The Justice Centre filed two court actions against the government in Federal Court, in response to the actions of the Trudeau government that has forced Canadian residents into mandatory quarantine, in a quarantine hotel at their own expense, after returning from international travel. The full hearing on the constitutionality of quarantine hotels and quarantine facilities was on June 1-3, 2021.
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.
February 22nd, 2021, the government issued a new law that requires all international travellers to take a PCR test upon arrival at the airport and to quarantine at quarantine hotels 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, they may be fined, charged under the Quarantine Act and/or be directed to a quarantine facility also known as DQF. There have been reports of travellers 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. There have also been Canadians arriving home who have refused a PCR test.
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,” Ontario Peel Regional Police spokesperson Constable Akhil Mooken told the National Post.
Refusal to submit to mandatory testing
If you refuse, you may be fined, charged under the Quarantine Act and/or directed to a quarantine facility. The Justice Centre has heard from individuals who have refused the mandatory test and also refused quarantine, and were not arrested, (as far as we know nobody has been arrested yet). We have also spoken to individuals who refused and received a ticket.
If you were to be 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 with your fines and or summons.
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. Many travellers are now being told they must have a second Covid PCR test in addition to the PCR test required 72 hours before travelling under the rules of the Government. As of February 22, travellers were told they have to have to have a PCR test before boarding an airplane to return to Canada and a second Covid test on arrival, which would then force all non-exempt 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. In addition, a traveller will be given a take home test to use on the eighth day of quarantine, and is expected to use the ArriveCAN application on their cellular phones, or download the paperwork from a computer to have with them on arrival. 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 PCR 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, you may be fined, charged under the quarantine act and/or be directed to a quarantine facility. Some travellers have walked out of the airport and refused quarantine. Please see the section above on refusing testing. You could refuse to take the PCR test and/or go to the federal quarantine facility. If you choose this path, you will be in breach of the Quarantine Act, and may be issued a ticket/s with a set fine. The common amount to be fined appears to be $3,700, although the federal government has recently announced that they will increase the fines to $5000 per person. You may also be issued with a summons, which does not have a set fine amount. In that case the maximum penalty you face could be a $750,000 fine and/or six months imprisonment.
If you refuse testing and quarantine and are issued a ticket, contact the Justice Centre immediately, with a clear and legible copy of the front and back of the ticket. We will assist you.
We have not heard from any Canadian citizen who has returned to Canada and been arrested. 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. Please note, we are unable to recommend criminal lawyers. We can assist you with any tickets or fines.
Choices Available to Travellers
If you receive a ticket or a summons you will have the opportunity to attend Court and defend yourself. You will have the opportunity to explain your personal circumstances and why you chose not to comply. A judge will then decide what penalty you should receive based on your personal circumstances. Please note it is very rare for anyone to receive the maximum set penalty, which is generally reserved for the worst offenders. The process of contesting your ticket and going to court may take up to one year and possibly longer to complete.
1. 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 however they do have to present a negative PCR test taken within 72 hours of them crossing the border back to Canada rule that has been in place for air passenger arrivals since Jan. 7. In addition, a traveller will be given a take home test, to use on the eighth day of quarantine and is expected to use the ArriveCAN application on their cellular phones. 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 and or directed to attend a quarantine facility. If you are fined or ticketed, please contact the Justice Centre.
2. 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. Some Canadians have reported difficulty renting a car, however.
Some Police Departments including Peel and Alberta have stated that at this time they are not arresting people for refusing the PCR test or mandatory quarantine.
There have also been (unconfirmed) reports that people who refuse to take the PCR test or to quarantine may be tracked down by Health Canada officials and issued further tickets.
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. Those actions were heard June 1-3, 2021, before the Chief Justice of the Federal Court Justice P. Crampton.
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. (This is for land travellers only; if you don’t have a PCR test you will not be allowed to board your flight).
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 on day eight 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 and you may be directed to a quarantine facility.
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. However, we have had many people recount that their exemptions are not being honoured.
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 or a LAMP 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.
Legal Status of the Challenge
The full hearing on the constitutionality of quarantine hotels and quarantine facilities was heard June 1-3, 2021.
On June 18, 2021, the Federal Court released its ruling finding that mandatory quarantine hotels at traveller’s expense are constitutional. The Federal Court also found, however, that the constitutional rights and freedoms of Justice Centre client, Pastor Nicole Mathis, were unjustifiably infringed by authorities failure to inform the Pastor Mathis of her right to counsel upon detention, and her and her family’s right to know the name and location of the designated quarantine facility she was being taken to.
On June 30, 2021, the Justice Centre launched an appeal, at the Federal Court of Appeal, of the decision of Chief Justice Paul Crampton.
The appeal states that Justice Crampton erred in law and fact in finding that the forced detention of returning Canadians in federal facilities do not breach the Charter rights and freedoms of Canadians. The Justice Centre further asserts that the Chief Justice Paul Crampton erred in law by making findings that went beyond the scope of the evidence and the issues that were before the Court in making additional, conclusionary findings that “principles of fundamental justice would permit the imposition of stronger border control measures including longer period of quarantine at the border.”
All updates to this case will be posted here. Please check back as needed.
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.