canada’s national community. At most, the measures could influence people’s choices about when to travel.

Second, as to whether the measures violated the legal right to life, liberty and security of the person, Justice Crampton rejected any such argument. There was no evidence the measures were “oppressive” or caused “severe psychological harm.” The harm experienced fell short of what is required under s.7 of the Charter. In other cases, kids were taken from parents and people received critical care far too late. Those were s.7 violations. This matter was not in the same ballpark. The liberty interests at stake here were “towards the lower end of the spectrum” of what s.7 protects. There was also no evidence that the measures were arbitrary, overbroad or that their consequences were grossly disproportionate to their goal. The court pointed to convincing scientific evidence for targeting only air travellers (read the case to learn more). It did not matter whether the government’s objective could have been better achieved in other ways; the focus is on whether there is a rational connection between the goal and the limits on people’s right to liberty, and here there was.

Third, the applicants argued that the measures illegally infringed their s.8 right to be secure against unreasonable search or seizure. Justice Crompton explained how the right depends on a reasonable expectation of privacy in the place or item that is inspected or taken by the state. He quickly dispatched this argument, stating that the applicants had no reasonable expectation of privacy in the money they had to pay to stay in a GAA.

Fourth, the court considered the measures in light of s.9 of the Charter’s guarantee against arbitrary detention or imprisonment. Justice Crampton accepted that the required stayover was a detention, but he held that it was not arbitrary, and that the way it was carried out was reasonable. Therefore, there was no violation of this right.

As for the rights of arrested individuals to retain and instruct counsel without delay and to be informed of that right under s.10, only one of the applicants provided enough evidence to make out a violation of her right. Also, the judge found that the “Welcome Packages” given to arriving flyers contained language that was far too weak to satisfy this right. Upon reading these pamphlets, they came across as an amusingly patronizing inoculation to travellers for what must have been a horrible “stay” for most.

Sixth, as for the argument that the applicants’ right to the presumption of innocence had been infringed under s.11, the court sent a strong message that to argue a court hearing was required for each traveller, as the applicants did, was flawed.

Seventh, it described the subject of s.12, “cruel and unusual punishment,” in terms of being “abhorrent or intolerable to society” and “grossly disproportionate.” Then it said, “It is manifest that the requirement to stay at a GAA or a DQF for 24-72 hours cannot be described in any of these terms.”

Key takeaways

The court concluded its lengthy decision with reasons why the measures were made with the proper legal authority found in the federal Quarantine Act. The court said that even stricter measures could be possibly imposed like a longer period of quarantine at the border as long as the Quarantine Act was complied with. It ended by saying that some people may not like the rules, but if someone chooses to travel and thereby endangers others, the law will allow the state to protect its citizens. That may come as either good news or bad news to employers. While workforce health is critical during the winter months, travel restrictions devastated much of the travel industry and related enterprises. While legal challenges may be mounted in the future, some may think twice before arguing the Charter was breached.

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