ArriveCAN ticket case dismissed, but Charter rights remain in limbo

MISSISSAUGA, ON: The Justice Centre is pleased to announce that the charge against Scott Bennett for not using the ArriveCAN app has been dismissed. An officer for the Public Health Agency of Canada, who was to be a witness at trial, failed to appear at the Ontario Court of Justice. So, on January 16, 2024, the public prosecutor withdrew all charges.

Returning from a trip abroad on July 12, 2022, Mr. Bennett was issued a ticket at the Pearson International Airport for not using the controversial ArriveCAN app to disclose his Covid vaccination status. He filled in the back of the ticket, requesting an early resolution meeting with the prosecutor. Legal counsel, supported by the Justice Centre, attended that meeting and informed the prosecutor that they intended to raise Charter issues to defend Mr. Bennett against the prosecution. In particular, Charter section 8 prohibits unjustified search and seizure, and Charter section 9 prohibits arbitrary arrest and detention. The defence was prepared to argue that being forced to disclose vaccination status violates Charter section 8, and that the quarantine mandate violates Charter section 9.

Mr. Bennett then received a trial notice that his case was to be heard at the Mississauga Provincial Offenses Court – usually reserved for traffic tickets with fines of less than $1,000. That court set the trial date without input from the defence. If that trial had proceeded, Mr. Bennett would have had only a few minutes to present his Charter arguments. His counsel filed a Notice of Constitutional Question on December 20, 2023, restating their intention to raise section 8 and 9 Charter issues, and then filed a motion to adjourn to trial. This would have allowed the defense enough time to fully argue the Charter issues. The January 2024 court date was then set.

But when that day came, there was no witness for the prosecution. As a result, the charge against Mr. Bennett was dismissed. 

In 2022, Mr. Bennett was one of 11 applicants requesting a judicial review, supported by the Justice Centre, that challenged the constitutionality of the ArriveCAN app in Yates v. Attorney General of Canada. The federal policy of requiring Canadians to use the ArriveCAN app when returning to Canada was discontinued on September 30, 2022. The Federal Government then brought a motion to dismiss the case for mootness (irrelevance), which the court granted. The decision to dismiss the challenge to ArriveCAN for mootness was affirmed by the Federal Court of Appeal in July 2023, although the Court also ruled that Canadians could still pursue constitutional challenges when fighting their ArriveCAN tickets. That’s what Mr. Bennett had hoped to do, but the prosecution witness failed to appear.

Chris Fleury, counsel for Mr. Bennett, stated, “Mr. Bennett is obviously thrilled with this outcome, which is very positive for him personally. At the same time, we are both disappointed that the constitutionality of the Federal Government’s decision to detain citizens based on their vaccination status may never see judicial scrutiny. Tomorrow morning, the Federal Government could make it mandatory for all returning Canadians to use ArriveCAN, and there would be no court ruling on the books about whether this mandatory requirement complies with the Charter.”

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