The Federal Government implemented measures that allowed them to forcibly confine Canadians they deemed “unable to quarantine” in government-approved facilities. In January 2021, Canadians who did not have proof of a negative PCR test upon entry to Canada were considered “unable to quarantine.”

One of the Appellants, Mr. Steven Duesing, is a Canadian and resident of Ontario. He went to the U.S. on December 25, 2020, to visit his girlfriend, whom he had not seen for 7 months. The measures were not in effect when he departed. However, when he returned on January 31, 2021, border agents informed him he would have to take a PCR test and quarantine in a designated quarantine facility for 48-72 hours for his test to come back. Mr. Duesing’s passport was confiscated until he agreed to go to the quarantine facility, and he was told he would be arrested if he did not comply.

Another Appellant, Pastor Nicole Mathis, a Canadian and resident of Calgary, returned to Canada by air on January 26, 2021. She had called ahead to confirm the requirements and was told that she needed a negative Covid-19 test (not specifically a PCR test) and to quarantine at home for 14 days. Accordingly, she took an antigen test. However upon arrival at the airport she was told that the antigen test was not acceptable and that she would need to take a PCR test and quarantine at the government facility until she obtained a negative test result. Pastor Mathis was also told that police would apprehend her and take her to the facility by force if she did not comply. Furthermore, police refused to tell her husband where she was being taken. The trial judge agreed that Ms. Mathis’ rights were unjustifiably violated.

On February 14, 2021, the Federal Government announced that it would require all international air travelers to quarantine in government approved hotels for three days, regardless of test status. Travelers would have to pay for these facilities out of pocket at an estimated cost of $2000 per traveler. This was often a non-refundable cost to Canadians.

The Charter challenge to the federal quarantine requirements was heard on June 1-3, 2021. While the Court found that the measures were constitutional, as a direct result of this litigation the federal government was directed to advise all travelers 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 with a focus 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, it is reported that PHAC spent $7 million to operate government-authorized hotels and $200 million to house incoming travellers at designated quarantine facilities.

Since this Auditor General of Canada report was not available at the time of trial, lawyers funded by the Justice Centre brought a motion to have it admitted at the Federal Court of Appeal. The motion will be decided the same day as the hearing on the merits.

While the Federal Court of Appeal granted the motion brought by the Applicants to expedite the appeal due to public interest, it has taken more than one year for this matter to be brought to Court.

The Federal Government has moved to strike the appeal for mootness because the measures are no longer in force. The mootness arguments will also be heard on January 17, 2023.

“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,” says 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 the mandatory use of quarantine hotels and facilities was justified in a free and democratic society.”

“The government should not be immune from breaching thousands of Canadians’ Charter rights and freedoms,” says Henna 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. The public will lose confidence in the administration of justice if the Courts shield a nationwide scheme that detains law abiding citizens and that engages several Charter rights. Especially when the evidence does not support the effectiveness of the measures. 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.