As stated in the case of Divito v. Canada, section 6(1) of the Charter protects the right of every citizen to enter, remain in, and leave Canada, and it is recognized as among the most cherished rights of citizenship. The Supreme Court stated this at paragraph 1:

ABELLA J. — Mobility rights are protected by s. 6 of the Canadian Charter of Rights and Freedoms.  These include the right in s. 6(1) of every citizen to enter, remain in, and leave Canada. They are among the most cherished rights of citizenship (Divito v Canada [2013] S.C.C. 47).

The Supreme Court continued, stating that the “right to have rights” cannot be exercised without the ability to enter one’s country of citizenship, and thus the right of a Canadian citizen to enter and remain in Canada is a fundamental right associated with citizenship. The Court provided this at paragraph 21:

“The protection for citizens in s. 6(1), like most modern human rights protections, had its origins in the cataclysmic rights violations of WWII.  Writing in the aftermath of that war about her own experience, Hannah Arendt observed that a “right to have rights” flows from citizenship and belonging to a distinct national community: The Origins of Totalitarianism (new ed. 1967), at p. 296; Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (2012), at p. 5.  Without the ability to enter one’s country of citizenship, the “right to have rights” cannot be fully exercised. The right of a Canadian citizen to enter and to remain in Canada is therefore a fundamental right associated with citizenship.”

A legal argument could be made that, while the mandatory use of ArriveCAN did not technically prevent Canadians from entering Canada, they were still subject to egregious fines and a 14-day quarantine upon entry if they did not use ArriveCAN. This caused many Canadians to experience undue hardship when entering their own country.

Section 7 protects both liberty and security of the person. Both liberty and security of person include the right to reasonable privacy.

Privacy: Many Canadians are concerned about being compelled to provide private medical information to non-medical practitioners as part of the requirement to use ArriveCAN. The Supreme Court of Canada has recognized that Canadians have a right to reasonable privacy, which includes medical privacy. A government program that compels Canadians to divulge private medical information under threat of penal consequences arguably engages section 7 rights under the Charter, including the right to privacy.

Detention: One of the consequences of refusing to use ArriveCAN was being forced into a 14-day quarantine–essentially, house arrest. This was true of individuals who were fully vaccinated for COVID-19, which makes it clear that the decision to force Canadians into a 14-day quarantine was not based in health and safety concerns. Perhaps it was an attempt to punish those who opposed the mandatory use of the digital ID program and of divulging their private medical information.

Arguably these measures were arbitrary due to widely accepted evidence that the COVID-19 vaccines being administered at the time did not stop transmission, and those who were vaccinated were just as likely to transmit COVID-19 as those who were not. The 14-day quarantine requirement also applied to individuals who attempted to cross the US land border and were turned away due to vaccination status, demonstrating the arbitrariness of the measures.

Section 8 | Right to be free from Unreasonable Search and Seizure
Canadians have the right to not be searched unreasonably. Canadian courts have consistently held that medical information is one of the most protected forms of information and has a very high reasonable expectation of privacy (REP).

It is arguable that being forced to disclose one’s private medical information (e.g., COVID-19 vaccination status) will be considered a search as contemplated by section 8 of the Charter. A search under section 8 is defined as “state action that intrudes on an individual’s reasonable expectation of privacy (Hunter v Southam [1984] 2 S.C.R. 145). Once the individual has established that the government action intrudes on the individual’s right to reasonable expectation of privacy, the onus to demonstrate why government interest supersedes the individual’s privacy rights shifts to the state (R v Collins [1987] 1 S.C.R. 265). Medical information has been consistently held to be one of the most private forms of information, and it is afforded robust protection (R v Plant at 293; R v Cole [2012] S.C.C. 53).

While reasonable expectation of privacy is lower at the border (due to national security issues) Canadian courts have recognized (2020 A.B.C. 383) that electronic devices have a high degree of expectation of privacy because of the highly sensitive core biographical information that can be extracted from them. Some factors relevant for considering the reasonableness of the expectation of privacy include: possession, ownership or control of the property searched (R v Edwards [1986] 1 S.C.R. 128), private nature of the subject matter searched (Cole) and place where search occurred (Marakah). These factors touch on the personal and territorial privacy concerns, while the subject matter here concerns informational privacy.

In Canada the law has always held that medical information is at the core of biographical personal information and is granted a very high privacy interest. In R v Plant, Sopinka J. held that

…s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual (R v Plant [1993] 3 S.C.R. 281).

It must be remembered that the reasoning behind lowered REP at the border is so that the state can achieve its legitimate objectives, namely national security. The state cannot exploit this lowered REP for improper purposes that have nothing to do with state security and then argue that there is no REP because it is lowered at the border. ArriveCAN is a good example of the kind of information (medical information) that has nothing to do with national security. To the extent that vaccination status may be related to public health, the fact that non-electronic versions of proof-of-vaccination were not accepted, and that even those who were fully vaccinated were being fined and forced to quarantine for 14 days for refusing to use ArriveCAN, significantly weakens that argument.

Section 9 of the Charter protects Canadians from being arbitrarily detained and limits governments’ ability to impose intimidating and coercive pressure on its citizens without justification. Detention under section 9 is not limited to arrest; it includes any situation where liberty is impeded by a state agent. In Spencer v. Canada (Health) the Court found that requiring Canadians to go to quarantine hotels and quarantine facilities was detention under section 9, but ultimately found that the detention was not arbitrary.
The requirement to use ArriveCAN engaged section 9 in two ways. First Canadians were being stopped at the border and were persistently being asked to upload information to the app in order to avoid fines and 14 day-quarantine requirements. Canadians were not free to refuse and leave and, in some cases, this process would take an hour or longer. When Canadians are impeded from leaving by a state agent, this can be viewed as detention.

The second type of detention was the forced 14-day quarantine as discussed in section 7. Detention under section 9 is considered arbitrary if the law under which the person is being detained is arbitrary or if the manner in which detention is being argued is arbitrary. It is argued that ArriveCAN-related detention is arbitrary due to evidence that (1) vaccinated and unvaccinated Canadians could equally transmit COVID-19, (2) vaccinated people who refused to use ArriveCAN were also forced to quarantine and fined, and (3) individuals who attempted to leave Canada were not able to do so.

Section 15(1) of the Charter states: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The mandatory use of ArriveCAN was especially challenging for the elderly and senior citizens who may not have been as up-to-date with technology as the younger generation. A potential legal argument exists that the mandatory use of ArriveCAN discriminated on the basis of age because it put the elderly at a disadvantage since many of them did not have smartphones, and overall were not as “tech-savvy”. As a result they were being fined egregiously and were being subject to the court system simply for entering their country. It must be noted that many of these Canadians were fully vaccinated as was the case of 71 years old Joanne Walsh, who was fined and forced to quarantine not because of her vaccination status, but because she did not want to use ArriveCAN which she believed invaded her privacy.