Constitutional challenge of Canada’s mandatory use of ArriveCAN app

Yates et al v. Canada

Constitutional challenge of Canada’s mandatory use of ArriveCAN app

Yates et al v. Canada

Posted February 27, 2023:

The Justice Centre heard from thousands of Canadians who were negatively impacted by the federal government’s mandatory requirement to use the ArriveCan phone app for re-entry into Canada. In response, on August 24th, 2022, a constitutional challenge was filed in the Federal Court of Canada on behalf of 11 representative Canadians who were either fined or ordered to quarantine for not using the ArriveCAN app. The lawsuit includes a Notice of Application which asks for declarations of unconstitutionality and a Statement of Claim requesting Charter damages for the Applicants.

The Applicants involved in this legal challenge had received fines of up to $8,500 each and some had been coerced into disclosing private medical information via ArriveCAN. This ongoing legal challenge seeks a declaration that the mandatory use of ArriveCAN and the forced quarantine of those who refused to use it is unconstitutional.

ArriveCAN was initially launched in April 2020 as an ostensible pandemic management tool. The federal government claimed that it would streamline the border-crossing process by allowing travelers to upload their quarantine details. Eventually, ArriveCAN’s use became mandatory for air and land travelers and by July 5, 2021, the federal government required all travelers to disclose their Covid-19 vaccination status using the software. Travelers who failed to use ArriveCAN could potentially face a maximum fine of $750,000 or be imprisoned for up to 6 months, or both.

While some of the plaintiffs were willing to disclose their vaccination status through other means, they all shared privacy concerns with respect to ArriveCAN potentially sharing their collected personal medical information widely with other government departments and agencies, police forces, and even other countries.

ArriveCan was initially implemented in April 2020 to force Canadian citizens returning home to submit quarantine plans due to Covid. It was mandated for air travelers on November 21, 2020. In February 2021, the federal government mandated ArriveCan for all land travelers, while the US-Canada land border was still closed. After the Covid vaccine rollouts, travelers were required to upload their vaccination certificates onto the ArriveCAN app.

ArriveCAN suffered a significant glitch in July 2022, which resulted in the government ordering 10,000 people to quarantine, despite uploading vaccine certificates. It took the federal government 12 days to inform those affected about the glitch.

As late as August 30, 2022 the Minister of Transport claimed that ArriveCAN improves efficiency, despite its mandatory usage being enacted under emergency orders to prevent a public health crisis. Significant delays were caused by traveler’s experiences with Canadian Border Services Agency (CBSA) officers having to troubleshoot issues with the use of or non-compliance of ArriveCAN. In July 2022, Toronto Pearson International Airport was rated the worst airport in the world in terms of delay.

The Applicants:

Joanne Walsh is a retired Canadian, who resides in Burlington, Ontario. She travelled to the US on a short trip in the summer of 2022 to take advantage of the re-opened border. Upon her return to Canada, she presented a vaccine certificate to the border agents. The agents refused to accept this certificate and demanded Ms. Walsh use the ArriveCAN app. When she refused, border agents issued her a ticket and ordered her into 14-day quarantine, despite the fact she was a “vaccinated traveler” (see video of incident here. Video source: True North). Thereafter, the Public Health Agency of Canada sent agents to her residence during this period to check her compliance with quarantine.

Matthew Leccese, one of the applicants, went to the United States for 25 minutes to pick up some parts for his vehicle. Upon his return, the Canadian Border Services Agency (CBSA) demanded that he submit his vaccination certificate via ArriveCAN. Mr. Leccese refused because he had privacy concerns with ArriveCAN, but offered to present his vaccination certificate. CBSA refused to accept his paper certificate and issued him a ticket for $7,210 for not using ArriveCAN.

Alexander Macdonald, another applicant, attempted to cross the U.S. border in April 2022. He was refused entry by U.S. border agents and was allowed to return to Canada without issue. He tried to cross the U.S. border again in July 2022 and was again denied entry and returned to the Canadian side of the border. This time a CBSA agent ordered Mr. Macdonald to download ArriveCAN and submit to the 14-day quarantine despite never having set foot in the U.S.

Amanda Yates returned to Canada via a land crossing. Her husband used ArriveCAN on their behalf, but a glitch in the system sent them to secondary screening. She refused to disclose her vaccination status and was fined and required to quarantine for 14 days.  Her husband did disclose his vaccination status, and was not required to quarantine, despite living in the same house with Ms. Yates.

Patric Laroche and Jennifer Harrison are married, hard-working truck drivers who refused to use ArriveCAN to disclose their vaccination status due to privacy concerns. They were both issued fines in the amount of $8,550 each and ordered to quarantine for 14 days.

Victor Andronache left Canada in early July of 2022 to attend his grandfather’s funeral in Romania. He returned to Canada via Pearson International Airport (“Pearson”) on July 12, 2022, and did not fill out the ArriveCAN app due to privacy concerns. Upon arrival at Pearson, he was further directed by CBSA agents to fill out ArriveCAN. When he further refused, both police and security were called, and he was directed to PHAC agents. Mr. Andronache repeatedly asked whether there was a paper alternative to ArriveCAN and was told there was no alternative. PHAC agents continued to ask questions about Mr. Andronache’s vaccination status, which he refused to answer. They also continued to insist that he must download ArriveCAN on his phone, or else he would not be allowed to leave. At one point Mr. Andronache started experiencing uncontrollable nervous tremors all over his body, arms, and legs and started shaking uncontrollably due to stress. Due to Mr. Andronache’s physical state, having PHAC and police pressure him to download ArriveCAN, and out of the desire to be able to leave the airport, he attempted to use ArriveCAN on his phone.

Unfortunately, ArriveCAN was malfunctioning and would not allow Mr. Andronache to create an account. After demonstrating the malfunction to PHAC agents, he was directed to use the web browser on his phone to complete ArriveCAN. Eventually, he was able to fill out the information required but did not disclose his vaccination status due to privacy concerns. After being threatened with a fine by PHAC, Mr. Andronache reluctantly disclosed his vaccination status to the PHAC agents with Peel Region Police officers present. He was fined in the amount of $6255 and instructed to quarantine for 14 days.

Scott Bennett had a medical exemption for Covid-19 vaccines due to a medical contraindication. However, upon his return from a trip via Pearson airport on July 12, 2022, he was told by a CBSA agent to use ArriveCAN. Due to privacy concerns, he refused but provided them with the custom declaration form he had completed. This was not satisfactory, and he was fined $6,255.

Darlene Thompson returned from the United States to Canada on July 17, 2022 at a land crossing in British Columbia and produced her passport for inspection. CBSA agents demanded that she also use ArriveCAN, which she refused due to privacy concerns. She was asked to disclose her vaccination status which she also refused to do due to privacy concerns. She was fined $5900 for non-compliance.

Marcel Janzen was referred to a Florida clinic by his doctor for a medical procedure. Mr. Janzen and his wife crossed the US border on April 22, 2022 and thereafter flew to Florida. After the medical procedure, Mr. Janzen and his wife flew back to North Dakota and returned to Canada via a land border on April 27, 2022. At the Canadian border they refused to use ArriveCAN or disclose their vaccination status due to privacy concerns. After being detained for over an hour by PHAC agents they were fined over $9,000 each for non-compliance. On December 2nd, 2022, the Crown informed the Janzen’s that they would not be moving forward with the charges against him and his wife.

Next Steps:

The Crown has brought a mootness motion to have the notice of application dismissed. We responded to their motion on January 30, 2023 and they replied to our response on February 16, 2023. We are currently waiting for a court decision on the mootness issues which we expect will be rendered in the next two months. If the court finds that our application is not moot, we will be moving forward with preparing our evidence, including expert evidence on privacy and effectiveness of the vaccines. If the court finds that our application is moot, we will still be able to move forward with the statement of claim asking for Charter damages. In doing so, we will still be able to raise the Charter issues since to award damages, a court would first have to find a Charter violation.

Updated May 10, 2023:

Hear from Applicant, Joanne Walsh, in her own words:

Joanne Walsh, a retired Canadian who resides in Burlington, Ontario, travelled to the US on a short trip in the summer of 2022 to take advantage of the re-opened border. Upon her return to Canada, she presented a vaccine certificate to the border agents. The agents refused to accept this paper certificate and demanded Ms. Walsh use the ArriveCAN app. When she refused, border agents issued her a $6000 ticket and ordered her into 14-day quarantine, despite the fact she was a “vaccinated traveller” (see video of incident here: Video source: True North)

Updated June 13, 2023

The Federal Court will be hearing arguments today, June 13, 2023, 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.

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.”

Updated July 20, 2023:

The Justice Centre for Constitutional Freedoms is disappointed with the Federal Court’s decision in the matter of Yates et al v. Canada, a constitutional challenge to the mandatory use of the ArriveCAN app, which was released on July 19, 2023, where the Court found no errors in the Motion Judge’s decision that the Application was moot.
The decision will be reviewed thoroughly, and an update will be provided in due course with respect to potential next steps.

Updated August 4, 2023 – Statement by Justice Centre President John Carpay:

The Justice Centre has carefully reviewed the Federal Court Decision in the constitutional challenge Yates et al v. Canada to the mandatory use of the ArriveCAN app, which the court declared moot on July 19, 2023.  The Justice Centre has come to the decision not to pursue further appeals.

Unfortunately, the Federal Court has demonstrated through this decision, as well as its mootness ruling in Peckford v. Canada, that it is not willing to consider the egregious violations of the Charter right to travel freely within Canada, and to leave and re-enter Canada freely. After abundant and extensive evidence had been tendered by both the government and by the Canadians asserting their Charter freedoms, the Federal Court has declared these challenges to be moot, even though serious constitutional issues are crying out for resolution. Given the Federal Court’s recent decisions, moving forward with further appeals is highly unlikely to produce any positive results.

We fought hard to secure justice for Joanne Walsh, Amanda Yates, and nine other Applicants, who along with many other Canadians, have suffered injustice because of the government’s mandatory requirement to use the ArriveCAN app. We regret that our decision not to pursue further appeals is the best option in these circumstances.

Despite the Federal Court’s decision to declare these important and unresolved issues moot, we are looking to potentially advance the ArriveCAN Charter challenges through the provincial courts, by defending against the tickets that Applicants have received, in the hope of avoiding further declarations of mootness. The fact that a Canadian citizen is being prosecuted for violating a law means that the law is effectively still in force, and therefore not moot.

We are grateful to the many freedom-loving Canadians who continue to support our work in nearly 200 active cases across Canada. We will continue to fight for your rights and freedoms every day, holding governments to account and fighting for freedom in the court of law as well as the court of public opinion.

Updated October 18, 2023:

Our lawyers continue to defend Canadians facing charges for not complying with the ArriveCAN requirements. They are preparing to file a constitutional challenge against the ArriveCan requirement in that legal context where the courts will not be able to continue to dismiss the constitution issues as “moot.”

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