Ruling backing hotel quarantines called `dangerous,' to be appealed

Judge grants Ottawa further powers

The legal battle over Canada's mandatory quarantine hotels is not yet over despite the Federal Court supporting the controversial rules as reasonable limits on freedoms, so much so the court also gave advanced approval for even stricter control measures.

At least 11 of the original 15 applicants objecting to the mandatory stays at government-approved hotels are appealing the decision by Paul Crampton, the court's chief justice, lawyers say.

Crampton's ruling accepts that the enforced hotel stays are, in fact, “detentions” but deemed them not “arbitrary,” and said they are justified as reasonable public health measures.

“Like times of war and other crises, pandemics call for sacrifices to save lives and avoid broad-based suffering,” Crampton said in his ruling.

“If some are unwilling to make such sacrifices, and engage in behaviour that poses a demonstrated risk to the health and safety of others, the principles of fundamental justice will not prevent the state from performing its essential function of protecting its citizens from that risk.”

The significance of both the pandemic and the restrictions was not lost on the court.

“The COVID-19 pandemic has wrought much death and suffering in Canada and abroad. This has called for extraordinary measures from our governments as well as great sacrifices by one and all,” Crampton said in the opening of his decision, released on June 18.

“Protecting us from the threat to our health and security is one of the most fundamental responsibilities of a state. However, it must do so within the bounds of law.”

A consortium of organizations and individuals complained of the extraordinary requirements on international travellers returning to Canada by air.

Under the regulations (which are now being eased for vaccinated travellers), most international air passengers must be tested for COVID-19 upon arrival in Canada and then stay at a government-approved quarantine hotel for up to three days, at their own expense, while waiting for the result. (The same rules do not apply to those driving across the border.)

Those who test negative can then quarantine for the remaining 14 days at home or another suitable place. Those who test positive must isolate for the remaining days or stay at a government quarantine facility if they don't have an ability to isolate.

A bevy of Canadians challenged the rules, claiming violations of Canadian Charter of Rights and Freedoms.

Twelve people in two lawsuits supported by the Justice Centre for Constitutional Freedoms, another lawsuit by Rebel News Network Ltd. and a Rebel employee, and a fourth by a cannabis executive, all claimed any benefits from the rules and other restrictions were not justified in a free and democratic society and that reasonable alternatives were ignored.

Crampton did not buy their arguments, argued in thousands of pages of documents and at three days of oral hearings last month.

“I have concluded that the impugned measures do not contravene the Charter, as alleged,” Crampton said.

Crampton accepted that the government's objective in enacting the rules was a rational one, namely, “reducing the introduction and further spread of COVID-19 and new variants of the virus into Canada.”

Crampton ruled that the “brief deprivation of liberty” while “not trivial” was reasonable in the face of an evolving global pandemic.

“It is not unreasonable to require those who voluntarily assume travel-related risks to pay for costs associated with their port-of-entry quarantine, especially when they incur those risks in the face of repeated government advisories and even exhortations from their Prime Minister to avoid non-essential travel,” Crampton said.

Crampton found two exceptions where the government did overreach its authority in the way it implemented the quarantine rules.

Those apply to the singular case of Nicole (Nikki) Mathis, an Edmonton pastor, who arrived in Canada with a negative COVID-19 test result that was not accepted at the airports and taken to a designated quarantine facility.

Border control officials refused to tell her where she was being taken, nor disclose the location of the facility she was at to her husband. Neither was she properly informed of her right to retain counsel during her detention.

“Those violations of Ms. Mathis' rights cannot be demonstrably justified in a free and democratic society,” Crampton said. He did not offer any individual remedy to her but noted institutional changes should ensure others do not suffer the same treatment.

Lawyers for nine of the original 12 applicants supported by the Justice Centre for Constitutional Freedoms have already filed an appeal. The lawyer for a separate but similar claim by Rebel News and Keean Bexte said his clients are also appealing.

“We do have instructions to proceed with an appeal in this matter and anticipate proceeding shortly,” said Robert Hawkes.

A lawyer for Dominic Colvin, the applicant of the remaining suit covered by Crampton's omnibus decision, could not be reached prior to deadline.

The JCCF's appeal claims Crampton made errors of both law and fact in reaching his decision. The appeal also complains of Crampton taking an additional step in his ruling that gives the federal government advance permission to impose even stricter controls.

In his ruling, Crampton noted the pandemic is not over and that new, more threatening variants could emerge and offered advanced judicial guidance.

“I consider that the principles of fundamental justice would permit the imposition of stronger border control measures,” should the health threat require it, including potential longer quarantine periods at the border, he said.

“In addition to saving more lives and considerable suffering, especially for those who would otherwise be hospitalized or experience serious symptoms over an extended period of time, such a measure might well serve other important purposes,” said Crampton.

“These include reducing the perception of some, such as the Applicants in this case, that weaker and less uniformly applied measures are unfair and do not contribute meaningfully to preventing the entry and spread of COVID-19 and Variants of Concern.”

Jay Cameron, the JCCF's litigation director, called that element of Crampton's ruling “dangerous.”

“The permissive findings of Chief Justice Paul Crampton that the principles of fundamental justice would allow the government to put in place even more restrictive measures sets a dangerous precedent,” Cameron said.

“When the state detains and forcibly confines a citizen in a federal facility, it doesn't matter if the facility is a fancy hotel, it is still a detention and a confinement, and therefore an infringement of the constitutional freedoms of Canadians. The decision of the Federal Court on this point is a judicial aberration that must be appealed.”

As of July 5, the government said Canadians and permanent residents who are fully vaccinated will not have to have a mandatory hotel stay.

PANDEMICS CALL FOR SACRIFICES TO SAVE LIVES.