Feb 22nd, 2021
The Justice Centre has filed two court actions against the government in Federal Court, in response to news that the Trudeau government will force Canadian residents into mandatory quarantine, in a hotel at their own expense, after returning from international travel.
The issue of mandatory COVID tests to enter Canada
The question of legality of mandatory COVID tests to enter Canada as a Canadian citizen has not been decided by a court. A court could rule the Canadian government has the right to require individuals to show they are healthy before entering Canada, however it is not clear whether this would be considered constitutional for Canadian citizens, if challenged legally on Charter grounds. These are unprecedented times.
Effective midnight on January 7, 2021, federal government made an interim order under Transport Canada that proof of a negative Covid laboratory test result must be presented to the airline prior to boarding a flight to Canada. The test must be conducted within 72 hours of the traveller’s scheduled time of departure to Canada. It must be a molecular test (PCR) or LAMP test and antigen tests (blood) are not accepted. Children who are under the age of five on the day of their travel (so up until one day before their 5th birthday) are not required to have a negative test. The new announcement made on February 12, 2021 indicates Canadians will be forced to have a second test on arrival and be quarantined three days in a federal facility at their expense, while waiting for the results.
Returning travelers who don’t want to be forced to do a COVID test
The Justice Centre appreciates the reluctance to submit to a PCR test. We are also concerned with the accuracy of the test and the rate of false positives. These tests are being challenged in court as part of our legal challenges against in Manitoba, BC and Alberta.
In January 2021, the government issued a new law that requires all international travellers to quarantine at federal facilities pending a negative PCR test result, at their own expense. As it stands if a Canadian citizen was to arrive at any airport in Canada and refused a PCR test, it is unclear what will happen. There have been reports of travelers walking out of the airport and refusing quarantine. Prominent anti-lockdown advocate Chris Sky posted a video of himself and police at the airport when he arrived from Turkey, and he refused to be taken to a federal quarantine hotel.
An employee of the Calgary Police Service has told the Justice Centre that Calgary Police will not be arresting people or enforcing the federal quarantine order.
“Unless there are some serious or aggravating circumstances, where the public safety is at risk, we are not … detaining individuals who are not complying with the regulations under the Quarantine Act,” Peel Regional Police spokesperson Constable Akhil Mooken told the National Post.
Refusal to submit to mandatory testing
If you refuse, you may be arrested. The Justice Centre has heard from individuals who have refused the mandatory test and also refused quarantine, and were not arrested. We have also spoken to individuals who refused and received a ticket. Once arrested you WILL have the right to speak to counsel, the right to be taken before a court within 24 hours and the right to reasonable bail. If this is the route you choose we would highly recommend that you retain a local criminal defence lawyer BEFORE you arrive in Canada so that you can contact them immediately if you get arrested. In this way, your lawyer will be able to assert your rights for you.
Please contact the Justice Centre if you are arrested or forced into quarantine against your will, in addition to the local criminal lawyer, as we can assist you after the fact.
Returning to Canada under these new rules
There have been reports of number of people with negative test results being taken to federal facilities, but it appears they did not have the correct Covid test. Travellers arriving in Toronto, are now being told they must have a second Covid test in addition to the one required 72 hours before traveller under the rules of the Doug Ford government. The government has further said by February 22, travellers will have to have a test before boarding an airplane to return to Canada and a second Covid test on arrival, which would then force virtually all travellers into a mandatory federal hotel quarantine at their own expense.”
Passengers who test negative can leave and finish the rest of their 14-day quarantine at home,” CBC reported on February 7. 2021. Those who test positive will reportedly be taken to a federal quarantine facility and kept there for up to 14 days.
Overview of choices for returning travellers
- Arrive with the mandated Covid test within 72 hours of flight arrival and comply voluntarily with any additional testing and quarantine in the federal facility (hotel) , at a cost of $2000 per person, and hopefully be out of quarantine in 3 days. In this scenario, in our legal opinion this process has completely suspended all Charter rights including right to counsel, right to appear in court within a reasonable time and right to reasonable bail.
- If you refuse testing,it is not clear what will happen. Some travellers have walked out of the airport and refused quarantine. Please see the section above on refusing testing
- Refuse testing and quarantine and if issued a ticket, contact the Justice Centre immediately, with a copy of the front and back of the ticket. We will assist you.
- If arrested, you WILL have the right to speak to counsel, the right to be taken before a court within 24 hours and the right to get reasonable bail. If this is the route you choose we would highly recommend that you retain a local criminal defence lawyer BEFORE you arrive in Canada so that you can contact them immediately if you get arrested. In this way, you will have a lawyer who will be able to assert your rights for you at the time of detention. Then please contact the Justice Centre.
- Arrive by land. The federal government has stated they have no immediate plans to force non-essential travellers entering Canada by land to spend part of their quarantine in a hotel at their own expense. at this point, the only new requirement that non-essential land travellers will soon face is to show proof of a negative Covid test at the border — a rule that has been in place for air passenger arrivals since Jan. 7. Although the Canada-U.S. land border is closed to non-essential travel during the pandemic, Canadian leisure travellers can still fly to the United States, ship their cars over, and return home by any mode of transport. The federal government has stated travellers arriving by land without a PCR test may be fined up to $3000/day. If you are fined or ticketed, please contact the Justice Centre.
- Fly to the nearest US border point, obtain transportation, cross the border by vehicle and drive home, with the same considerations as outlined above, arrival by land.
If you are detained, you have the right to have your Detention Order reviewed
Contact the Justice Centre for immediate assistance if you are currently detained or in forced hotel quarantine. Section 29 of the Quarantine Act gives anyone who has been detained the right to have their detention reviewed. Section 29(1) of the Act clearly states that the quarantine officer must immediately advise anyone who is detained under Section 28 of the Act that they have a right to have their detention reviewed. Unfortunately quarantine officers have not been complying with Section 29 and have not been informing travellers that they have a right to have their detention reviewed.
If you are detained you have the right to request a review of your detention which you can do by informing the quarantine officer that you would like your detention reviewed under s.29 of the Quarantine Act and then preparing a written request, outlining the circumstances of your travel, any negative covid tests you have taken, your current health situation and any other reasons why you believe you should not be detained. Once you’ve completed your request you must provide it to the quarantine officer who is obligated by the Quarantine Act to provide your review request to a review officer immediately. The review officer must review your detention request within 48 hours.
If you need assistance drafting your review request AND YOU ARE CURRENTLY IN QUARANTINE, please contact the Justice Centre. You will need to provide details of when you were put into quarantine, where you were taken, how long you have been there, the circumstances that led to your detainment, when you arrived in Canada, and all other relevant details in your request for our assistance.
Please see section 29 of the Act for your reference: Quarantine Act (justice.gc.ca)
We first issued a news release outlining the situation, and then a legal demand letter to the Government demanding that they stop this practice immediately and release anyone they may be currently holding in federal facilities. The Trudeau government has decided to proceed with this forced confinement of travellers and the Justice Centre filed two court actions against the government in Federal Court.. The legal actions will be heard in Federal Court.
Trudeau also announced all Canadian airlines had agreed to cancel all the flights to ‘sun and sand destinations’ until the end of April, including Mexico and the Caribbean. “We all agree that now is just not the time to be flying,” Trudeau said.
However, not all Canadians agree. The Justice Centre has received thousands of emails since the federal government announced that Canadians returning to the country, regardless of their reason for travel, will be forced into mandatory quarantine, in a hotel at their own expense of $2000 for a three day stay.
The government began requiring all people arriving in Canada by air to show a negative PCR-based Covid test in early January.
Prime Minister Justin Trudeau announced February 9 that anyone arriving at a land border with the U.S. after February 15 will be required to have taken a COVID-19 test 72 hours before seeking entry.
According to Global News, “lack of a negative test won’t necessarily prevent people from entering the country. Should Canadians or permanent residents not be able to provide that test result, they could face “severe penalties,” including fines of up to $3,000 per person. In one case reported in the news, a mother and her children were fined $18,000 and sent to a quarantine site for presenting a 2 hour-expired Covid test at the border.
Trudeau said his government will also be implementing new measures to ensure “extensive follow up by Health Canada” to ensure they are getting tested and properly quarantining. “It’s not legal to refuse entry to a Canadian who wants to come home. That’s the major difference between land borders and air borders. You can prevent someone from boarding a flight in Miami or elsewhere, you can’t prevent someone standing at a land border crossing from coming into Canada, because technically they’re already on Canadian soil,” Trudeau said to reporters.”
It has been stated by the government that beginning Feb. 22, travellers entering Canada at the land border would be required to take a COVID-19 molecular test on arrival as well as toward the end of their 14-day quarantine. However, from what we know right now, if a Canadian citizen or permanent resident shows up at the land border without a negative test, officials cannot deny you entry as you are a Canadian citizen on homeland. The federal government has stated travellers could be given tickets of up to $3000 per day. You will be told you must go home and quarantine.
If you are detained or receive a ticket as a result of returning home, please contact the Justice Centre by filling out a case submission.
CBC news reported on February 23, 2021 that foreign diplomats, unaccompanied minors, truckers and patients getting treatment abroad are among the limited number of travellers who are exempt from mandatory hotel quarantine requirements when arriving in Canada by air. “Canada added the exception to the rule because it is bound by the Vienna Convention on Diplomatic Relations. The 1964 international law states that diplomats ‘shall not be liable to any form of arrest or detention.'” CBC reported.
Reports of Canadians being detained in hotels
The Justice Centre is aware that the federal government has been detaining Canadians arriving in the country by air and transporting them to a secret location, because they do not have the specific test the government mandates, a PCR test. These citizens are being held unlawfully despite not having been convicted of any offence, not having had access to a lawyer, and not having appeared before a judge. Law enforcement officers are apparently refusing to inform family members of where their loved ones are being held. The letter notes that this policy aligns with the world’s most repressive and undemocratic regimes and is totally unacceptable. The Justice Centre is actively working with and representing travellers who have been unlawfully detained in the court action.
Violation of Charter rights
It is our legal opinion that the government’s arrest and detention of Canadians in this fashion is unlawful and unconstitutional, and we will demand the immediate release of any Canadian currently being so detained, permitting them to continue any necessary isolation protocols in their personal residences.
This is not China or Cuba, or Chile under Pinochet, or Spain under Franco, or theocratic Iran. The Justice Centre is not prepared to permit a democratically elected government to turn Canada into a repressive replica of countries that have no respect for human rights and civil liberties. The Charter enshrines the protection and guarantee of individual rights and freedoms, such as the rights to liberty, mobility, and privacy, into our Constitution. All government orders, including emergency orders, must comply with the Charter by not infringing any of the rights protected thereunder, unless doing so can be demonstrably justified in a free and democratic society according to law.
Government Orders already mandate that, regardless of a negative COVID test result, any person entering Canada must quarantine for 14 days on arrival. In fact, they must submit a 14-day quarantine plan to a government official, which is subject to the discretion of the said official. This discretion is subjective and without parameters. Quarantine, particularly of healthy or asymptomatic individuals, is the functional equivalent of house arrest and the Justice Centre will not allow it to continue unchallenged.
Are provincial travel restrictions legal?
Border restrictions between provinces as a result of COVID are unprecedented and very likely unconstitutional. These closures are not within the power of the provincial government. Only the federal government has a general power over national travel. The Charter Section 6 guarantees mobility rights, plus the right of citizens to enter, stay in, and leave Canada, and to live anywhere in Canada. Ultimately, those who are ticketed for traveling between provinces will have to fight the matter in court, and this is an area where contacting the Justice Centre for assistance and legal advice is recommended.
The issue of travel restrictions in New Brunswick
The violation of Canadians’ mobility rights, protected under section 6 of the Charter, is a matter of serious concern to the Justice Centre.
Unfortunately, this has been challenged in court in Newfoundland with a negative outcome. We are considering potential involvement in an appeal of the Newfoundland decision, and we are also looking at bringing other legal challenges to these kinds of restrictions in different provinces, including New Brunswick.
To start a new court application in New Brunswick on this issue would require a significant expenditure of legal resources. Currently, our growing team of lawyers is working overcapacity on numerous files and court challenges. As a registered charity reliant entirely on voluntary donations from Canadians, we can only take on so many cases. Providing donation support increases our capacity, and we hope to litigate this issue when resources so allow. At this time, we do not have the capacity to bring legal action in New Brunswick.
Returning to Canada in a few months
If you can stay where you are for the time being, we do suggest that. Watch how the situation develops in the coming weeks as we appear in Court. Review this page regularly for updated information.
What can be done by the public
Canadian citizens who are concerned about this government decision can email the media, the federal Minister of Transport and the Prime Minister of Canada to express their strong disapproval. We also suggest individuals contact the Minister of Health, and the Minister of Public Safety as these orders seem to be arising out of these departments. Perhaps many thousands of letters would convince the government this is a violation of people’s rights and a foolhardy endeavor.
Please consider a donation
You can donate specifically to our legal action to fight this forced quarantine. As a public interest, non-partisan law firm and registered charity, the Justice Centre provides legal representation free of charge to protect the constitutional freedoms of all Canadians. We take on as many cases as we can, with the funding we have. The Justice Centre operates entirely with voluntary donations from freedom-minded Canadians. We do not ask for or receive government funding. You can indicate on your donation the funds are for the mandatory travel quarantine litigation.
When are you filing legal action?
Legal action has been filed. The Justice Centre represents at least 12 applicants in this comprehensive action and it has required hundreds of hours of time to gather and review evidence, interview witnesses, conduct detailed legal research, and prepare legal documents.
How can I join the legal action?
The Justice Centre can only take on a fraction of the hundreds of cases that are submitted to us each year. Since March 2020 with COVID and increasing government restrictions, we have significantly expanded our legal team to try and meet demand. However, we must still turn down many cases.
Each court case requires at least dozens, and often hundreds, of hours of time to gather and review evidence, conduct detailed legal research, prepare legal documents, conduct necessary cross-examinations and give oral arguments. We do not undertake class action lawsuits. Our legal action is targeted and specific, and it may involve multiple plaintiffs (referred to as Applicants). The Justice Centre sues for rights and freedoms, not for monetary awards.
To be considered for the action against the federal government on forced quarantine and PCR tests, send us an email with all of the following questions answered:
- Your name, address, phone number and email address
- When do you expect to be traveling back to Canada?
- When did you leave?
- Have you already been taken into custody or subject to quarantine? Give us the details of what happened, where you were taken, how long you were held, and anything that was said to you.
- Tell us about yourself and why you have traveled (or will be travelling), if it was for work, and who was traveling with you (ie, spouse, partner, children, parents).
- Please tell us if you have any specific health, religious, family, lifestyle, or work concerns that would be affected if you were subject to federal mandatory quarantine (Examples: I am returning and have a surgery date. I have special dietary needs due to religion or allergies.)
- Are you prepared to be part of our legal action, which means being named on our application and provide us with your written story in affidavit form telling of your experiences coming into Canada?
- Do you understand that our services are free of charge and that we rely on private donations only?
- PLEASE USE SUBJECT: Join Travel Lawsuit
Our team reviews every submission and will contact you if able to offer legal expertise or assistance. Due to an overwhelming amount of email, if we are unable to offer help, we may not be able to provide you with a personal response.
All updates to this case will be posted here. Please check back as needed.