TORONTO, ON: The Justice Centre for Constitutional Freedoms announces that the Federal Court will be hearing arguments today on whether the challenged constitutional validity of the government’s mandatory requirement for travellers to use the ArriveCAN app to enter Canada during the Covid-19 pandemic can proceed, despite the ArriveCAN requirement no longer being mandatory.
On December 20, 2021, the Federal Government required Canadians who were unvaccinated, or who were vaccinated but did not use ArriveCAN, to undergo testing and mandatory quarantine upon returning to Canada.
The Applicants in the constitutional challenge are Canadians who refused to disclose their vaccination status via the ArriveCAN app, asserting the privacy and constitutional rights. Many of the Applicants have received fines of up to $8,500 and are still facing prosecution on those fines.
On August 24, 2022, they filed an application that challenged the constitutionality of ArriveCAN. Soon after, the Government brought a motion to strike the Applicants’ case on the basis that it is moot since on September 30, 2022, the Federal Government dropped the ArriveCAN requirement. On March 16, 2023, an associate judge of the Federal Court dismissed the constitutional challenge, holding that there were no live issues for the Court to consider. Further, the Court decided not to exercise its discretion to hear moot cases.
The hearing today seeks to reverse this decision and a Judge of the Federal Court order that the constitutional challenge be heard on its merits. Lawyers for the Applicants are arguing that a decision from the Federal Court will swiftly resolve the constitutional arguments that would otherwise clog lower courts, where prosecution of Canadians who did not use the ArriveCAN app are proceeding across the country.
“We believe this case is not moot as seven of the Applicants still face outstanding charges and fines as a result of refusing to use ArriveCAN or to disclose their private medical information,” stated Ms. Sayeh Hassan, counsel on this case. “A finding on the constitutionality of this case would have a direct impact on the rights of these impacted Canadians, and the many others they represent.”
