Are all these COVID border measures legal?
Whatever their efficacy in fighting off COVID-19, it’s clear that Canada’s current border controls are on a scale unprecedented in modern times. Since March 25, 2020, all travellers entering Canada have been required to undergo 14 days of mandatory self-isolation, subject to fines or even arrest in the case of non-compliance. And now, incoming air travellers face mandatory confinement to a hotel paired with mandatory testing.
These policies would be inviting a cascade of Charter challenges under normal circumstances, but for now it’s all lawful under the Quarantine Act.
Rewritten after the 2003 SARS pandemic, the act extends near-dictatorial powers to government during times of public health crisis. But the question is, how long can the act guide federal policy before inviting pushback?
Like virtually all federal COVID-19 measures, mandatory hotel quarantine came about as the result of an Order in Council issued by the Prime Minister’s Office and justified by the Quarantine Act.
There are a few aspects of Canada’s border measures that don’t quite jibe with the 2005 act, most notably a section that forbids any screening technology that demands “entry into the traveller’s body of any instrument or other foreign body.” While this technically forbids the infamous “brain tickling” nasal swab, any objectors could simply be administered a gargle test.
Regardless, the Quarantine Act extends broad powers to public health authorities to indefinitely detain anyone who doesn’t follow their orders, and even to authorize “arrest without warrant.”
The Quarantine Act is no different from the Public Health (Control of Disease) Act in the U.K., or a series of quarantine-related federal regulations under United States law: All of them basically invest public health officials with powers to address a health crisis, with the only real restriction being the public pushback in the event of going too far.
“The mandated length of quarantine must be based on the best available evidence to ensure individual liberty is not restricted any longer than necessary,” reads an analysis by the Alberta Law Review Society issued in the wake of Canada’s then-unprecedented SARS quarantine measures in 2003.
The Quarantine Act is very similar to Canada’s Emergencies Act, the 1985 law that effectively allows the federal government to declare martial law (or, as the act puts it, “special temporary measures that may not be appropriate in normal times”). The Emergencies Act is very useful if, say, Russian ground forces occupy Ellesmere Island, but it can spark political blowback if used too readily.
The most notable example of this was the 1970 imposition of the War Measures Act, the predecessor to the Emergencies Act, in response to the abduction of two government officials by terrorists agitating for an independent Quebec. Nearly 500 Quebecers with even the most tenuous links to political violence were detained without bail as a result.
But while the Emergencies Act is subject to the “supervision of Parliament,” the Quarantine Act is entirely at the prime minister’s discretion. Ultimately, the only political check on the act is changing who sits in the prime minister’s chair.
Usually, government quarantines are over before any legal challenge can pick up steam, but with Quarantine Act measures related to COVID-19 now approaching their first anniversary they are beginning to attract legal scrutiny.
The Justice Centre for Constitutional Freedoms has filed an action in federal court alleging that mandatory hotel quarantine is an unwarranted violation of Section 6 of the Charter of Rights and Freedoms, which guarantees that “every citizen of Canada has the right to enter, remain in and leave Canada.”
The Centre is also the measure as a violation of Section 9, which guarantees Canadians “the right not to be arbitrarily detained or imprisoned.” As Justice Centre President John Carpay said in a recent statement, “quarantine, particularly of healthy or asymptomatic individuals, is the functional equivalent of house arrest and the Justice Centre will not allow it to continue unchallenged,”
Given the disproportionate way hotel quarantine is being applied, there’s also the possibility that the policy runs afoul of Section 15, which bars discrimination. Mandatory hotel quarantine weirdly only applies to arriving air travellers; anybody entering Canada by road or rail need only present a negative COVID-19 test. That could become relevant if any group of a particular “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” disproportionately relies on air travel to enter Canada.
If the challenge ever found its way before a judge, the Constitutionality of mandatory hotel quarantine could ultimately hinge on whether the public health situation is dire enough to justify the continued use of the Quarantine Act.
Canada’s Constitution allows governments to violate the rights of its citizens, but it has to be based on a “pressing and substantial concern” and further a goal that is “rationally connected to the limitation imposed on an individual’s rights.” When this power has previously been tested before the Supreme Court, governments have even been given leeway to overreact — providing the overreaction was rational given the circumstances.
As the Court put it, quarantine measures may pass legal muster if they are governed “by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view.”
As Cara Zweibel with the Canadian Civil Liberties Association told the National Post, “the government bears the burden of justifying the restrictions.”