Spencer v. Canada (Health)

Spencer v. Canada (Health)
Court (s) Database
Federal Court Decisions
Date
2021-06-18
Neutral citation
2021 FC 621
File numbers
T-340-21, T-341-21, T-366-21, T-480-21
Notes
A correction was made on December 13, 2021 A correction was made on October 6, 2022
Decision Content
Date: 20210618
Dockets: T-340-21
T-341-21
T-366-21
T-480-21
Citation: 2021 FC 621
Ottawa, Ontario, June 18, 2021
PRESENT: THE CHIEF JUSTICE
Docket: T-340-21
BETWEEN:
BARBARA SPENCER, SABRY BELHOUCHET, BLAIN GOWING, DENNIS WARD, REID NEHRING, CINDY CRANE, DENISE THOMSON, NORMAN THOMSON, JORDAN HAMMOND, AND MICHEL LAFONTAINE
Applicants
and
CANADA (MINISTER OF HEALTH) AND THE ATTORNEY GENERAL OF CANADA
Respondents
Docket: T-341-21
AND BETWEEN:
DOMINIC COLVIN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-366-21
AND BETWEEN:
STEVEN DUESING AND NICOLE MATHIS
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-480-21
AND BETWEEN:
REBEL NEWS NETWORK LTD AND
KEEAN BEXTE
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
Table of Contents
I. Introduction 5
II. The Parties 9
A. The Applicants 9
III. COVID-19 11
IV. Relevant Orders, Legislation and Charter Provisions 13
A. Relevant Orders 13
(1) Minimizing the Risk of Exposure to COVID-19 in Canada (Quarantine, Isolation and Other Obligations), PC 2021-11 13
(2) Minimizing the Risk of Exposure to COVID-19 in Canada (Quarantine, Isolation and Other Obligations), PC 2021-75 14
(3) Subsequent Orders 17
B. Relevant Legislation 17
C. Relevant Provisions of the Charter 19
V. Evidentiary Issues 21
A. Invocation of Cabinet Confidence 21
B. The Respondent’s Affiants 22
C. Media Reports & Academic Articles Tendered by the Applicants 25
D. Report Issued on the Eve of the Hearing 26
VI. Issues 27
VII. Standard of Review 28
VIII. Analysis 29
A. Do the Impugned Measures Violate any of Sections 6(1), 7, 8, 9, 10(b), 11(d), 11(e) or 12 of the Charter? 29
(1) Subsection 6(1) 29
(2) Section 7 34
(a) Security of the Person 34
(b) Right to Liberty 39
(i) Arbitrariness 40
(ii) Overbreadth 47
(iii) Gross Disproportionality 50
(iv) Section 7 - Conclusion 52
(3) Section 8 52
(4) Section 9 55
(a) Applicable Legal Principles 55
(b) The Parties’ Submissions 57
(c) Analysis 59
(5) Section 10(b) 67
(6) Sections 11(d) and (e) 70
(7) Section 12 72
B. If so, is any such Violation Demonstrably Justified in a Free and Democratic Society? 73
C. Are the Orders Containing the Impugned Measures Ultra Vires the Authority Delegated to the Governor in Council under Subsection 58(1) of the Quarantine Act? If not, are the Impugned Measures Nevertheless Unreasonable? 75
(1) Summary of the Applicants’ Submissions 75
(2) Summary of the Respondent’s Submissions 77
(3) Applicable Legal Principles 78
(4) Assessment 80
(a) Are the Impugned Measures Ultra Vires the Quarantine Act? 80
(b) Are the Impugned Measures Reasonable? 88
D. Are the Orders Containing the Impugned Measures Ultra Vires the Authority of the Federal Government under Section 91(11) of the Constitution Act, 1867? 93
(1) The RNN Applicants’ Submissions 93
(2) The Respondent’s Submissions 95
(3) Applicable Legal Principles 96
(4) Analysis 97
E. Do the Impugned Measures Violate Section 1(a) of the Canadian Bill of Rights? 102
F. Conclusion 103
Appendix 1 – Relevant Legislation 108
JUDGMENT AND REASONS
I. Introduction
[1] The COVID-19 pandemic has wrought much death and suffering in Canada and abroad. This has called for extraordinary measures from our governments as well as great sacrifices by one and all.
[2] Protecting us from the threat to our health and security is one of the most fundamental responsibilities of a state. However, it must do so within the bounds of law.
[3] At their core, the questions at issue in these consolidated Applications go to whether certain measures that have been imposed by the federal government on returning international air travellers are lawful. Those measures include requirements that non-exempt individuals be tested for COVID-19 upon their arrival in Canada [the Day 1 Test] and then stay at either a government approved accommodation [GAA] or a designated quarantine facility [DQF] for 24-72 hours while they await the results of that test. Persons who are asymptomatic upon their arrival are required to stay at a GAA, while those who display symptoms are required to stay at a DQF. Persons who stay at a GAA must do so at their own cost, which can exceed $1,000. Failure to abide by these and related requirements is subject to a fine of several thousand dollars under the Contraventions Act, SC 1992 c 47 [Contraventions Act]. A failure to comply with the Quarantine Act, SC 2005, c 20 [the Quarantine Act] could lead up to three years in prison and/or $1,000,000 in fines.
[4] Upon receiving the results of their Day 1 Test, travellers who have stayed at a GAA or a DQF are directed to “quarantine” or to “isolate” for the remainder of their first 14 days back in Canada. They may do so at their home or other “suitable place of quarantine.” Those who test negative must quarantine in accordance with their quarantine plan, whereas those who test positive must isolate in accordance with an isolation plan. However, those who do not have a “suitable” quarantine or isolation plan, as the case may be, are required to isolate at a DQF. It is also possible to voluntarily choose to take that route.
[5] The Applicants in these consolidated proceedings assert that the requirement to stay at a GAA or a DQF while they await the results of their Day 1 Test contravenes various sections of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter]. They maintain that the alleged benefits associated with this requirement and other impugned measures are not demonstrably justified in a free and democratic society, as contemplated by section 1 of the Charter. This is in part because those benefits are not proportionate to the adverse impacts associated with the alleged violations of their Charter rights. In support of this submission, the Applicants note that non-exempt international travellers who enter Canada by land are not subject to the impugned measures. Instead, they are given COVID-19 test kits to administer at their suitable place of quarantine or isolation. At the time the measures came into force, approximately 75% of all travellers arriving in Canada were exempted from the Impugned Measures.
[6] The Applicants in Court file T-480-21 further assert that the Governor in Council (in this context known as the Administrator in Council [AIC]) did not have the authority to impose the impugned measures. This is because reasonable alternatives to prevent the introduction and spread of COVID-19 were and continue to be available. Accordingly, the requirement in paragraph 58(1)(d) of the Quarantine Act that no such alternatives be available was not satisfied. Those Applicants further assert that the impugned measures infringe the exclusive jurisdiction of the provinces and are therefore beyond the authority of the federal government. Finally, those Applicants submit that certain of the impugned measures contravene section 1(a) of the Bill of Rights, SC 1960, c 44 [Bill of Rights].
[7] For the reasons that follow, and with two limited exceptions pertaining to the manner in which the impugned measures were implemented in relation to the Applicant Nicole Mathis, I have concluded that the impugned measures do not contravene the Charter, as alleged by the Applicants. Accordingly, it is not necessary to conduct the analysis contemplated by section 1 of the Charter, except in respect of the two above-noted exceptions.
[8] Those two exceptions pertained to Ms. Mathis’ rights under sections 9 and 10(b) of the Charter. In particular, they concern (i) the refusal of border control officials to disclose to Ms. Mathis and her spouse the location of the DQF to which she was being taken, and (ii) the fact that she was not properly informed of her right to retain and instruct counsel without delay. Those violations of Ms. Mathis’ rights cannot be demonstrably justified in a free and democratic society. The evidence establishes that the first of those violations has since been remedied by the requirement that travellers who are required to stay in a GAA must book their own reservation there. Therefore, they will know the location of the GAA hotel. Moreover, travellers who are required to stay in a DQF are provided with the relevant details pertaining to that facility. As to the second exception, border control officials will now be aware that they must clearly communicate the right to retain and instruct counsel in a manner that is readily understood, at the outset of the detention.
[9] I have also concluded that the impugned measures were within the authority of the AIC and were within the jurisdiction of the federal government. Finally, the impugned measures do not contravene section 1(a) of the Bill of Rights. Accordingly, these Applications will be dismissed.
[10] Given that the impugned measures are currently scheduled to expire on Monday, June 21, 2021, I am releasing this decision today solely in English. The French version will be released at the earliest possible time. I recognize that paragraph 20(1)(a) of the Official Languages Act, RSC 1985, c 31 (4th Supp) provides that any final decision issued by a federal court shall be made available simultaneously in both official languages where it determines a question of law of general public interest or importance. However, pursuant to paragraph 20(2)(b) of that legislation, where the court is of the opinion that making a decision available simultaneously in both official languages would result in a delay prejudicial to the public interest, it shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language, each version to be effective from the time the first version is effective. Having regard to the pending expiry of the impugned measures, I am of the opinion that delaying the release of this judgment (and reasons) until they are available in both official languages would occasion a delay prejudicial to the public interest. I am therefore releasing the decision immediately in English and then in French at the earliest possible time.
II. The Parties
A. The Applicants
[11] Rebel News Networks [“RNN”] is an independent news media outlet with its head offices in Toronto, Ontario. Some of its journalists regularly travel to the United States to report on current events and political issues. One of those journalists, the Applicant Keean Bexte, was required to stay at a GAA upon his return to Canada on February 28, 2021. Collectively, RNN and Mr. Bexte, who are the Applicants in Court file T-480-21, will be referred to as the “RNN Applicants”.
[12] In its written submissions, the Respondent stated that it does not accept that RNN has standing to challenge the impugned measures. However, in its oral submissions the Respondent noted that it did not bring a motion to challenge RNN’s standing. The Respondent also agreed that, as a practical matter, nothing turns on the issue of RNN’s standing because its counsel confirmed during the hearing that all of the submissions that were made on behalf of RNN were also being made on behalf of Mr. Bexte. Accordingly, as requested by the Respondent, I will refrain from making a ruling on whether RNN has standing in these proceedings.
[13] The other Applicants are all international air travellers who have been impacted by the impugned measures. The eleven Applicants in Court files T-340-21 and T-366-21 will be referred to as the “Spencer-Duesing Applicants”. Mr. Colvin is the sole Applicant in Court file T-341-21.
[14] Apart from Barbara Spencer and Cindy Crane, who are concerned about the prospect of having to quarantine at a GAA, the Applicants have all returned to Canada.
[15] At the time of their Applications, the other Applicants shared those concerns. Indeed, Ms. Thomson stated that she experienced fear and anxiety about the prospect of having to stay at a GAA. As a result, she returned to Canada two days prior to the entry into force of the GAA requirement in February. Ms. Thompson added that even after her return, she continued to experience stress about the prospect of her spouse having to stay at a GAA upon his return to the country.
[16] With the exception of Mr. Bexte and the individuals mentioned immediately below, there is no evidence that any of the Applicants ultimately stayed at a GAA or a DQF upon their arrival back in Canada.
[17] Mr. Duesing and Ms. Mathis were detained and transferred to a “federal facility” in January of this year, pursuant to provisions of an Order that expired in February. As described below, those provisions have continued to appear in subsequent Orders that have been promulgated.
[18] According to his counsel, Mr. Colvin was fined $3,000 “in lieu of an airport quarantine” upon his return to Canada in April. His counsel maintains that the determinations made on his Application “are going to be germane to the defence of [that fine].”
III. COVID-19
[19] Unless otherwise indicated, the following evidence pertaining to COVID-19 does not appear to be contested. It was provided by one of the Respondent’s affiants, Dr. Philippe Guillaume Poliquin, whose credentials are briefly discussed in Part IV below.
[20] COVID-19 is a disease caused by a coronavirus known as SARS-CoV-2. It was first detected in China in December 2019 and has since spread across the globe. It was declared a pandemic by the World Health Organization in March 2020. In the ensuing year, it was reported to have infected more than 118 million people, and to have been associated with 2.6 million deaths worldwide. In that same period, there were 899,757 infections and 22,370 deaths resulting from COVID-19 in Canada.
[21] As with other coronaviruses, SARS-CoV-2 is spread among humans primarily through human-to-human transmission. This occurs through the inhalation of infectious respiratory droplets and, in some situations, through aerosols created when an infected person coughs, sneezes, sings, shouts or talks.
[22] Some individuals infected with the virus remain asymptomatic [Asymptomatic Carriers], meaning that they show little or no symptoms and might therefore be unaware that they are infected. Despite showing no symptoms, Dr. Poliquin stated that such persons can still transmit COVID-19 to other people in their surroundings. This statement was disputed by some of the Applicants. However, they provided no evidence that contradicted Dr. Poliquin’s evidence on this matter.
[23] Individuals who are infected but have not yet begun exhibiting symptoms are known as pre-symptomatic carriers [Pre-symptomatic Carriers]. They can also spread the disease. The median incubation time, that is, the time between exposure to the virus and the development of COVID-19 symptoms, is five days. However, it is believed that symptoms can appear up to 14 days from the moment an individual has been exposed to COVID-19.
[24] The period of time during which a person can spread the disease is known as the window of communicability. This period starts in the pre-symptomatic period and usually lasts 10 days from the onset of symptoms.
[25] Like all viruses, the virus that causes COVID-19 naturally mutates over time, meaning that there will be a change in the genetic material in the virus. However, not all variants are of public health concern. It is only when a mutation causes an increase in transmissibility, an increase in virulence (severity of disease) or a decrease in effectiveness of the available diagnostics, vaccines or treatments that a variant of interest becomes a “variant of concern” [Variant of Concern]. As of January of this year, three Variants of Concern had been identified. Those were B.1.1.7 (which was first identified in the United Kingdom), B.1351 (which was first identified in South Africa), and P.1 (which was first identified in Brazil).
[26] As of February 11, 2021, all three of those Variants of Concern had been identified in Canada. Collectively, they had infected approximately 458 individuals. The Public Health Agency of Canada [PHAC] was very concerned that the increased transmissibility of those variants, and their potential resistance to immunity and vaccines, risked substantially increasing the number of infections in the country. PHAC was also concerned that this would lead to a significant increase in the number of hospitalizations and deaths, and to a potential reduction in the effectiveness of vaccines.
[27] As of March 28, 2021, the B.1.1.7 variant had infected 7,725 people in Canada, whereas B.1.351 had infected 269 and P.1 had infected 272.
IV. Relevant Orders, Legislation and Charter Provisions
A. Relevant Orders
(1) Minimizing the Risk of Exposure to COVID-19 in Canada (Quarantine, Isolation and Other Obligations), PC 2021-11 [1]
[28] Mr. Duesing and Ms. Mathis, the Applicants in Court file T-366-21, challenge certain provisions in the January Order, dated January 20, 2021 and issued by the AIC pursuant to paragraph 58(1)(d) of the Quarantine Act. Under the authority of paragraph 4(1)(a) and subsection 4(2) of that Order, Mr. Duesing and Ms. Mathis were required to quarantine in a DQF for three nights upon their return to Canada later that month. This is because they did not demonstrate that they had either a negative result for a COVID-19 molecular test taken within 72 hours of their scheduled departure for Canada, or a positive test that had been performed between 14 and 90 days prior to that time, as required by clause 1.2(1)(a)(i) of the Order. They simply had a pre-departure antigen test result. The full text of the above-mentioned provisions of the January Order is provided at Appendix 1 to these reasons. The requirement to obtain a pre-departure test is not contested in these Applications.
[29] The January Order was repealed on February 14, 2021. However, the Respondent explained during the hearing of these Applications that it did not bring a motion to strike the Application brought by Mr. Duesing and Ms. Mathis on the grounds of mootness because the above-described provisions have been included in each of the successors to the January Order, including the Order that is currently in force.
(2) Minimizing the Risk of Exposure to COVID-19 in Canada (Quarantine, Isolation and Other Obligations), PC 2021-75 [2]
[30] As a result of the continued evolution of COVID-19 the AIC repealed and replaced the January Order with the February Order on February 14, 2021. The February Order was subsequently amended on February 21, 2021. [3]
[31] The new measures in the February Order included a requirement, applicable to all non-exempt travellers returning by air or land, to undergo molecular testing at the time of their entry to Canada—i.e. the Day 1 Test—and once again later in the 14-day post-entry period, while they are in quarantine. The Applicants do not challenge that particular measure, or the prohibition on symptomatic people taking public transit.
[32] However, the Applicants challenge certain new measures that were imposed on non-exempt returning air travellers, including the following: [4]
A requirement to stay, at their own expense, at a GAA for up to 72 hours while awaiting the result of their Day 1 Test (paragraph 3(1)(a) and subsection 3(1.3));
A requirement to submit evidence electronically that they pre-booked and prepaid for that GAA (sub-clause 1.2(1)(a)(iii));
A requirement to provide the evidence described immediately above upon their entry into Canada (sub-clause 1.2(1)(a)(ii)(B));
A requirement to retain that evidence for 14 days following their return to Canada (clause 1.2(1)(b));
A requirement to include, in their quarantine plan, the address of the GAA where they plan to stay while they await the results of their Day 1 Test, as well as certain unspecified additional information applicable only to air travellers (sub-clause 1.3(a)(ii));
A requirement for travellers who are not eligible to stay in a GAA to quarantine at a DQF (subsection 4(1), 4(2) and 10(2)).
[33] Like Mr. Duesing and Ms. Mathis, the other Applicants in these consolidated proceedings also challenge the requirement to provide pre-boarding evidence that they received either a negative result for a COVID-19 molecular test taken within 72 hours of their scheduled departure for Canada, or a positive test that had been performed between 14 and 90 days prior to that time. As with the January Order, that provision was contained in clause 1.2(1)(a) of the February Order. The related provisions requiring a person who fails to provide that evidence to stay in a DQF were contained in subsections 4(1) and 4(2).
[34] In addition, the Spencer-Duesing Applicants challenge sections 5 and 11 of the February Order, which contains a list of factors to be considered in choosing a quarantine facility for the purposes of subsection 4(2) and 10(2). Those Applicants also challenge section 9, which contains a list of isolation provisions applicable to air travellers who have reasonable grounds to suspect they have COVID-19, have signs and symptoms of COVID-19 or knows that they have COVID-19. Those provisions also apply to every person who travelled with such an air traveller.
[35] Finally, the Spencer-Duesing Applicants challenge the provisions in subsection 10(1) of the February Order, which apply to persons who are considered to be unable to isolate themselves.
[36] The February Order expired on April 21, 2021. However, it appears to be common ground between the parties that the Applications have not thereby been rendered moot. This is because the above-described provisions [the Impugned Measures] have been included in each of the successors to the February Order, including the Order that is currently in force.
(3) Subsequent Orders
[37] The AIC repealed and replaced the February Order with an identically named Order (PC-2021-174) on March 19, 2021. It then repealed and replaced the March Order with PC-2021-313, on April 21, 2021. Although the March and April Orders were somewhat reorganized, the Impugned Measures continued to be included, albeit in differently numbered sections.
[38] PC-2021-313 was then repealed and replaced by PC-2021-421, an identically named Order, on May 21, 2021. Once again, that Order continues to contain the Impugned Measures. The May Order is scheduled to expire on June 21, 2021.
B. Relevant Legislation
[39] The Orders described above were made by the Governor in Council pursuant to section 58 of the Quarantine Act. That provision states as follows:
Order prohibiting entry into Canada
Interdiction d’entrer
58 (1) The Governor in Council may make an order prohibiting or subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country or a specified part of a foreign country if the Governor in Council is of the opinion that
58 (1) Le gouverneur en conseil peut, par décret, interdire ou assujettir à des conditions l’entrée au Canada de toute catégorie de personnes qui ont séjourné dans un pays étranger ou dans une région donnée d’un pays étranger s’il est d’avis :
(a) there is an outbreak of a communicable disease in the foreign country;
a) que le pays du séjour est aux prises avec l’apparition d’une maladie transmissible;
(b) the introduction or spread of the disease would pose an imminent and severe risk to public health in Canada;
b) que l’introduction ou la propagation de cette maladie présenterait un danger grave et imminent pour la santé publique au Canada;
(c) the entry of members of that class of persons into Canada may introduce or contribute to the spread of the communicable disease in Canada; and
c) que l’entrée au Canada de ces personnes favoriserait l’introduction ou la propagation de la maladie au Canada;
(d) no reasonable alternatives to prevent the introduction or spread of the disease are available.
d) qu’il n’existe aucune autre solution raisonnable permettant de prévenir l’introduction ou la propagation de la maladie au Canada.
[40] Mr. Bexte submits that the requirement for returning air travellers to pay for their stay at a GAA constituted a deprivation of his property rights under section 1(a) of the Bill of Rights. That provision states:
Recognition and declaration of rights and freedoms
Reconnaissance et déclaration des droits et libertés
1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
1 Il est par les présentes reconnu et déclaré que les droits de l’homme et les libertés fondamentales ci-après énoncés ont existé et continueront à exister pour tout individu au Canada quels que soient sa race, son origine nationale, sa couleur, sa religion ou son sexe :
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
a) le droit de l’individu à la vie, à la liberté, à la sécurité de la personne ainsi qu’à la jouissance de ses biens, et le droit de ne s’en voir privé que par l’application régulière de la loi;
[41] The Spencer-Duesing Applicants maintain that some or all of the above-mentioned “travel restrictions” are contrary to section 503 of Criminal Code, RSC 1985, c C-46 [Criminal Code], which imposes certain obligations upon “a peace officer who arrests a person with or without a warrant.”
C. Relevant Provisions of the Charter
[42] All of the Applicants maintain that the Impugned Measures violate sections 7 and 9 of the Charter. Section 7 enshrines the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 9 provides the right not to be arbitrarily detained or imprisoned.
[43] Mr. Colvin and the Spencer-Duesing Applicants also maintain that the Impugned Measures violate section 6(1) of the Charter, which provides that every citizen of Canada has the right to enter, remain in and leave Canada.
[44] The RNN Applicants further assert that the Impugned Measures violate section 8 of the Charter, which provides that everyone has the right to be secure against unreasonable search or seizure.
[45] Finally, the Spencer-Duesing Applicants submit that the Impugned Measures violate sections 10(b), 11(d), 11(e) and 12 of the Charter. Section 10(b) provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Section 11(d) stipulates that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Section 11(e) provides such persons with the right not to be denied reasonable bail without just cause. Finally, section 12 states that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[46] Each of the above-mentioned Charter provisions is reproduced in Appendix 1 to these reasons.
V. Evidentiary Issues
A. Invocation of Cabinet Confidence
[47] Pursuant to Rule 317 of the Federal Court Rules, SOR/98-106, Mr. Colvin requested the record of materials that were before the AIC when it made the February Order. He also requested copies of any non-privileged communications pertaining to any element of that Order. In response, Ms. Julie Adair, Assistant Clerk of the Privy Council, invoked Cabinet confidence on behalf of the AIC.
[48] Mr. Colvin requests that an adverse inference be drawn from this refusal to provide the requested materials. He adds that although the Respondent is entitled to claim Cabinet confidence over those materials, proceeding in such a manner is procedurally unfair and also precludes the Respondent from being able to justify the alleged infringements of the Charter, pursuant to section 1 and the test established in R v Oakes, [1986] 1 SCR 103 [Oakes].
[49] I disagree. The promulgation of subordinate legislation is a legislative act which does not attract the duty of procedural fairness: Canadian Union of Public Employees v Canada (Attorney General), 2018 FC 518 at paras 157-158 and 163 [CUPE]. In the absence of any assertion or evidence that the assertion of Cabinet confidence was improper, no adverse inference should be drawn: CUPE, above, at paras 142 and 181. With respect to section 1 of the Charter, there are other ways in which the Respondent can attempt to discharge its burden, if breaches of other sections of the Charter are established.
B. The Respondent’s Affiants
[50] In support of its response to the Applicants, the Respondent adduced affidavits from the following four senior government officials:
Kimby Barton is the Director General of the Centre for Biosecurity with PHAC. She is primarily responsible for developing and implementing border control measures to prevent the spread of infectious diseases into Canada. She was identified as being PHAC’s contact person in the Explanatory Note that accompanied each of the January Order, the February Order and its successors.
Dr. Guillaume Poliquin is the Acting Scientific Director General of the National Microbiology Laboratory [NML] within PHAC. He is primarily responsible for the research portfolio on vaccines and emerging pathogenic agents, including SARS-CoV-1. He leads a team of scientists responsible for supporting diagnostic screening in Canada, conducting research on SARS-CoV-2, creating models to predict the evolution of the pandemic, and managing the gathering of data to provide guidance on public health planning. He is also responsible for providing advice to support the Government of Canada in making decisions with respect to public health measures to be adopted to fight the COVID-19 pandemic and Canada’s vaccination program, particularly regarding the scientific and clinical aspects of the pandemic.
Dr. Rachel Rodin is the Acting Director General of the Testing Directorate in the Infectious Disease Prevention and Control Branch of PHAC, which establishes pilot programs and testing initiatives. During the regular course of her duties from April 2, 2020 to the date of her affidavit, she provided advice on the provision of COVID-19 tests at the population level.
Michael Spowart is the Regional Director, Western Region (British Columbia and Alberta), with PHAC. He leads a multi-disciplinary team of public health professionals responsible for managing frontline operations for a range of health promotion, disease prevention, and health protection programs. Over the past year, he has almost exclusively focused on operationalizing elements of the Pandemic Emergency Preparedness and Response. In that role, he is responsible for the operationalization of border measures at the ports of entry in British Columbia and Alberta. He also regularly participates in, or is briefed on, nation-wide meetings on the operation of DQFs and GAAs.
[51] During the hearing of these Applications, counsel to the Respondent explained that, through inadvertence, none of the above-mentioned affiants were qualified as an expert witness or requested to sign the experts’ certificate in Form 52.2. As a consequence, the Respondent appears to concede to the Applicants’ position that its affiants ought not to be treated as experts.
[52] Nevertheless, the Respondent maintains that government affiants who occupy elevated positions and have significant oversight within their departments or agencies have sufficient personal knowledge to testify first-hand about the conduct, activities and events in and around their departments or agencies.
[53] I agree. This is particularly so in a complex and highly expedited judicial review proceeding (Coldwater First Nation v Canada (Attorney General), 2019 FCA 292 at paras 46 and 58 [Coldwater]), and where the evidence concerns the basis for actions taken and advice provided by the affiants and those with whom they were closely working, as opposed to the “truth of the contents” of the information upon which they relied.
[54] Given the seniority of each of Ms. Barton, Dr. Poliquin, Dr. Rodin and Mr. Spowart, they are entitled to testify regarding the facts of which they have firsthand knowledge, the basis upon which decisions within their department or branch were taken and the basis upon which those departments or branches provided advice to the Government of Canada. Of course, to the extent that I have any concerns regarding the reliability of that testimony, that will be reflected in the weight accorded to the evidence.
[55] Some of the Applicants maintained that the Respondent’s affiants provided selective information, were highly argumentative and were generally not impartial. I disagree. Upon reviewing their affidavits and the transcripts of their cross-examinations by counsel to the RNN Applicants, the Spencer-Duesing Applicants and Mr. Colvin, respectively, I find that those affiants were straightforward, frank, succinct and generally credible. Unless otherwise indicated, I have no concerns regarding their testimony.
C. Media Reports & Academic Articles Tendered by the Applicants
[56] The Respondent submits that certain media reports relied upon by the Applicants are inadmissible. I agree. To the extent that these media reports are being relied upon for the truth of their contents, they are inadmissible under the general rule excluding hearsay evidence: Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at para 150.
[57] I also agree with the Respondent that, as with academic articles attached to affidavits filed by the Respondent’s affiants, such articles attached to the Applicants’ affidavits cannot be relied upon as proof of the facts contained therein: Ernewein v General Motors of Canada, 2005 BCCA 540 at para 41; Jones v Zimmer GmbH, 2013 BCCA 21 at paras 45-47. This stands in contrast to several other documents adduced by the various affiants, which benefit from the public document exception to the hearsay rule and can therefore be admitted as evidence of the truth of their content: R v P(A), [1996] OJ No 2986, 1996 CarswellOnt 3150 at paras 14-15 (Ont CA). As the admissibility of these public documents is not contested, I will not dwell on this matter.
[58] Based on the foregoing, the following exhibits are inadmissible:
Exhibit A to the Affidavit filed by Ms. Crane [the Crane Affidavit];
Exhibit A to the Affidavit filed by Ms. Spencer [the Spencer Affidavit]; and
Exhibits B, H and I to the Affidavit filed by Mr. Levant [the Levant Affidavit].
[59] Likewise, the following passages of affidavits that reiterate the contents of media reports are inadmissible:
Crane Affidavit, at para 10, first sentence and second clause of third sentence;
Spencer Affidavit, at para 14, first sentence and second clause of third sentence;
Levant Affidavit, at para 14, second sentence, and para 37;
Affidavit filed by Ms. Thomson, at para 10, sixth sentence; and
Affidavit filed by Mr. Thomson, at para 9, first sentence.
[60] Nothing turns on this, as the conclusions I have reached on the issues raised in these Applications would not be altered even if I were to admit the above-mentioned evidence and materials. This is because I would not have given that evidence and those materials significant weight.
D. Report Issued on the Eve of the Hearing
[61] On May 29, 2021 the Spencer-Duesing Applicants brought a motion seeking leave to serve and file a report entitled Priority strategies to optimize testing and quarantine at Canada’s borders [the May Report]. That report was issued on May 27, 2021 by the federal government’s COVID-19 Testing and Screening Expert Advisory Panel. Among other things, the panel recommended replacing the requirement to quarantine at a GAA or a DQF with a stronger focus on adherence to quarantine in travellers’ households or other suitable places of quarantine: May Report, at pp 9-10 and 15. That recommendation was based on the fact that the current approach to mandatory hotel quarantine is not applied equally to land and air travellers, is expensive to administer, provides opportunities for travellers to bypass by paying a fine, and is inconsistent with the incubation period of the virus.
[62] During the hearing the Spencer-Duesing Applicants explained that they sought to introduce the May Report solely for the purposes of their submissions in relation to section 1 of the Charter. Given the Respondent’s consent to the document being admitted for this limited purpose, I granted the motion.
VI. Issues
[63] The parties appear to agree on the issues raised in these consolidated Applications, although they have articulated them somewhat differently. In my view, the issues are best expressed as follows:
Do the Impugned Measures violate any of sections 6(1), 7, 8, 9, 10(b), 11(d), 11(e) or 12 of the Charter?
If so, is any such violation demonstrably justified in a free and democratic society?
Are the Orders containing the Impugned Measures ultra vires the authority delegated to the Governor in Council under subsection 58(1) of the Quarantine Act? If not, are the Impugned Measures nevertheless unreasonable?
Are the Orders containing the Impugned Measures ultra vires the authority of the federal government under section 91(11) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3 [Constitution Act, 1867]?
Do the Impugned Measures violate section 1(a) of the Bill of Rights?
What, if any, remedies are appropriate?
VII. Standard of Review
[64] The standard applicable to the Court’s review of the issues that have been raised with respect to the Charter, the Constitution Act, 1867 and the Canadian Bill of Rights is correctness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 53, 55, 69 [Vavilov]; Canada (Union of Correctional Officers) v Canada (Attorney General), 2019 FCA 212 at paras 17 and 21; Taseko Mines Limited v Canada (Environment), 2017 FC 1100 at paras 49 and 54, aff’d 2019 FCA 320 at paras 19 and 22.
[65] In reviewing whether the Impugned Measures are ultra vires the authority delegated to the AIC under subsection 58(1) of the Quarantine Act, the applicable standard is reasonableness: Vavilov, above, at paras 65-68 and 109. This standard also applies in assessing whether the Impugned Measures are reasonable. I will address the principles applicable in assessing reasonableness in Part VIII.C. of these reasons below.
VIII. Analysis
A. Do the Impugned Measures Violate any of Sections 6(1), 7, 8, 9, 10(b), 11(d), 11(e) or 12 of the Charter?
(1) Subsection 6(1)
[66] Subsection 6(1) of the Charter states: “Every citizen of Canada has the right to enter, remain in and leave Canada.”
[67] Mr. Colvin maintains that the requirement to stay at a GAA constitutes an arbitrary impediment to the right of returning air travellers to freely enter Canada. He acknowledges that there may at times be a pressing need to detain or hold an individual at the border based on “suspicions of criminal activity, improper credentials, questionable purposes of entry, or even suspicions of communicable disease.” However, he asserts that no such need exists for persons such as himself, who have not been infected with COVID-19, have not had any contact with anyone infected with the virus, have tested negative prior to departing for Canada, and possess the means and ability to self-quarantine for 14 days at home.
[68] I disagree.
[69] I recognize that an expansive approach to subsection 6(1) is consistent with the fact that it is exempt from the legislative override in section 33 of the Charter and is not subject to any limit