CITATION: Mississauga (City) v. Hung, 2022 ONCJ 429  
DATE: September 22, 2022  
IN THE MATTER OF  
the Quarantine Act, S.C. 2005, c. 20  
and  
Order in Council P.C. #2021-0174 (Minimizing the Risk of Exposure to COVID-19 in  
Canada Order (Quarantine, Isolation and Other Obligations))  
and  
the Contraventions Act, S.C. 1992, c. 47  
Between  
the Corporation of the City of Mississauga  
Prosecutor  
and  
Wai Wun HUNG  
Defendant  
Ontario Court of Justice  
Mississauga, Ontario  
Quon J.P.  
Reasons for Judgment  
Trial held:  
May 6, 2022.  
Judgement rendered:  
September 22, 2022.  
Charges: (1) Failure to comply with a reasonable measure ordered by a  
screening officer or quarantine officer, contrary to s. 15(3) of  
Quarantine Act, S.C. 2005, c. 20.  
(2) Failure to comply with an order prohibiting or subjecting to any  
condition the entry into Canada, contrary to s. 58 of  
Quarantine Act, S.C. 2005, c. 20.  
1
Counsel:  
C. Mariuz, prosecutor  
M. Cardy, legal representative for the defendant.  
Cases Considered or Referred To:  
Corbiere v. Canada (Minister of Indian and Northern Affairs, [1999] S.C.J. No. 24 (S.C.C.).  
Egan v. Canada, [1995] S.C.J. No. 43 (S.C.C.).  
La Souveraine, Compagnie d'assurance générale v. Autorité des marchés financiers, [2013] S.C.J. No. 63 (S.C.C.).  
Lavoie v. Canada, [2002] S.C.J. No. 24 (S.C.C.).  
Law Society British Columbia v. Andrews, [1989] S.C.J. No. 6 (S.C.C.).  
Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc., [2006] 1 S.C.R. 420, S.C.J. No. 12 (S.C.C.).  
Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] S.C.J. No. 2  
(S.C.C.).  
M. v. H., [1999] S.C.J. No. 23 (S.C.C.).  
Miron v. Trudel, [1995] S.C.J. No. 44 (S.C.C.).  
Mississauga (City) v. Cardoza, unreported, (July 21, 2022), Mississauga (Ont. C.J.), Quon J.P.  
Nova Scotia (Attorney General) v. Walsh, [2002] S.C.J. No. 84 (S.C.C.).  
R. v. Demont (1994), 129 N.S.R. (2d) 359 (N.S.S.C.).  
R. v. Jorgenson, [1995] S.C.J. No. 92 (S.C.C.).  
R. v. Kapp, [2008] S.C.J. No 42 (S.C.C.).  
R. v. Pontes, [1995] S.C.J. No. 70 (S.C.C.).  
R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.).  
Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.), Pentney J.  
Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622 (F.C.), Crampton C.J.  
Vriend v. Alberta, [1998] S.C.J. No. 29 (S.C.C.).  
Statutes or Regulations Cited:  
Bill of Rights, S.C. 1960, c. 44, s. 1(a).  
Canadian Charter of Rights and Freedoms, Part 2 of the Constitution Act, 1982, Schedule B of the Canada Act 1982  
(U.K.), 1982, c. 11, R.S.C. 1985, App. II, ss. 1, 6, 6(1), 7, 8, 9, 10(b), 11(d), 11(e), 12, and 15(1).  
Contraventions Act, S.C. 1992, c. 47, ss. 5, 8, and Schedule XVI (items #4 and #7).  
2
Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), ss. 91 and 91(11).  
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 52.  
Criminal Code, R.S.C. 1985, c. C-46, s. 19.  
Quarantine Act, S.C. 2005, c. 20, ss. 4, 15(3), 58, 58(1), 58(1)(a -- d) and 58(1)(d).  
Federal Statutory Orders and Regulations Cited  
Regulations Amending the Contraventions Regulations (Schedule XVI) (Quarantine Act), SOR/2021-13, s. 3, (February 15,  
2021) online: Canada Gazette, Part II, Volume 155, Extra Number 3<< Canada Gazette, Part 2, Volume 155, Number  
3: Regulations Amending the Contraventions Regulations (Schedule XVI)>> or <<https://gazette.gc.ca/rp-pr/p2/2021/2021-  
02-15-x3/pdf/g2-155x3.pdf>>.  
Regulations Amending the Contraventions Regulations (Quarantine Act), SOR/2020-86, s. 2, Schedule XVI, (April 11, 2020),  
online: Canada Gazette, Part II, Volume 154, Extra Number 1<< Canada Gazette, Part 2, Volume 154, Number  
1: Regulations Amending the Contraventions Regulations (Quarantine Act)>>.  
Federal Orders-in-Council Cited:  
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-  
0174, (March 19, 2021) Canada Gazette Part I, Volume 155, Number 14, April 3, 2021) (Quarantine Act), online: orders-in-  
council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=40354&lang=en>> or online:  
gazette.gc.ca website <<https://www.gazette.gc.ca/rp-pr/p1/2021/2021-04-03/pdf/g1-15514.pdf>>, p. 1499, ss. 1.1,  
1.2(1)(a)(ii), 2.2(1), 2.3(1)(a), 3.1, 3.1(a)(ii)(A), 3.1(a)(ii)(B), 3.2(1), 3.2(2), 3.2(2)(b), 3.2(3), and 3.4, 3.4(a), 3.4(b), and  
4.1(a).  
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-  
0075, (February 14, 2021) Canada Gazette Part I, Vol. 155, No. 8, February 20, 2021) (Quarantine Act), online: orders-in-  
council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=40252&lang=en>> or Online:  
gazette.gc.ca website<< https://gazette.gc.ca/rp-pr/p1/2021/2021-02-20/pdf/g1-15508.pdf>>, at p. 643 [Minimizing the Risk  
of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations) (February 27, 2021), (Erratum)  
<<https://canadagazette.gc.ca/rp-pr/p1/2021/2021-02-27/html/order-decret-eng.html>>, “Notice is hereby given that in the  
order bearing the above-mentioned title published in the Saturday, February 20, 2021, issue of the Canada Gazette, Part I,  
Vol. 155, No. 8, the P.C. number should have been the following on page 673: P.C. 2021-75], ss. 1.2(1)(a)(ii)(B), 1.2(1)(a)(iii),  
1.2(1.1), 1.3(ii)(A), 3(1.01)(a), and 3(1.3).  
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-  
0011, (January 20, 2021) Canada Gazette Part I, Volume 155, Number 5, January 30, 2021) (Quarantine Act), online:  
orders-in-council.canada.ca website <https://orders-in-council.canada.ca/attachment.php?attach=40172&lang=en>> or  
online: gazette.gc.ca website<<https://gazette.gc.ca/rp-pr/p1/2021/2021-01-30/pdf/g1-15505.pdf>>, at p. 362, s. 1.2(4)(a).  
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C. #2021-  
0001, (January 6, 2021) Canada Gazette Part I, Volume 155, Number 3, January 16, 2021) (Quarantine Act), online: orders-  
in-council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=40167&lang=en>> or Online:  
gazette.gc.ca website <<https://www.gazette.gc.ca/rp-pr/p1/2021/2021-01-16/pdf/g1-15503.pdf>>, p. 223, s. 1.1(3)(a)(i).  
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 7, P.C. #2020-0840, (October  
30, 2020) Canada Gazette Part I, Volume 154, Number 45, November 7, 2020) (Quarantine Act), online: orders-in-  
council.canada.ca website <<https://orders-in-council.canada.ca/attachment.php?attach=39829&lang=en>> or Online:  
gazette.gc.ca website<< https://gazette.gc.ca/rp-pr/p1/2020/2020-11-07/pdf/g1-15445.pdf>>, p. 3186, ss. 1.1(2) and 15.  
3
Reference Material Cited:  
Libman, R. Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc.,  
2002), ((looseleaf) update 11 February 2008).  
Exhibits entered:  
Exhibit "1" - copy of a one-page “Traveller Contact Information Form” document dated April 5,  
2020, signed by Wai Wun HUNG with 4 sections of questions and answers [only  
English questions stated below]:  
Traveller Contact Information Form  
FOR AGENCY USE ONLY  
------------------------------------------------------------------------------------------------------------------------------------------------------------------  
SUMMARY OF HEALTH ASSESSMENT AND QUARANTINE PLAN QO-Sym QO-Accom QO-Vol QO-BN QO-MF  
EXEMPTION FROM MANDATORY QUARANTINE (IF APPLICABLE) EX-TT EX-MS  
EX-ES EX-CBW  
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------  
TRAVELER INFORMATION (1 FORM PER TRAVELER)  
Surname  
Given Names  
HUNG  
WAI WUN  
Date of birth (yyyy-mm-dd)  
[removed for privacy]  
Preferred language  
email address  
[removed for privacy]  
Eng. Fr. Sp.  
country code  
primary phone number  
country code  
secondary phone number (optional)  
-------------------------------------------------------------------------------------------------------------------------------------------------------------------  
Arrival Information  
Date of Arrival (yyyy-mm-dd) Air  
2020 04 05  
Land  
Port of Entry (if land or marine)  
Marine  
Airport  
Toronto Pearson Vancouver Montreal Other  
Name of airport (if other)  
Airline  
A
Flight No.  
2702  
Type of travel document  
Passport  
Country that issued the travel document  
CANADA  
Travel document number  
[removed for privacy]  
-------------------------------------------------------------------------------------------------------------------------------------------------------------------  
COVID-19 test  
I acknowledge that unless exempted from the requirement under the Quarantine Act and Emergency Orders made under  
it, I am required to show proof of a COVID-19 test result that was undertaken in accordance with the requirements  
specified in these legislations, AND that I must keep the proof of my COVID-19 test for my entire quarantine period [NOT  
required for entry by marine vessel]  
Yes  
Have you tested positive for COVID-19 on a sample collected If no, do you have a valid registration at a Government-approved  
between 14 and 90 days before the scheduled departure of your hotel?  
flight (if travelling by air) or entry to Canada (if travelling by land)?  
Yes No  
Yes No If yes provide your booking reference number:  
--------------------------------------------------------------------------------------------------------------------------------------------------------------------  
Final Quarantine Location  
Destination Type  
Home Other  
Destination Type Description (if other)  
Friends Empty Condo  
Apartment/unit number (if applicable)  
[removed for privacy]  
Postal Code  
Street number and name  
188 University Avenue  
City  
TORONTO  
Purpose of Travel (if applicable, select one)  
Prov./Terr.  
ON  
M5A 0A3  
Study (International Student)  
Foreign worker  
Study (US-CAN cross-border student)  
Family reunification Compassionate grounds  
------------------------------------------------------------------------------------------------------------------------------------------------------------------  
Attestation  
I attest that the Information provided in this form is true, accurate, and complete  
Signature (of parent or legal guardian for individuals 16 years of age or younger]  
Date of signature (yyy-mm-dd)  
“signature of Wai Wun HUNG”  
2020-04-05  
--------------------------------------------------------------------------------------------------------------------------------------------------------------------  
GC 648 (2021-02)  
See back page for privacy notice  
CANADA  
4
PAGE 2 of 2  
V-Feb.2021  
PHAC-20200420  
1.  
INTRODUCTION  
[1] In the year 2020, which was the first year of the declared COVID-19 global  
pandemic, many Canadians and residents of Canada heeded the Canadian  
Federal Government’s advice and pleas about not travelling out of Canada during  
the first year of the pandemic, except for necessary travel outside Canada to attend  
a funeral or to take care of an ill relative. The reason the Federal Government had  
asked the people of Canada not to travel out of the country was so that it would  
serve as one of the measures that would hopefully prevent the contagious COVID-  
19 virus from entering and spreading in Canada. The COVID-19 virus was causing  
a global health pandemic that was sickening people, overwhelming hospitals, and  
causing death to many people who contracted COVID-19, and which was engulfing  
some parts of the world.  
[2] Those that heeded the advice not to travel outside Canada were willing to endure  
and sacrifice their vacations and visits to family and loved ones for the common  
good, especially in their desire to protect the health of senior and vulnerable people  
in Canada. However, some did not heed the government’s request not to travel  
outside of Canada and were instead cavalier and selfish in their attitude toward their  
social responsibility and did not heed the scientific-based and consequential advice  
and did travel outside of Canada for hedonistic pleasure.  
[3] Although the Canadian Federal Government did not prevent people from leaving  
Canada to travel to other countries, a significant number of COVID-19 cases that  
had been identified and reported in Canada have been linked and traced back to  
travelers who had been abroad and who may have contracted COVID-19 while  
abroad, and who were asymptomatic carriers of the COVID-19 virus when they had  
entered or returned to Canada.1 In addition, vaccines that were created to provide  
protection against serious illness, hospitalization and death from the COVID-19  
disease were also not approved for use in Canada until respectively December 9,  
2020 and December 23, 20202. When vaccines were available to people in Ontario,  
1
In Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.), Pentney J. noted at para. 22 from data provided  
to the court that data from testing of travellers on flights from January 10-18, 2021, who had arrived from a country lacking  
the resources to administer pre-departure testing showed a COVID-19 positivity rate of 6.8% in asymptomatic travellers:  
Data from the Alberta study as well as a McMaster Health Labs testing pilot showed that the majority of imported  
COVID-19 cases were detected on arrival (67-69%), but a further 25.8% were only identified by testing at day  
seven, with the remaining 5.6% positive cases identified by testing at day 14. Additionally, data from testing of  
travellers on flights from January 10-18, 2021, arriving from a country lacking the resources to administer pre-  
departure testing showed a COVID-19 positivity rate of 6.8% in asymptomatic travellers.”  
2
The Pfizer-BioNTech Comirnaty COVID-19 vaccine was approved by Health Canada on December 9, 2020. The  
Moderna Spikevax COVID-19 vaccine was approved by Health Canada on December 23, 2020.  
5
the Ontario Provincial Government had implemented a 3-phase rollout plan for  
vaccinating Ontarians.3 Phase 1 was from December 2020 to March 2021, when  
vaccinations were available for adults ages 80 years and older, seniors in  
congregate living, health care workers, adults in First Nations, Métis and Inuit  
populations, and adult chronic home care recipients. Phase 2 was from April 2021  
to June 2021, when vaccinations were available for adults aged 55 and older, in  
decreasing increments, for people in high-risk congregate settings (such as  
shelters, group homes), individuals with certain health conditions, certain essential  
caregivers, people who live in hot spot communities and those who cannot work  
from home. For Phase 3, it commenced in July of 2021 and onwards when  
vaccinations were available for all remaining eligible Ontarians.  
[4] In addition to the Federal Government’s pleas about not travelling outside Canada,  
other measures were also implemented and adopted by the Federal Government  
under the Quarantine Act, S.C. 2005, c. 20, to prevent and control the spread and  
entry into Canada of the novocorona virus that has caused the highly contagious  
COVID-19 disease, which may have been unknowingly brought into Canada by  
travellers returning or coming to Canada.  
[5] However, in December of 2020, just when vaccines were just becoming approved  
for use and available to the Canadian population for reducing the risk of the severity,  
hospitalization, and death due to the illness caused by the COVID 19 virus, a new  
highly contagious variant of the novocorona virus was beginning to spread in  
Canada4. This was also during the second wave of COVID-19 in Canada5. The  
3
See Ontario Government website entitled, “Ontario’s COVID-19 vaccination plan” that sets out the planned rollout for  
people in Ontario to receive one of the approved COVID-19 vaccine, online: Ontario COVID-19 website <<https://covid-  
19.ontario.ca/ontarios-covid-19-vaccination-plan>>:  
4
See the “Explanatory Note” following Order-In-Council PC #2021-0174 which had been published in the Canada  
Gazette Part I, Volume 155, Number 14, at p. 1541 that outlines the new variants of the COVID-19 virus which were  
more transmissible than previous circulating variants:  
On December 19, 2020, the United Kingdom announced that analysis of viral genome sequence data determined that a  
new variant of the virus, B.1.1.7, that causes COVID-19 was spreading in the country, and that this new variant was  
significantly more transmissible (up to 70%) than previously circulating variants. In addition, South Africa and Brazil have  
also identified other novel variants of the virus B.1.351 variant and the P.1 variant respectively. The United States Centers  
for Disease Control and Prevention have observed that the new variants spread more easily and quickly than other variants,  
though studies suggest that the current vaccines authorized in the United States are effective against these variants. The  
European Centre for Disease Prevention and Control has assessed the impact of introduction and community spread of  
these new variants to be high, and could lead to higher hospitalization and death. While many countries worldwide are  
currently experiencing a decline in overall SARS-CoV-2 infections, likely as a result of implemented public health and social  
measures, an increased number of reports of variants have been noted in a number of countries and the number of countries  
reporting variants of concern has continued to increase. Cases of the variants identified in the United Kingdom, South Africa  
and Brazil have now been identified in many countries around the globe, including a small number of cases in Canada and  
the United States. As of March 9, the B.1.1.7 variant is reported in 111 countries, the B.1.351 variant is reported in 58  
countries and the P.1 variant is reported in 32 countries, across all six WHO regions.  
5
The second wave was from September 2020 to mid-February 2021: see Table I in article entitled, “Preventing the  
spread of COVID-19 variants, online: Government of Canada (Public Health Agency of Canada) website  
<<https://www.canada.ca/en/public-health/services/reports-publications/canada-communicable-disease-report-  
ccdr/monthly-issue/2021-47/issue-7-8-july-august-2021/covid-19-variants.html>>:  
6
first 2 cases of the new variant of concern were discovered in Ontario on December  
26, 2020.6 To protect the people of Canada from the new highly contagious variant  
of the virus causing COVID-19, the Administer-in-Council with advice from the  
Public Health Agency of Canada issued during the first part of 2021 several COVID-  
19 Emergency Orders under the Quarantine Act, S.C. 2005, c. 20, that contained  
strict public health measures for people entering or returning to Canada by air.  
These legally mandated measures included the requirements of air travellers who  
were returning to or entering Canada from abroad to provide a negative COVID-19  
molecular (PCR) test to the aircraft operator which had been taken within 72 hours  
before the departure of their flight to Canada; to book and prepay for a 3-day stay  
at a government-approved hotel and to provide proof of such booking electronically  
to the Minister of Health before boarding their flight to Canada; to undergo a  
mandatory Day 1 COVID-19 molecular (PCR) test at Canadian airports upon their  
arrival; to take a self-administered Day 10 COVID-19 molecular (PCR) test at home  
and to submit the test to the Public Health Agency of Canada; to provide  
electronically to the Minister of Health a quarantine plan for 14 days which included  
the 3-day stay at a government-approved hotel before boarding their flight to  
Canada, and to quarantine for 14 days at a government designated location if  
showing signs of having COVID-19 upon arrival, and for air travellers entering  
Canada from abroad who are asymptomatic being required to stay at government-  
approved hotels for up to 3 days at their own expense and then to isolate and  
quarantine for 11 additional days.  
[6] Alas, this prosecution is about one such person who did not heed the advice of  
epidemiologists and government officials about not travelling outside Canada  
during the first year of the pandemic. Moreover, this prosecution is under the  
federal Quarantine Act, S.C. 2005, c. 20, and involves two charges being laid  
against the defendant, Wai Wun Hung, who had left Canada on December 27,  
2020, and then returned to Canada on April 5, 2021. The defendant was charged  
upon her return to Canada under s. 15(3) of the Quarantine Act for “failure to comply  
Table 1: The three waves of COVID-19 in Ontario  
Description  
Approximate dates  
Wave one (the first wave)  
Wave two (the second wave)  
Wave three (the third wave)  
February 2020August 2020  
September 2020MidFebruary 2021  
Mid-February 2021June 2021  
6
See news article dated December 26, 2020 and entitled, “COVID-19: Two confirmed cases of 'UK variant' detected in  
Ontario; province continues to report over 2,000 new cases per day”, online: Ottawa Citizen website <<  
https://ottawacitizen.com/news/local-news/covid-19-province-continues-to-report-more-than-2000-new-cases-per-  
day>>:  
The Ontario government announced Saturday that testing had uncovered the first confirmed cases in  
Canada of a COVID-19 variant first identified in the United Kingdom.  
The cases involve a couple from Durham Region “with no known travel history, exposure or high-risk  
contacts,” the ministry of health said in a media release. … “This further reinforces the need for Ontarians to  
stay home as much as possible and continue to follow all public health advice, including the provincewide  
shutdown measures beginning (Saturday),” said Dr. Barbara Yaffe, Ontario’s associate chief medical officer  
of health.”  
7
with a reasonable measure ordered by a screening officer” for not undergoing a  
Day 1 molecular (PCR) test at the airport upon arrival and under s. 58 of the  
Quarantine Act for “failure to comply with an order prohibiting or subjecting to any  
condition the entry into Canada” for not booking the mandatory 3-day prepaid stay  
at a government-approved hotel. The defendant had departed and flew out of  
Canada on December 27, 2020, for Mexico. Her departure from Canada had  
occurred the day after a provincial shutdown in Ontario went into effect on Saturday,  
December 26, 2020, at 12:01 a.m. The Office of the Premier of Ontario had  
announced on December 21, 2020, that there would be this provincewide shutdown  
on December 26, 2020, since COVID-19 cases were continuing to rise at an  
alarming rate in Ontario and that additional restrictions were put into place in order  
to reinforce that Ontarians should stay at home as much as possible to minimize  
transmission of the virus and prevent hospitals from becoming overwhelmed7. The  
defendant’s reason for leaving Canada was not for attending a funeral, a family  
emergency, or for an essential trip for employment. As she described it, she had  
to leave Canada to simply get away for her mental health. Her plans in Mexico  
were to continue to work remotely in her occupation and to be in Mexico for  
pleasure. Her plan had been to stay in Mexico until March 5, 2021, and then to fly  
back to Canada. While in Mexico, she was fortunate to still be able to work and  
earn a salary while remotely using her computer. She had also booked and paid  
for 2 flights to return to Canada. However, prior to her intended departure on March  
5, 2021, both of the defendant’s flights were cancelled by the airlines that she had  
booked her flights with, as the COVID-19 pandemic had worsened in Canada in the  
early part of 2021. She then decided to fly to Columbia because she had a friend  
there and had stayed in Columbia for a month before being able to book a flight  
back to Canada. While in Columbia she had continued to work remotely.  
[7] Prior to returning to Canada from Columbia, the defendant had researched the entry  
requirements for returning to Canada using the internet, Canadian government  
websites, and the ArriveCAN app, and had believed that the only 2 entry  
requirements for returning to Canada by air had been to have a negative COVID-  
19 molecular or PCR (Polymerase Chain Reaction) test within 72 hours before  
boarding her flight back to Canada and to provide a quarantine plan for 2 weeks of  
isolation in Canada. She further said that she was not aware of the additional entry  
requirements of having to book a 3-day prepaid stay at a government-approved  
hotel and to undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon  
arrival, until she had arrived at Toronto Pearson International Airport on April 5,  
2021. Also, before boarding the airplane in Columbia for her flight back to Canada,  
she had obtained a negative COVID 19 molecular (PCR) test result in Columbia  
7
See announcement from the Office of the Premier, entitled “Provincewide Shutdown to Stop Spread of COVID-19 and  
Save Livesdated December 21, 2020, online: Ontario Newsroom website  
<<https://news.ontario.ca/en/release/59790/ontario-announces-provincewide-shutdown-to-stop-spread-of-covid-19-  
and-save-lives>>: TORONTO As COVID-19 cases continue to rise at an alarming rate, the Ontario government, in  
consultation with the Chief Medical Officer of Health and other health experts, is imposing a Provincewide Shutdown.  
Additional restrictions will be put into place and reinforce that Ontarians should stay at home as much as possible to  
minimize transmission of the virus and prevent hospitals from becoming overwhelmed. The Provincewide Shutdown  
will go into effect as of Saturday, December 26, 2020, at 12:01 a.m.”  
8
within 72 hours before the scheduled departure of her flight to Canada. In addition,  
her quarantine plan which she had provided electronically to the Minister of Health  
had been to isolate at her friend’s condo unit for the 14 days after returning to  
Canada, as her friend was out of the country during that period. However, when  
asked about her knowledge of the other entry requirements of having to book a 3-  
day prepaid stay at a government-approved hotel and having to undergo a Day 1  
molecular (PCR) test at the airport upon arrival, the defendant replied that she was  
aware of these other requirements as she had heard rumours of such entry  
requirements when she was away.  
[8] On Sunday, April 4, 2021, the defendant had departed from Columbia by air at 7:45  
a.m. for her return flight to Canada that also included a layover in Miami, Florida.  
The defendant eventually arrived at Toronto International Airport, Terminal 3,  
shortly after midnight on Monday, April 5, 2021, which was also during the third  
wave8 of COVID-19 in Canada. After de-embarking from the plane, she first went  
to the Canada Border Services Agency area where she was required to show to  
the CBSA officer that she had the mandated entry requirements. As the defendant  
was not able to show the CBSA officer that she had complied with all the entry  
requirements, the CBSA officer placed a sticker on the defendant’s passport. The  
defendant then went to the luggage area to pick up her luggage and then was  
directed to the Public Health Agency of Canada area in Terminal 3, where she was  
interviewed and informed about the entry requirements by Screening Officer Nicole  
Dyer.  
[9] In addition, shortly before the defendant flew out of Canada on December 27, 2020,  
for her trip to Mexico, the City of Toronto had only administered its first approved  
COVID-19 vaccination on December 14, 20209. However, there is no evidence  
provided at trial that the defendant had received an approved COVID-19 vaccine  
prior to leaving Canada or while she had been abroad between December 27, 2020,  
and April 5, 2021.  
[10] Furthermore, because of increased hospitalizations of people who had contracted  
the COVID-19 illness, the Ontario Premier had issued a stay-at-homeorder on  
8
The third wave was between mid-February 2021 to June 2021. See footnote 5 above.  
9
News article entitled, “Canada’s 1st COVID-19 vaccinations administered, kicking off massive campaign”, by Staff of  
The Canadian Press, Posted December 14, 2020 10:14 am and Updated December 14, 2020 10:30 pm, online: Global  
News website: <<https://globalnews.ca/news/7520385/ontario-first-covid19-vaccination-administered-coronavirus/>>:  
A long-term care resident in Quebec and a nursing home worker in Ontario received Canada’s first COVID-  
19 vaccinations on Monday, kicking off the largest immunization campaign in the country’s history.  
The shots from drug company Pfizer were administered in Quebec City and Toronto within roughly half an  
hour of each other, creating some confusion about which of the two hard-hit provinces could lay claim to  
being the first in the country to hand out doses.… Canadians watched as Anita Quidangen, a personal  
support worker, received her shot in Toronto on live television around noon eastern time. Moments later,  
Ontario’s premier proclaimed her as “the first person in Ontario and Canada” to receive the vaccine.”  
9
January 12, 2021, that would go effect at 12:01 a.m. on January 14, 2021, which  
would require everyone in Ontario to remain at home with exceptions for permitted  
purposes or activities, such as going to the grocery store or pharmacy or accessing  
health care services.10  
[11] Moreover, the legal representative for the defendant submits that the defence is not  
bringing any Charter applications nor raising any breaches of the Charter, despite  
the defendant’s testimony in which she said she had believed her right to enter,  
remain in and leave Canada under s. 6 of the Charter was violated when she was  
mandated to stay for 3 days at a government-approved hotel and to also undergo  
a Day 1 COVID-19 molecular (PCR) test upon entry into Canada. However, the  
defendant’s legal representative has raised the mistake of fact defence to exculpate  
the defendant from being convicted of the two charges brought against her. The  
defendant’s mistake of fact defence has two bases. The first basis of the mistake  
of fact defence involves the defendant’s mistaken belief that she had complied with  
the necessary entry requirements of having a negative pre-flight COVID-19  
molecular (PCR) test and having a quarantine plan to isolate for 14 days at her  
friend’s condominium when she arrived at the Toronto airport on April 5, 2021. For  
the second basis of the mistake of fact defence, the defendant contends that she  
did not comply with the entry requirements of booking a 3-day prepaid stay at a  
government-approved hotel or in undergoing a Day 1 molecular (PCR) test at the  
Toronto airport upon her arrival, since she had a mistaken belief that she did not  
have to comply with these 2 additional entry requirements on April 5, 2021, because  
she had believed her Charter rights would be infringed if she were required to book  
and pay for a 3-day stay at a government-approved hotel and to undergo the free  
of cost Day 1 COVID-19 molecular (PCR) test, based on what she had read on the  
internet and also considering that she had already obtained a negative COVID-19  
molecular (PCR) test in Columbia within 72 hours prior to her flight departing to  
Canada.  
10  
News Release entitled, “Ontario Declares Second Provincial Emergency to Address COVID-19 Crisis and Save Lives”,  
online: Ontario Newsroom website <<https://news.ontario.ca/en/release/59922/ontario-declares-second-provincial-  
emergency-to-address-covid-19-crisis-and-save-lives>>:  
TORONTO In response to a doubling in COVID-19 cases over the past two weeks, the real and looming  
threat of the collapse of the province's hospital system and alarming risks posed to long-term care homes as  
a result of high COVID-19 transmission rates, the Ontario government, in consultation with the Chief Medical  
Officer of Health and other health experts, is immediately declaring a second provincial emergency under s  
7.0.1 (1) of the Emergency Management and Civil Protection Act (EMPCA).  
Effective Thursday, January 14, 2021at 12:01 a.m., the government is issuing a stay-at-home order requiring  
everyone to remain at home with exceptions for permitted purposes or activities, such as going to the grocery  
store or pharmacy, accessing health care services, for exercise or for work where the work cannot be done  
remotely. This order and other new and existing public health restrictions are aimed at limiting people's  
mobility and reducing the number of daily contacts with those outside an immediate household. In addition  
to limiting outings for these purposes, all businesses must ensure that any employee who can work from  
home, does work from home.  
These new public health measures will help stop the spread of COVID-19 by reducing concerning levels of  
mobility as the province continues its vaccine rollout and ramps up to mass vaccination when the federal  
government is able to provide the necessary supply to do so.  
10  
[12] On the other hand, in response to the defendant’s second basis of the mistake of  
fact defence, the prosecution submits that the defendant’s mistaken belief that her  
Charter rights would be violated if she had to comply with the entry requirements is  
not a reasonable or honestly held mistake of fact, but a mistake of law or ignorance  
of the law claim, which is not a valid or legally recognized defence. And, in response  
to the first basis of the defendant’s mistake of fact defence, the prosecution submits  
that the defendant had testified under cross-examination that she had been aware  
of the entry requirements of having to book a 3-day prepaid stay at a government-  
approved hotel and having to undergo a Day 1 COVID-19 molecular (PCR) test at  
the airport upon arrival.  
[13] Ergo, for the reasons that will follow, the prosecution has proven the actus reus of  
the offence beyond a reasonable doubt for both charges. For the s. 15(3) charge  
set out in Certificate of Offence #3161-1024051F, the prosecution has proven  
beyond a reasonable doubt that the defendant did not undergo the Day 1 COVID-  
19 molecular (PCR) test at the airport upon her arrival on April 5, 2021 and for the  
s. 58 charge set out in Certificate of Offence #3161-1024892F, the prosecution has  
proven beyond a reasonable doubt that the defendant did not book a 3-day prepaid  
stay at a government-approved hotel on April 5, 2021.  
[14] As for the defendant’s mistake of fact defence, both bases of the defendant’s  
mistake of fact defence are actually “mistakes of law” or ignorance of the law”  
assertions, which are not legally recognized defences. In other words, if the  
defendant believes that the law applying to her is “Law A” when in fact the applicable  
law is actually “Law B”, then the defendant’s contention of mistakenly believing that  
she had met the entry requirements of providing proof electronically of having a  
negative COVID-19 molecular (PCR) test within 72 hours of the departure time of  
her flight to Canada and in having a quarantine plan for 14 days and not being  
aware of the other 2 entry requirements of having to book a 3-day prepaid stay at  
a government-approved hotel and having to undergo a Day 1 COVID-19 molecular  
(PCR) test at the airport upon arrival, or that she had mistakenly believed that her  
Charter rights, especially her s. 6 right as a Canadian citizen to enter, remain in and  
leave Canada, would be violated if she were required to book and stay for 3 days  
at a government-approved hotel and in having to undergo a Day 1 COVID-19  
molecular (PCR) test at the airport upon her arrival, when she already had a  
negative test before she boarded the airplane for Canada, are fundamentally  
“ignorance of the law” or a “mistake of law” made by the defendant and not a  
“mistake of fact” as the defendant contends. Furthermore, there is no documentary  
evidence provided or admitted at trial that shows that the defendant had been  
misled by a Canadian government website or by any Canadian government  
information that she only needed as entry requirements for April 5, 2021, of having  
to only provide proof electronically to the Minister of Health of having a negative  
COVID-19 molecular (PCR) test withing 72 hours of the scheduled departure time  
of her flight to Canada and in providing a quarantine plan for 14 days, which is akin  
to an “officially induced error” that would be the exception to the principle that a  
11  
mistake of law is not a defence. Accordingly, as her mistaken beliefs are actually  
mistakes of law, then the defendant has not met her legal or persuasive burden of  
proof on a balance or probabilities that she had reasonably believed in a mistaken  
set of facts which, if true, would render the act or omission innocent.  
[15] However, even if the defendant’s mistaken belief was not considered a mistake of  
law, but a mistake of fact in which the defendant had mistakenly believed that she  
had complied with the entry requirements or that she believed that she did not have  
to comply with the entry requirements since they would violate her Charter rights,  
the defendant would nevertheless not have met her burden of proving on a balance  
of probabilities that her mistaken belief was both objectively reasonable and or  
subjectively honest for either of her two bases of her mistake of fact defence, which  
will be expanded upon further in these written reasons.  
[16] Ergo, as the defendant has not met her legal onus in proving on a balance of  
probabilities that she had taken all reasonable care to avoid committing the 2  
offences or proving on a balance of probabilities that she had a reasonable and  
honest mistake of fact that she had mistakenly believed she had complied with the  
entry requirements or that she mistakenly believed she did not have to comply with  
the mandated entry requirements because they would violate her Charter rights,  
then the defendant is guilty beyond a reasonable doubt of committing the offence  
of “failure to comply with a reasonable measure ordered by a screening officer or  
quarantine officer, contrary to s. 15(3) of the Quarantine Act, S.C. 2005, c. 20 and  
guilty of committing the offence of “failure to comply with an order prohibiting or  
subjecting to any condition the entry into Canada, contrary to s. 58 of the  
Quarantine Act, S.C. 2005, c. 20.  
[17] The trial of the defendant’s 2 federal contravention charges under the Quarantine  
Act, had been held on May 6, 2022. After the evidence and closing arguments  
portion of the trial were completed, the matter was then adjourned until September  
22, 2022, for judgment. These, therefore, are the written reasons for judgment:  
2.  
THE CHARGES  
[18] On April 5, 2021, after midnight between 00:31 a.m. and 00:33 a.m., the defendant  
was charged with committing 2 offences under the Quarantine Act, S.C. 2005, c.  
20, at Terminal 3 of the Toronto Pearson International Airport that is located at 6310  
Terminal Three Road, Mississauga, Ontario. The actual wording of the two charges  
contained in the 2 Certificates of Offence issued to the defendant on April 5, 2021,  
are the following:  
(1) 3161-1024051F  
Filed April 7, 2021  
I, N. Dyer believe and certify that  
12  
on the day of 2012-04-05, 0033 a.m.,  
HUNG, Wai Wun  
188 University Ave., [removed for privacy]  
Toronto, ON M5H 0A3  
[removed for privacy] female  
At 6310 Terminal Three Rd Pearson International Airport,  
Mississauga  
Did commit the offence of  
“Failure to comply with a reasonable measure ordered by a screening  
officer, contrary to Quarantine Act, S.C. 2005, c. 20, s. 15(3).  
Set Fine of $1500.00 Total Payable $1880.00  
(2) 3161-1024892F  
Filed April 7, 2021  
I, N. Dyer believe and certify that  
on the day of 2012-04-05, 0031 a.m.,  
HUNG, Wai Wun  
188 University Ave., [removed for privacy]  
Toronto, ON M5H 0A3  
[removed for privacy] female  
At 6310 Terminal Three Rd Pearson International Airport,  
Mississauga  
Did commit the offence of  
Failure to comply with an order prohibiting or subjecting to any  
condition the entry into Canada, contrary to Quarantine Act, S.C. 2005,  
c. 20, s. 58.  
Set Fine of $3000.00 Total Payable $3755.00  
3.  
BACKGROUND  
(A) TESTIMONY OF NICOLE DYER, SCREENING OFFICER  
[19] Nicole Dyer testified that she was with the Public Health Agency of Canada and  
was a screening officer at Terminal Number 3 at the Toronto Pearson International  
Airport on April 5, 2021, at 12:30 a.m. in the early morning.  
13  
[20] Dyer also said that she was from Ottawa and had been deployed to assist at  
Toronto Pearson International Airport. She said her function at that time was to act  
as a clinical screening officer who has a medical background. She also said she is  
a nurse.  
[21] In addition, she said that international travellers arriving at Toronto Pearson  
International Airport would first have to see the Canada Border Services Agency  
(“CBSA”) and if they did not have the entry requirements, then a sticker would be  
placed on their passport by the CBSA with a reason why they would need to see a  
clinical screening officer with the Public Health Agency of Canada, and then they  
are sent to the clinical screening officer.  
[22] Dyer said that one of the reasons for having a sticker placed on a passport of an  
international traveller was that they did not have the entry requirement of a  
government-approved accommodation” booked. Dyer then said that she would  
also help the international traveller book that accommodation.  
[23] Moreover, Dyer said that when an international traveler with a sticker on their  
passport reached her, Dyer said she would first check the traveller for any COVID  
symptoms. She said she would take the traveller’s temperature and look for  
symptoms such as a cough, raspy sore throat, lethargy, sweating, lack of energy  
and shortness of breath.  
[24] At approximately 30 minutes after midnight, Dyer said the defendant, Wai Wun  
Hung (also going by the name Janice Hung), had come to her from CBSA because  
she had a sticker on her passport indicating that she did not have the mandated  
entry requirements after being screened by the CBSA. After taking her temperature  
and checking the defendant for any COVID symptoms, Dyer concluded that the  
defendant was asymptomatic because she did not have any overt symptoms and  
looked well.  
[25] Dyer then said that she looked to see if the defendant had booked a 3-night prepaid  
stay at a government-approved accommodation hotel or facility. Dyer said the  
defendant did not provide Dyer with a 3-night government-approved accom-  
modation booking.  
[26] In addition, Dyer said that she had explained to the defendant about the entry  
requirements and further explained to the defendant that if the defendant did not  
meet the entry requirements, the defendant would then be issued a fine. Dyer then  
said that the defendant opted not to book a 3-night stay at a government-approved  
accommodation hotel or facility.  
[27] Moreover, Dyer said that there had been a list of government-approved  
accommodation and telephones lined up at her location at the airport, so that  
international travellers returning to Canada could still book their 3-night stay at that  
point. She also said that the list had been from low to high cost depending on  
14  
financial needs. Dyer also said that she did not have to explain to the defendant  
about the various government-approved accommodation, since the defendant  
opted for the fine instead.  
[28] In addition, Dyer said that the defendant would have been told before coming back  
to Canada about the pre-entry requirements for which international travellers  
returning to Canada had to comply with and that the defendant should have booked  
the 3-night accommodation before returning to Canada. Moreover, Dyer said that  
travellers returning to Canada would also be offered an opportunity to book that 3-  
night stay while they were still at her location at the airport in order for the traveller  
to isolate until the traveller received a negative COVID-19 test result. Dyer said  
that this entry requirement was the mandate to prevent the spread of COVID.  
[29] For the second certificate issued to the defendant, Dyer said that a test referred to  
as a “Day 1 Test” was required of all travellers arriving at Toronto Pearson  
International Airport from international travels. This testing was required upon entry  
into Canada and was set up at the airport terminal that she was located at.  
However, Dyer said that the defendant did not want to do the test, even though it  
would not cost the defendant anything to do this Day 1 test.  
[30] In addition, Dyer said that the process on that day that was applicable to the  
defendant upon arrival at Toronto Pearson International Airport for returning  
international travellers, was for the defendant to first go through customs and be  
screened by a CBSA officer and if she did not meet the entry requirements then a  
sticker was placed on the defendant’s passport and she would be sent to the Public  
Health Agency of Canada for screening for symptoms of COVID, and then  
information would be provided to the defendant about the legal requirement of  
booking a 3-night stay at a government-approved accommodation and the  
requirement of a Day 1 Test. After leaving Dyer’s location the traveller would then  
be sent to the Accommodation area for booking a hotel that was approved by the  
federal government if they did not already book a 3-night stay, and then the traveller  
would go to the Day 1 testing area after having booked a hotel. Then, the traveller  
would be given a Day 10 testing kit to do at home.  
[31] In regard to the defendant, Dyer said that the Day 1 testing was not done that day  
for the defendant.  
[32] Moreover, Dyer said at that time, nurses were all in a line to facilitate the Day 1  
testing at the airport. After the Day 1 test was done on a traveller entering Canada,  
they would then isolate at the government-approved accommodation until the Day  
1 Test result came back. Dyer also explained that the result from the Day 1 Test  
could take up to 3 days to get the result, so that is why a 3-day accommodation was  
required to be booked at a government-approved accommodation hotel. This  
specific process Dyer said was instituted to prevent COVID from spreading within  
the community.  
15  
[33] When asked if she recognized the individual she had dealt with at the airport, Dyer  
said she would not recognize the defendant at a store, as she had dealt with a large  
volume of people.  
[34] In addition, Dyer said that she would have taken the defendant’s passport, recorded  
the defendant’s date of birth, passport information and country of passport in their  
database called QMS, and would have also checked the photograph in the  
passport to see if the defendant was the person on the passport. Furthermore,  
Dyer said she would have utilized that information from the defendant’s passport to  
issue the tickets. Dyer also said that for the address that was on the tickets, Dyer  
said that the defendant would have given it to her or it would have been on the  
defendant’s driver’s licence.  
[35] Dyer also said the name of the defendant was Wai Wun Hung and that she had  
verified the photograph in the passport with the person providing her the passport  
and that indeed it was Wai Wun HUNG.  
[36] In addition, Dyer said that she had verbalized to the defendant what the next step  
was, which was that the defendant needed Day 1 testing to be done, which was a  
Day 1 Molecular (PCR) Test. However, Dyers said that she did not tell the  
defendant about the Day 10 test.  
[37] When asked about the sequence of events, Dyer replied that when a traveller  
arrived in the country they would have to first go through customs and speak with  
a CBSA officer. Next, they would be directed to the place where they would pick  
up their suitcases or they would be directed to the Public Health Agency of Canada  
location to be seen by a screening officer, if they did not meet the entry  
requirements. The screening officer would then assess why the traveller had been  
sent to the Public Health Agency of Canada. Dyer then said that they would then  
help the traveller meet the entry requirements. Dyer also said that she would not  
be dealing with anyone other than someone who had travelled internationally  
because that was federal jurisdiction, while provincial jurisdiction would deal with  
in-country travelers.  
[38] Dyer then was shown a document entitled, “Traveller Contact Information Form”  
(Exhibit #1), that indicated that the defendant was the subject of the form, and in  
which Dyer had described as a form which indicates where a traveller was coming  
from, their address and their vaccinations. Dyer also said that the traveller would  
fill out this form.  
[39] In addition, Dyer said that the defendant’s offences had occurred in the municipality  
of Mississauga at Terminal 3 at the Toronto Pearson International Airport.  
[40] Furthermore, Dyer said that she then presented the defendant with 2 fines and  
returned the defendant’s passport back to the defendant. Dyer also said that the  
16  
defendant would then go to her home, while other travellers would go to the Day 1  
Testing area.  
[41] Under cross-examination, Dyer said that she did not have a lengthy conversation  
with the defendant, but that time was not an issue. Dyer also said that the cost to  
stay at an approved hotel would be $800 plus for 3 nights, but when questioned  
about that information not being in her notes, Dyer acknowledged that the specific  
information about the cost of staying at an approved hotel had not been  
documented in her notes. Dyer also said that the information about the costs of  
lodging would be helpful to a returning traveller or to a traveller entering Canada.  
Dyer also explained that on a case-by-case situation, accommodation would be  
offered at a quarantine facility to a returning traveller who had financial needs. Dyer  
also said that travellers were required to show a PCR test to get into the country.  
Although Dyer said that this information was also not in her notes, she said that if  
the defendant did not have a PCR test, then the defendant would have to go to the  
quarantine site and if she had a negative PCR test then she would be granted entry  
into Canada because the defendant is Canadian. Furthermore, Dyer said that one  
of the requirements for a traveller to board a flight to Canada was to provide a  
negative PCR test. That negative PCR test requirement, Dyer said, would be  
checked for by both the CBSA and the Public Health Agency of Canada. Dyer also  
said that the validity of the negative PCR test for the defendant was checked and it  
had been valid for the defendant.  
[42] In addition Dyer said that the issue for the defendant was the next stage which was  
about prevention, and that even though the defendant had been required to provide  
a negative PCR test 72 hours prior to getting on a flight returning to Canada, the  
defendant would have been exposed to other people after the negative test, and in  
order to minimize the risk of COVID being brought into Canada by people coming  
into Canada from abroad the defendant was required to do a Day 1 PCR test at the  
airport.  
(B) TESTIMONY OF THE DEFENDANT, WAI WUN (JANICE) HUNG  
[43] Wai Wun Hung, the defendant, testified that she is 27 years old and is employed  
as an onboarding specialist, in which the defendant introduces clients to software  
programs. She also said she has been employed in this position for 9 months.  
Prior to that, she said she had been laid off because of the COVID pandemic.  
[44] In respect to her arrival at Toronto Pearson International Airport on April 5, 2021,  
the defendant said that it had been Sunday and she had departed Columbia at 7:45  
a.m. on April 4, 2021, for Miami, Florida, and from Miami she flew to Toronto  
Pearson International Airport and landed there at about midnight. After proceeding  
through the CBSA area, she said she had obtained her luggage and then went to  
the screening area where she met Nicole Dyer. The defendant also said that Dyer  
did not ask her for a negative PCR test.  
17  
[45] In addition, the defendant said that she had believed that the requirement for entry  
into Canada was a negative PCR test and then 2 weeks of isolation. She also said  
that when she booked her flight for Toronto, she had looked up the entry  
requirements that were needed.  
[46] Furthermore, the defendant said that she had been in Columbia for a month. She  
also said that her original plan had been to return to Canada on March 6, 2021.  
However, the defendant said that she had booked two flights for Toronto, but both  
those flights had been cancelled by the airline, and as a result, she had been stuck  
abroad for one month. She also said that the additional time abroad had been from  
March 6, 2021, to April 4, 2021. In addition, the defendant said that staying abroad  
for an extra month had caused her financial hardship. When asked if she had  
support in Canada, the defendant replied that she only had her mother in Canada.  
[47] Moreover, when asked why she had travelled outside Canada, the defendant  
replied that she had needed to get away for her mental health.  
[48] The defendant also said that her intended plan had been to be out of Canada from  
December 27, 2020, to March 6, 2021.  
[49] In addition, the defendant said that when she had reached Screening Officer Dyer  
in the airport, Dyer had asked the defendant about the mandatory hotel and the  
COVID test. The defendant also said she had been told by Dyer that she would  
receive fines and the defendant had replied to Dyer, “O.K.”  
[50] When asked about what her quarantine plan had been, the defendant said that she  
had planned to stay in her friend’s condo for 2 weeks.  
[51] In addition, when asked what steps she had done in Columbia to ensure she had  
met the pre-entry travel requirements, the defendant said she needed a negative  
PCR test and 2 weeks of isolation.  
[52] In cross-examination, the defendant said that her purpose for travelling to Columbia  
had been to travel with a friend she had met in Mexico. The defendant also said  
she had been employed and working remotely in Columbia with her current  
employer. The defendant also explained that she had originally planned to travel  
to Mexico from December 27, 2020, to March 6, 2021, to work remotely and for  
pleasure.  
[53] In addition, she said she had no intention to travel to Columbia initially, but since  
she had been unable to travel back to Canada, she then planned to go to Columbia  
and to continue working In Columbia remotely for the same employer.  
[54] When asked what she did to inform herself about the entry requirements for  
returning to Canada, the defendant said she had the ArriveCAN app which had told  
her about the requirement of a negative PCR test. The defendant also said she  
18  
had Googled the entry requirements for flying back to Canada as a Canadian citizen  
on the Canadian government website and said that she also had to isolate for 2  
weeks in Canada.  
[55] But more importantly, the defendant said she had not been aware when she arrived  
in Canada that she had needed the additional entry requirements of undergoing a  
PCR test at the airport and to stay at a government-approved accommodation for  
3 days, although she said she had been aware of these two entry requirements  
through rumours she had heard about such requirements. However, the defendant  
said that Dyer had set out to the defendant the requirements of molecular testing  
when she arrived at the airport and to stay 3 days at a government-approved hotel.  
In addition, when asked if she had been aware of these entry requirements the  
defendant had said she was aware of them.  
[56] In addition, although the defendant did not inform Screening Officer Dyer about her  
financial circumstances, the defendant testified that she would have had a financial  
hardship if she had to stay for 3 days at a hotel. Furthermore, the defendant said  
that as a Canadian she had the right to enter Canada and not do “mandatory  
confinement”.  
[57] When asked about Googling about the entry requirements for flying back to Canada  
and her response to that query in which the defendant had believed the entry  
requirements consisted only of a negative PCR test and a plan to isolate for 2  
weeks, the defendant had responded that to stay for 3 days at a government-  
approved accommodation would have caused her financial hardship because she  
had to pay for an additional month of accommodation because her booked flights  
to Canada had been cancelled and that she could not return to Canada at the time  
she had originally planned. In addition, the defendant said that because she is also  
a Canadian, she had the right to re-enter Canada and had chosen to exercise her  
Charter rights at the airport on her return and not book a 3 day stay at a government-  
approved hotel nor to receive a Day 1 PCR test.  
[58] Moreover, the defendant said that the CBSA had given her a sticker. She also said  
that she had been asked to do an in-site test, but she had declined to do the test.  
The defendant also said she had been asked once to book accommodation at a  
government-approved hotel, but she had also declined to book the accommodation.  
[59] In addition, when she had been asked about her financial hardship, the defendant  
replied that she had to pay out of pocket for the 2 flights back to Canada that were  
cancelled and that she had to pay for living expenses and accommodation for an  
extra month of stay outside of Canada. She also said that she was still paying off  
student debts and that the government-approved accommodation for 3 days would  
have cost her $2,000. However, the defendant said that she did not inform Dyer  
that she was facing financial hardship and that she also had not been aware that  
there would be accommodation available for financial hardship cases.  
19  
[60] The defendant also said that she did not have any dependents and has moved back  
in with her mother, but does not pay any rent. She also said she works full-time  
presently and earns about $60,000 annually.  
[61] After her interaction with Dyer, the defendant said she had exited the airport and  
took an UBER to her friend’s condo where she had quarantined for 2 weeks. She  
also said that her friend was away, so she had been able to stay at her friend’s  
condo.  
[62] Furthermore, the defendant said that she did not experience any symptoms related  
to COVID on her arrival in Canada.  
[63] When asked if she had referenced any Orders-in-Council in respect to the entry  
requirements for travel back to Canada, the defendant said that she did not know  
about any Orders-in-Council, nor did she consult any Orders-in-Council. In  
addition, when shown a copy of the Order-In-Council that contained the entry  
requirements for travellers to enter Canada and that had applied to the defendant’s  
entry back into Canada, the defendant said that she did not recall seeing that  
document.  
[64] Furthermore, the defendant said she had been concerned with the cost of staying  
at a government-approved accommodation, but when asked about the requirement  
to take the Day 1 PCR test at the airport which was of no cost, the defendant said  
that since she already had a negative PCR test done before getting on the flight  
back to Canada, she did not think she had needed the Day 1 PCR test, even though  
Dyer had told the defendant that the Day 1 molecular (PCR) test was mandatory.  
[65] The defendant also said that she did not believe that she had to book a 3-day  
prepaid stay at a government-approved hotel or to undergo the Day 1 COVID-19  
molecular (PCR) test, since she had believed that it would have violated her Charter  
rights.  
[66] On re-examination, the defendant said that while she was in the layover in Miami  
on her way back to Canada from Columbia, she had looked up information about  
her Charter rights on returning to Canada and said that she had Charter rights under  
s. 6 of the Charter.  
(C) THE COVID-19 VIRUS AND VARIANTS OF CONCERN  
[67] The World Health Organization had declared a global pandemic on March 11, 2020,  
in respect to the COVID-19 virus. The virus that was causing COVID-19 is referred  
to as SARS-CoV-2 (Severe Acute Respiratory Syndrome Coronavirus 2).  
[68] Furthermore, Pentney J. of the Federal Court, at para. 11, in Spencer v. Canada  
(Attorney General), [2021] F.C.J. No. 360, in considering an application for an  
injunction brought against the federal governments emergency measures that had  
20  
been implemented to stop the entry and spread of the SARS-CoV-2 virus, had cited  
that the virus which causes the potentially severe and life-threatening respiratory  
disease of COVID-19, had as of March 11, 2021 (one year after the World Health  
Organization had declared a global pandemic), infected 899,757 people in Canada,  
and that there had been 22,370 deaths resulting from COVID-19 in Canada. But  
more significantly, Pentney J. had indicated that over time, scientists had  
determined that people can transmit the virus while pre-symptomatic or  
asymptomatic [emphasis is mine below]:  
COVID-19 was first detected in China in December 2019 and, by March 2020, the  
World Health Organization (WHO) had declared a global pandemic. Since then,  
the Government of Canada, as well as provincial and local governments, have  
adopted a wide range of public health measures to try to prevent or slow the spread  
of the SARS-CoV-2 virus -- the virus that causes the potentially severe and life-  
threatening respiratory disease of COVID-19. As of March 11, 2021, one year after  
the WHO declared a global pandemic, there had been 899,757 known infections  
and 22,370 deaths resulting from COVID-19 in Canada. Over time, scientists have  
determined that people can transmit the virus while pre-symptomatic or  
asymptomatic.  
[69] In addition, in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622, at  
paras. 19 to 27, Crampton C.J. of the Federal Court had explained that COVID-19  
is a disease that is caused by a coronavirus known as SARS-CoV-2. Crampton  
C.J. also indicated that COVID-19 was first detected in China in December 2019  
and has since spread across the globe. In the year following the detection of the  
COVID-19 virus, Crampton C.J. noted that it had been reported that the virus had  
infected more than 118 million people and to have been associated with 2.6 million  
deaths worldwide. In addition, Crampton C.J. said that as of January of 2021, three  
Variants of Concern had been identified: (1) B.1.1.7 (which was first identified in the  
United Kingdom), (2) B.1351 (which was first identified in South Africa), and (3) P.1  
(which was first identified in Brazil). And, as of February 11, 2021, Crampton C.J.  
stated that all three of those Variants of Concern had been identified in Canada and  
had infected approximately 458 individuals. And, by March 28, 2021, Crampton  
C.J. noted that 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 [emphasis is mine below]:  
III. COVID-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.  
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  
21  
period, there were 899,757 infections and 22,370 deaths resulting from COVID-19  
in Canada.  
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.  
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.  
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.  
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.  
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).  
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.  
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.  
22  
(D) THE FEDERAL GOVERNMENT’S JURISDICTION TO LEGISLATE IN  
RESPECT TO THE USE OF QUARANTINE  
[70] Under the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), the Parliament of  
Canada has been given the exclusive authority under s. 91(11) to make laws for  
the Peace, Order and good Government of Canada in respect to the use of  
“quarantine” [emphasis is mine below]:  
Legislative Authority of Parliament of Canada  
91. It shall be lawful for the Queen, by and with the Advice and Consent of the  
Senate and House of Commons, to make Laws for the Peace, Order, and  
good Government of Canada, in relation to all Matters not coming within the  
Classes of Subjects by this Act assigned exclusively to the Legislatures of the  
Provinces; and for greater Certainty, but not so as to restrict the Generality of  
the foregoing Terms of this Section, it is hereby declared that (notwithstanding  
anything in this Act) the exclusive Legislative Authority of the Parliament of  
Canada extends to all Matters coming within the Classes of Subjects next  
hereinafter enumerated; that is to say,  
11. Quarantine and the Establishment and Maintenance of Marine Hospitals.  
(E) OBJECTIVES OF THE QUARANTINE ACT, S.C. 2005, C. 20  
[71] The Quarantine Act, S.C. 2005, c. 20, is federal legislation enacted by the  
Parliament of Canada to regulate the use of quarantine to prevent the introduction  
and spread of communicable diseases in Canada. Furthermore, the Quarantine  
Act had been enacted after the 20022004 SARS outbreak in Canada. The Act  
grants powers to the Federal Government to designate quarantine facilities, require  
health screenings upon arrival or exit of the country, and issue emergency orders  
that impose conditions or prohibitions on the entry of individuals or imports in order  
to prevent the spread of communicable diseases. In addition, the Act imposes fines  
on those who disobey quarantine officers or quarantine orders. More importantly,  
in response to the COVID-19 pandemic the Federal Government of Canada has  
implemented health measures and entry requirements for travelers entering  
Canada from abroad through Emergency Orders that have been issued under the  
Quarantine Act.  
[72] The purpose of the Quarantine Act, as set out in the preamble and s. 4 of that  
legislation, states that it is to protect public health by taking comprehensive  
measures to prevent the introduction and spread of communicable diseases:  
An Act to prevent the introduction and spread of communicable diseases  
23  
Purpose  
4. The purpose of this Act is to protect public health by taking comprehensive  
measures to prevent the introduction and spread of communicable diseases.  
(F) HOW WERE THE MANDATED ENTRY REQUIREMENTS FOR AIR  
TRAVELLERS ENTERING CANADA FROM ABROAD LEGALLY  
CREATED AND IMPLEMENTED?  
[73] Section 58 of the Quarantine Act, S.C. 2005, c. 20, empowers the Governor-in-  
Council to issue emergency orders that prohibit entry into Canada or subject the  
entry into Canada of any class or persons who have been in a foreign country if the  
Government of Canada is of the opinion that there is an outbreak of a  
communicable disease in the foreign country; that the introduction or spread of the  
disease would pose an imminent and severe risk to public health in Canada; that  
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 that no  
reasonable alternatives to prevent the introduction or spread of the disease are  
available. In addition, the emergency order will have effect for the period specified  
in it and may be renewed if the conditions for using the emergency orders continue  
to apply:  
Emergency Orders  
Order prohibiting entry into Canada  
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  
(a) there is an outbreak of a communicable disease in the foreign country;  
(b) the introduction or spread of the disease would pose an imminent and  
severe risk to public health in 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  
(d) no reasonable alternatives to prevent the introduction or spread of the  
disease are available.  
Effect of order  
(2) The order has effect for the period specified in it and may be renewed if the  
conditions in subsection (1) continue to apply.  
24  
(G) SOME OF THE ENTRY REQUIREMENTS AND HEALTH MEASURES  
THAT WERE ISSUED BY EMERGENCY ORDERS UNDER THE  
QUARANTINE ACT IN 2020 AND 2021 TO PREVENT THE SPREAD OF  
THE COVID-19 ILLNESS THROUGH TRAVELLERS ENTERING CANADA  
FROM ABROAD  
[74] During the years 2020 and 2021, the Public Health Agency of Canada under the  
Quarantine Act implemented entry requirements and health measures which  
included: banning certain foreign nationals travelling to Canada from all countries  
with limited exceptions for persons travelling from the United States; prohibiting  
foreign nationals from travelling to Canada for optional or discretionary purposes;  
requiring all persons who enter Canada to isolate or quarantine for 14 days;  
requiring air travellers who are 5 years and older entering Canada from abroad to  
provide proof of a current negative COVID-19 molecular test taken within 72 hours  
before the aircraft’s initialed scheduled departure time or to present proof of a  
positive COVID-19 result of a test performed 14 to 90 days prior to the initial  
scheduled arrival time; requiring air travellers entering Canada from abroad who  
do not provide proof of a current negative COVID-19 molecular test to quarantine  
for 14 days at a designated federal facility or at an alternate site deemed  
appropriate by a quarantine officer; requiring air travellers entering Canada from  
aboard of having to stay at a government-approved accommodation while awaiting  
the first post-entry COVID-19 molecular test and the requirement for them to submit  
evidence by electronic means that they have pre-booked and pre-paid for  
government-approved accommodation for a three-day period prior to boarding their  
flight to Canada that would be verified on arrival; requiring air travellers entering  
Canada from aboard of having to provide a suitable quarantine plan for 14 days;  
travellers entering from abroad having to answer questions and provide information  
to peace officers on request; requiring all travellers entering Canada from abroad  
to undergo a COVID-19 molecular test at the time of entry and once again during  
the 14 day entry period while in quarantine; requiring all travellers entering Canada  
from abroad having to provide their contact information and a suitable quarantine  
plan electronically prior to seeking entry to Canada; and prohibiting foreign  
nationals from entering Canada from the United States if they fail to meet the pre-  
arrival testing obligations.  
(H) WHY WERE THE ENTRY REQUIREMENTS FOR AIR TRAVELLERS  
ENTERING CANADA FROM ABROAD IMPLEMENTED?  
[75] Pentney J. in Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.),  
at paras. 15 to 23, explained that the policy reason for the Federal Government  
creating and implementing entry requirements for travellers from outside Canada  
arriving by air had been because of the emergence of the COVID-19 variants of  
concern which had triggered a series of responses in Canada and abroad. Pentney  
J. also noted that as of December 27, 2020, there were six known or suspected  
cases of the B.1.1.7 variant in Canada and that the federal government’s response  
25  
to the variants of concern had been to suspend all incoming flights from the United  
Kingdom until January 6, 2021, and to implement a pre-departure testing  
requirement for all travellers entering Canada by air on January 7, 2021. Pentney  
J. further indicated that as of January 7, 2021, travellers entering Canada were  
required to provide written proof of a negative COVID-19 molecular (PCR) test  
performed no more than 72 hours prior to the scheduled departure of their flight to  
Canada, or to provide a positive test result from between 14 to 90 days prior to  
departure. In addition, Pentney J. noted that by February 11, 2021, there were 458  
known COVID-19 cases in Canada involving a variant of concern, including the first  
detected case of the P.1 variant from Brazil. In addition, Pentney J. indicated that  
the data from two studies of incoming travellers to Canada had shown a threefold  
increase in the number of flights with at least one positive case between September  
2020 and January 2021. Pentney J. also reasoned that this data had confirmed  
that these numbers had increased despite a relatively stable volume of international  
air passengers arriving in Canada during this period and that the increase in  
numbers had shown that a higher proportion of travellers were infected when they  
arrived in Canada. Moreover, Pentney J. commented on other data that indicated  
between September and December 2020, after the requirement for pre-departure  
testing was imposed, approximately 2% of travellers were testing positive for  
COVID-19. Pentney J. also remarked that evidence from an Alberta pilot project,  
which was conducted at the Calgary International Airport and the Coutts land border  
crossing, showed that international travellers arriving in Canada were exposing and  
potentially infecting others with whom they had contact during the period when they  
were instructed to remain in isolation and to quarantine at home. In addition, even  
after the pre-departure testing had been implemented, Pentney J. said that the  
Alberta study had also revealed that 1.86% of participants had tested positive within  
14 days of their return and that 68% had tested positive on arrival. Furthermore,  
Pentney J. indicated that in the Affidavit of Kimby Barton, who was one of the  
Respondent's affiants, Barton had explained that "for every flight of 100 people  
arriving in Canada, on average one or two were infected with COVID-19".  
Moreover, Pentney J. mentioned other data from the Alberta study, as well as a  
McMaster Health Labs testing pilot, that had shown that the majority of imported  
COVID-19 cases were detected on arrival (67-69%), but a further 25.8% were only  
identified by testing at day seven, with the remaining 5.6% positive cases identified  
by testing at day 14. Also, Pentney J. noted that data from testing of travellers on  
flights from January 10 to 18, 2021, who had arrived from a country lacking the  
resources to administer pre-departure testing had shown a COVID-19 positivity rate  
of 6.8% in asymptomatic travellers. Furthermore, Pentney J. indicated that since  
the start of the COVID-19 pandemic in March of 2020, the Governor-in-Council or  
Administrator-in-Council had issued 47 Orders-in-Council pursuant to section 58 of  
the Quarantine Act, which sets out the legal requirements for emergency orders  
[emphasis is mine below]:  
B. Emerging Variants of the COVID-19 Virus  
26  
As with other viruses, the virus that causes COVID-19 naturally mutates over time  
through a change in its genetic material. While not all variants are of public health  
concern, some variants cause increased transmissibility, and an increase in  
virulence (i.e. the severity of the disease), or a decrease in the effectiveness of  
available diagnostics, vaccines, and treatments. These are known as variants of  
concern (VOC). At the time of the hearing, the record reflected three such VOC  
having been identified for COVID-19, while other variants remained under study.  
On December 18, 2020, Public Health England designated a new VOC identified  
as B.1.1.7, which had been circulating in the United Kingdom since at least  
September 2020. On December 18, 2020, South Africa also reported a new VOC,  
which was ultimately labelled as B.1.351. By December 29, 2020, the European  
Centre for Disease Prevention and Control assessed that the introduction of the  
B.1.1.7 and B.1.351 variants was concerning and could result in an increase in  
hospitalizations and deaths. Evidence emerged that the B.1.1.7 VOC is up to 70%  
more transmissible than the previously circulating virus.  
A further new VOC originating from Brazil was identified on January 9, 2021, and  
was labelled the P.1 variant. Evidence emerged from scientific studies that both  
the P.1 and B.1.351 variants were more transmissible than earlier strains of the  
virus, and that vaccines were potentially less effective against them. It was also  
revealed that the P.1 variant might evade protective immunity from prior infection,  
so that people were susceptible to reinfection even if they had previously  
recovered from an earlier strain of COVID-19.  
The emergence of the COVID-19 VOC triggered a series of responses in Canada  
and abroad.  
As of December 27, 2020, there were six known or suspected cases of the B.1.1.7  
variant in Canada. The Government of Canada suspended all incoming flights from  
the United Kingdom until January 6, 2021, and implemented a pre-departure  
testing requirement for all travellers entering Canada by air on January 7, 2021.  
As of that date, travellers entering Canada were required to provide written proof  
of a negative COVID-19 molecular test performed no more than 72 hours prior to  
boarding their flight to Canada, or a positive test result from between 14 to 90 days  
prior to departure.  
By February 11, 2021, there were 458 known COVID-19 cases in Canada involving  
a VOC, including the first detected case of the P.1 variant from Brazil. In addition,  
data from two studies of incoming travellers to Canada showed a threefold  
increase in the number of flights with at least one positive case between  
September 2020 and January 2021. This data confirmed that these numbers had  
increased despite a relatively stable volume of international air passengers arriving  
into Canada during this period (i.e. the increase showed that a higher proportion  
of travellers were infected when they arrived in Canada).  
Several other important data points also emerged during this period. Between  
September and December 2020, after the requirement for pre-departure testing  
was imposed, approximately 2% of travellers were testing positive for COVID-19.  
Evidence from an Alberta pilot project, which was conducted at the Calgary  
27  
International Airport and the Coutts land border crossing, showed that international  
travellers arriving in Canada were exposing and potentially infecting others with  
whom they had contact during the period when they were instructed to remain in  
isolation and to quarantine at home. The Alberta study also revealed that, even  
after the pre-departure testing was implemented, 1.86% of participants tested  
positive within 14 days of their return, 68% of whom tested positive on arrival. As  
one of the Respondent's affiants explains: "In other words, for every flight of 100  
people arriving in Canada, on average one or two were infected with COVID-19"  
(Affidavit of Kimby Barton, RR, Vol 1 at p 10).  
Data from the Alberta study as well as a McMaster Health Labs testing pilot  
showed that the majority of imported COVID-19 cases were detected on arrival  
(67-69%), but a further 25.8% were only identified by testing at day seven, with the  
remaining 5.6% positive cases identified by testing at day 14. Additionally, data  
from testing of travellers on flights from January 10-18, 2021, arriving from a  
country lacking the resources to administer pre-departure testing showed a  
COVID-19 positivity rate of 6.8% in asymptomatic travellers.  
C. Public Health Measures and Orders-in-Council  
To respond to the changing landscapes, since the start of the COVID-19 pandemic  
in March 2020, the Governor-in-Council or Administrator-in-Council has issued 47  
Orders-in-Council pursuant to section 58 of the Quarantine Act, SC 2005, c 20,  
which sets out the following requirements for emergency orders:  
Order prohibiting entry into Canada  
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  
(a) there is an outbreak of a communicable disease in the foreign country;  
(b) the introduction or spread of the disease would pose an imminent and  
severe risk to public health in 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  
(d) no reasonable alternatives to prevent the introduction or spread of the  
disease are available.  
[76] In addition, Pentney J. stated at paras. 24 to 29 in Spencer v. Canada (Attorney  
General) that the Emergency Order with preventive measures that had been  
adopted in February of 2021, had been in response to the rapid rise in the number  
of detected cases and Variants Of Concern in Canada and the cumulative evidence  
gathered by the Alberta and McMaster Health Lab studies. Pentney J. also noted  
that on February 14, 2021, the Minimizing the Risk of Exposure to COVID-19 in  
Canada Order (Quarantine, Isolation, and Other Obligations), PC #2021-0075,  
28  
(2021) Canada Gazette, Part 1, Vol. 155, No 8, at p. 673, as corrected by Canada  
Gazette, Part 1, Vol. 144, No. 9, at p. 854 came into effect and which had  
established a number of requirements which were intended to add to the existing  
protections against the importation of new variants of COVID-19 into the country.  
These measures had included:  
a) pre-departure COVID-19 molecular testing;  
b) COVID-19 molecular testing upon arrival in Canada;  
c) a suitable 14-day quarantine plan;  
d) a requirement to book prepaid accommodation at a government-  
authorized accommodation for a three-night period, beginning on the day  
of arrival in Canada;  
e) daily reporting of symptoms following arrival in Canada;  
f) a further COVID-19 molecular test on or about day 10 after arrival.  
Pentney J. also stated that on March 21, 2021, Order-in-Council PC #2021-0075  
was replaced by a virtually identical one: Minimizing the Risk of Exposure to COVID-  
19 in Canada Order (Quarantine, Isolation, and Other Obligations), PC #2021-0174,  
(2021) Canada Gazette, Part 1, Vol. 144, No. 14, 1499, which was set to expire on  
April 21, 2021, and which is the Emergency Order that applies to the defendant  
when she had arrived by air on April 5, 2021. Moreover, Pentney J. commented  
that Order-In-Council PC #2021-0174 has the same purpose and largely mirrors  
Order-In-Council PC #2021-0075. Additionally, Pentney J. noted that Order-In-  
Council PC #2021-0174 sets out limited exceptions to the requirements for air  
travellers entering Canada from abroad to stay at a government-approved hotel for  
3 days. These exceptions Pentney J. explained included persons entering Canada  
to receive essential medical treatment or those returning to Canada after having  
received essential medical treatment elsewhere, and persons entering Canada for  
the purposes of providing emergency services within 14 days of entry [emphasis is  
mine below]:  
Of relevance to this injunction application is the Order-in-Council adopted in  
response to the rapid rise in the number of detected cases and VOC in Canada and  
the cumulative evidence gathered by the Alberta and McMaster Health Lab studies,  
which spurred government officials to consider further preventive measures.  
On February 14, 2021, Minimizing the Risk of Exposure to COVID-19 in Canada  
Order (Quarantine, Isolation, and Other Obligations), PC 2021-75, (2021) C Gaz,  
Part 1, Vol 155, No 8, 673, as corrected by C Gaz, Part 1, Vol 144, No 9, 854 [PC  
2021-75] came into effect, establishing a number of requirements intended to add  
to the existing protections against the importation of new variants of COVID-19 into  
the country. These measures include:  
a) pre-departure COVID-19 molecular testing;  
b) COVID-19 molecular testing upon arrival in Canada;  
c) a suitable 14-day quarantine plan;  
29  
d) a requirement to book prepaid accommodation at a government-  
authorized accommodation for a three-night period, beginning on the day  
of arrival in Canada;  
e) daily reporting of symptoms following arrival in Canada;  
f) a further COVID-19 molecular test on or about day 10 after arrival.  
Two types of government-approved facilities are contemplated for air travellers under  
the measures in PC 2021-75: (i) a government-authorized accommodation (GAA) and  
(ii) a designated quarantine facility (DQF). First, air travellers must go to a GAA near  
their first port of entry where they wait for the results of their molecular testing, which  
they are required to take upon arrival. GAAs are hotels that air travellers must pre-  
book and prepay for a three-night stay at their own expense. Asymptomatic travellers  
may check-out of the GAA upon receiving a negative result from their COVID-19 test  
taken upon arrival (they must complete the remainder of the 14-day quarantine at  
home, however). Those who test positive are contacted by a Public Health Agency of  
Canada (PHAC) Quarantine Officer to verify that they continue to have a suitable  
isolation plan and are able to get there by a private mode of transportation. If travellers  
do not have a suitable place to isolate, the Quarantine Officer will direct them to a DQF  
to isolate for the remainder of their 14-day mandatory isolation.  
In addition to housing COVID-19 positive air travellers who do not have a suitable  
isolation plan, DQFs are for air travellers who are showing symptoms of COVID-19  
upon arrival, those who arrive without an approved pre-departure test (i.e. a molecular  
COVID-19 test), or those who refuse to be tested upon arrival.  
On March 21, 2021, Order-in-Council PC 2021-75 was replaced by a virtually identical  
one: Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine,  
Isolation, and Other Obligations), PC 2021-174, (2021) C Gaz, Part 1, Vol 144, No 14,  
1499 [PC 2021-174], which was set to expire on April 21, 2021. PC 2021-174 has the  
same purpose and largely mirrors PC 2021-75. Additionally, it sets out limited  
exceptions to the requirements for air travellers to stay at a GAA. These exceptions  
include persons entering Canada to receive essential medical treatment or those  
returning to Canada after having received essential medical treatment elsewhere, and  
persons entering Canada for the purposes of providing emergency services within 14  
days of entry.  
Although PC 2021-174 and PC 2021-75 are necessarily related, the injunctive relief  
sought by the Applicants asks this Court to suspend PC 2021-174 pending the  
determination of their application on its merits, given that PC 2021-75 was repealed  
when PC 2021-174 came into effect. Specifically, the Applicants impugn the  
requirement to stay at a GAA while awaiting test results and the stipulation that certain  
individuals would have to go to a DQF upon arrival if they had symptoms of COVID-  
19, or had failed to obtain a molecular pre-departure test and/or refused to undergo a  
test upon arrival.  
30  
(I) THE ENTRY REQUIREMENTS FOR AIR TRAVELLERS ENTERING  
CANADA FROM ABROAD ON APRIL 5, 2021, THAT ARE RELEVANT  
TO THE DEFENDANT  
[77] The two entry requirements for air travellers entering Canada from abroad of having  
to book a 3-day prepaid stay at a government-approved hotel and having to  
undergo the Day 1 COVID-19 molecular (PCR) test at the airport upon arrival, which  
were allegedly not complied with by the defendant on April 5, 2021, and which led  
to the defendant being charged with offences under ss. 15(3) and 58 the Quarantine  
Act, S.C. 2005, c. 20, are measures issued by the Administrator in Council under  
Order-In-Council P.C. #2021-0174 on March 19, 2021. Order-In-Council P.C.  
#2021-0174 is entitled the Minimizing the Risk of Exposure to COVID-19 in Canada  
Order (Quarantine, Isolation and Other Obligations)” and had replaced Order-In-  
Council P.C. # 2021-0075 that was issued on February 14, 2021. This particular  
Emergency Order, which applies to the defendant, cease to have effect at 11:59:59  
p.m. Eastern Daylight Time on April 21, 2021.  
[78] In addition, there were other entry requirements under Order-In-Council P.C.  
#2021-0174 that are relevant to the defendant. These include the entry requirement  
of having to provide to the aircraft operator a negative COVID-19 molecular test  
within 72 hours of the scheduled departure of the flight to Canada and having to  
provide a suitable quarantine plan for 14 days electronically to the Minister of Health  
before boarding the flight to Canada.  
(1) Why Did The Federal Government Implement The Entry  
Requirements Or Measures Under Order-in-Council PC #2021-  
0174 That Was Issued On March 19, 2021, Such As The Booking  
And Prepaying For A 3-Day Stay At A Government-Approved  
Hotel And Having To Undergo The Day 1 COVID-19 Molecular  
(PCR) Test For Air Travellers Entering Canada From Abroad?  
(a) Objective of Order-In Council PC #2021-0174  
[79] The objective of Order-In Council PC #2021-0174, which is the Emergency Order  
that is applicable to the defendant on April 5, 2021, is set out on p. 1537 in the  
Explanatory Note” that follows the Order which had been published in the Canada  
Gazette Part I, Volume 155, Number 14, and states that it is to maintain Canada’s  
focus on reducing the introduction and further spread of COVID-19 and new  
variants of the virus into Canada by decreasing the risk of importing cases from  
outside the country [emphasis is mine below]:  
EXPLANATORY NOTE  
Objective  
31  
This Order, like its predecessor, maintains Canada’s focus on reducing the  
introduction and further spread of COVID-19 and new variants of the virus into  
Canada by decreasing the risk of importing cases from outside the country. This  
Order repeals and replaces the previous order of the same name with some  
changes as described below in the Implications section. It comes into force on  
March 21, 2021, and expires on April 21, 2021. This Order continues to require all  
persons who enter Canada, whether by air, land, or sea, to provide accurate  
contact information for the first 14 days in Canada, to answer questions to  
determine if they have signs or symptoms of COVID-19 and, with limited  
exemptions, quarantine or isolate for 14 days from the day upon which they  
entered Canada. The Order maintains all requirements for travellers to have a  
negative COVID-19 molecular test result before entering Canada, and to undergo  
testing when entering and once again later in the 14-day post-entry period, subject  
to limited exceptions. This Order also continues to require that all travellers  
entering Canada by air, with limited exceptions, enter a government-authorized  
accommodation near the first port of entry while awaiting the result of the first post-  
entry test.  
[80] The purpose for implementing the measures and entry requirements for travellers  
entering Canada from abroad that are contained in Order-In-Council PC #2021-  
0174 is also set out in the preamble of that Emergency Order, which included that  
the Administrator-in-Council was of the opinion, based on the declaration of a  
pandemic by the World Health Organization, that there is an outbreak of a  
communicable disease, namely coronavirus disease 2019 (COVID-19), in the  
majority of foreign countries and that the introduction or spread of the disease  
would pose an imminent and severe risk to public health in Canada; that the  
Administrator in Council is of the opinion that the entry of persons into Canada who  
have recently been in a foreign country may introduce or contribute to the spread  
in Canada of the disease or of new variants of the virus causing COVID-19 that  
pose risks that differ from those posed by other variants but that are equivalent or  
more serious; and that the Administrator in Council is of the opinion that no  
reasonable alternatives to prevent the introduction or spread of the disease are  
available [emphasis is mine below]:  
Whereas the Administrator in Council is of the opinion, based on the declaration  
of a pandemic by the World Health Organization, that there is an outbreak of a  
communicable disease, namely coronavirus disease 2019 (COVID-19), in the  
majority of foreign countries;  
Whereas the Administrator in Council is of the opinion that the introduction or  
spread of the disease would pose an imminent and severe risk to public health in  
Canada;  
Whereas the Administrator in Council is of the opinion that the entry of persons  
into Canada who have recently been in a foreign country may introduce or  
contribute to the spread in Canada of the disease or of new variants of the virus  
causing COVID-19 that pose risks that differ from those posed by other variants  
but that are equivalent or more serious;  
32  
And whereas the Administrator in Council is of the opinion that no reasonable  
alternatives to prevent the introduction or spread of the disease are available;  
Therefore, His Excellency the Administrator of the Government of Canada in  
Council, on the recommendation of the Minister of Health, pursuant to section 58  
of the Quarantine Act, makes the annexed Minimizing the Risk of Exposure to  
COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations).  
(2) Definitions That Are Relevant To The Defendant’s Two Charges  
Under The Quarantine Act  
[81] The following definitions set out in s. 1.1 of Order-In-Council PC #2021-0174 are  
applicable to the defendant’s two charges:  
Definitions  
1.1 The following definitions apply in this Order.  
Chief Public Health Officer means the Chief Public Health Officer appointed under  
subsection 6(1) of the Public Health Agency of Canada Act. (administrateur en chef)  
COVID-19 molecular test means a COVID-19 screening or diagnostic test carried out  
by an accredited laboratory, including a test performed using the method of polymerase  
chain reaction (PCR) or reverse transcription loop-mediated isothermal amplification  
(RT-LAMP). (essai moléculaire relatif à la COVID-19)  
evidence of a COVID-19 molecular test means evidence of a COVID-19 molecular  
test that contains the following elements:  
(a) the name and date of birth of the person whose specimen was collected for  
the test;  
(b) the name and civic address of the laboratory that administered the test;  
(c) the date the specimen was collected and the test method used; and  
(d) the test result. (preuve d’essai moléculaire relatif à la COVID-19)  
government-authorized accommodation means an accommodation that is  
authorized by  
(a) the Public Health Agency of Canada, Canadian Forces, Department of  
Citizenship and Immigration, Department of Employment and Social  
Development or Department of Agriculture and Agri-Food, or  
33  
(b) the government of a province with agreement from the Government of  
Canada. (lieu d’hébergement autorisé par le gouvernement)  
isolation means the separation of persons who have reasonable grounds to suspect  
that they have COVID-19, who have signs and symptoms of COVID-19 or who know  
that they have COVID-19, in such a manner as to prevent the spread of the disease.  
(isolement)  
quarantine means the separation of persons in such a manner as to prevent the  
possible spread of disease. (quarantaine)  
quarantine facility means a place that is designated under section 7 of the Quarantine  
Act or that is deemed to be designated under subsection 8(2) of that Act, and that is  
chosen by the Chief Public Health Officer. (installation de quarantaine)  
signs and symptoms of COVID-19 include a fever and a cough or a fever and  
difficulty breathing. (signes et symptômes de la COVID-19)  
(3) PROVIDING A SUITABLE QUARANTINE PLAN FOR 14 DAYS  
(a) When was the entry requirement first implemented for air  
travellers entering Canada from abroad of having to provide  
by electronic means to the Minister of Health a suitable  
quarantine plan for 14 days before boarding the flight to  
Canada?  
[82] The entry requirement for travellers entering Canada by air of providing a suitable  
“quarantine plan” for 14 days by electronic means to the Minister of Health was  
effective and first implemented at 11:59:59 p.m. on November 20, 2020, by s. 15 of  
the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory  
Isolation), No. 7, P.C. #2020-0840, (October 30, 2020) Canada Gazette Part I,  
Volume 154, Number 45, November 27, 2020, pursuant to s. 58 of the Quarantine  
Act. This entry requirement was set out in s. 1.1(2) of Order-In-Council P.C. #2020-  
0840:  
Amendments to this Order  
15. This Order is amended by adding the following after section 1:  
Requirements Before or When  
Entering Canada  
Quarantine plan entering by aircraft  
1.1(2) Subject to subsection (4), every person must meet the following  
requirements before boarding a flight to Canada:  
34  
(a) they must provide to the Minister of Health a quarantine plan  
that includes, among other things, the civic address of the  
place where they plan to quarantine themselves during the  
14-day period that begins on the day on which they enter  
Canada and their contact information for that period; and  
(b) they must provide the quarantine plan referred to in  
paragraph (a) by electronic means specified by the Minister  
of Health, unless they are in a class of persons who, as  
determined by the Minister of Health, are unable to submit  
their quarantine plans by electronic means for a reason such  
as a disability, inadequate infrastructure, a service disruption,  
or a natural disaster, in which case the quarantine plan may  
be provided in a form and manner and at a time specified by  
the Minister of Health.  
(b) The entry requirement for air travellers entering Canada from  
abroad of having to provide a Quarantine Plan for 14 days by  
electronic means to the Minister of Health, screening officer,  
or quarantine officer was still in effect on April 5, 2021  
[83] The entry requirement for air travellers entering Canada from abroad to provide a  
“quarantine plan” for 14 days by electronic means to the Minister of Health before  
boarding the flight to Canada was still in effect on April 5, 2021, when the defendant  
arrived at Toronto Pearson International Airport. This was by virtue of the  
Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine,  
Isolation and Other Obligations), Order-In-Council P.C. #2021-0174, (March 19,  
2021).  
[84] The suitable “quarantine plan” entry requirement that was in effect on April 5, 2021,  
is contained in ss. 3.1(a)(ii)(A), 3.1(a)(ii)(B), and 3.2(3) of Order-In Council PC  
#2021-0174, and requires the air traveller entering Canada having to provide to the  
Minister of Health their contact information and the name and civic address of the  
government-authorized accommodationwhere they plan to quarantine  
themselves during the period that begins on the day on which they enter Canada  
and to remain in quarantine until the day on which they receive the result for the  
COVID-19 molecular test (the 3-day stay) and the civic address of the place where  
they plan to quarantine themselves during the period that begins on the day on  
which they receive evidence of a negative result for the COVID-19 molecular test  
and remain in quarantine for the remainder of the 14-day period that begins on the  
day on which they enter Canada. And, under ss. 3.2(2) and 3.2(3), before the air  
traveller boards the flight to Canada, they must provide the quarantine plan by  
electronic means that has been specified to the Minister of Health. And when the  
traveller enters Canada, under s. 3.2(1) the traveller has to provide the suitable  
35  
quarantine plan to the Minister of Health, screening officer, or quarantine officer  
[emphasis is mine below]:  
Quarantine Plan and Other Measures  
Suitable quarantine plan  
3.1 A suitable quarantine plan must  
(a) include  
(i) in the case of a person entering Canada by a mode of transport other  
than aircraft, the civic address of the place where they plan to  
quarantine themselves during the 14-day period that begins on the  
day on which they enter Canada,  
(ii) in the case of a person entering Canada by aircraft,  
(A) the name and civic address of the government-authorized  
accommodation where they plan to quarantine themselves  
during the period that begins on the day on which they enter  
Canada and to remain in quarantine until the day on which they  
receive the result for the COVID-19 molecular test referred to in  
paragraph 2.3(1)(a), and  
(B) the civic address of the place where they plan to quarantine  
themselves during the period that begins on the day on which  
they receive evidence of a negative result for the COVID-19  
molecular test referred to in paragraph 2.3(1)(a) and remain in  
quarantine for the remainder of the 14-day period that begins on  
the day on which they enter Canada, and  
(iii) their contact information for the 14-day period that begins on the day  
on which they enter Canada;  
(b) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows them to avoid all contact with other  
people with whom they did not travel unless they are a minor, in which  
case the minor can have contact with other people who are providing  
care and support to the minor and who reside with the minor during the  
14-day period that begins on the day on which they enter Canada or that  
begins again under subsection 4.9(1);  
(c) indicate that no person will be present at the place referred to in  
subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, unless that  
person resides there habitually;  
(d) indicate that the person has access to a bedroom at the place referred to  
in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, that is  
36  
separate from the one used by persons who did not travel with and enter  
Canada with that person;  
(e) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows the person to access the necessities  
of life without leaving that place;  
(f) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows the person to avoid all contact with  
vulnerable persons and persons who provide care to those persons,  
unless the vulnerable person is a consenting adult or the parent or  
dependent child in a parent-child relationship; and  
(g) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows the person to avoid all contact with  
health care providers and persons who work or assist in a facility, home  
or workplace where vulnerable persons are present.  
Quarantine plan requirements  
3.2(1) Subject to subsection 3.3(1), every person who enters Canada must provide  
to the Minister of Health, screening officer or quarantine officer a quarantine  
plan that meets the requirements set out in section 3.1.  
Quarantine plan mode of transport  
(2) For the purposes of subsection (1), the person must provide their quarantine  
plan  
a) before entering Canada, if the person enters Canada by land;  
b) before boarding the aircraft for the flight to Canada, if the person enters  
Canada by aircraft; or  
c) before or when entering Canada, if the person enters Canada by water.  
Electronic means land and aircraft  
(3) A person referred to in paragraphs (2)(a) and (b) must provide the quarantine  
plan referred to in subsection (1) by electronic means specified by the Minister  
of Health, unless they are a member of a class of persons who, as determined  
by the Minister, are unable to submit their quarantine plan by electronic  
means for a reason such as a disability, inadequate infrastructure, a service  
disruption or a natural disaster, in which case the quarantine plan may be  
provided in the form and manner and at the time specified by the Minister of  
Health.  
37  
(i) What is the “electronic means” that has been  
specified by the Minister of Health for providing the  
quarantine plan to the Minister of Health,  
[85] The “electronic means” that has been specified by the Minister of Health for  
providing the quarantine plan to the Minister of Health was for air travellers entering  
Canada to use the ArriveCANmobile app. The ArriveCAN mobile app had been  
the only electronic means specified and adopted by the Minister of Health which  
commenced on November 21, 202011 and was still the method used on April 5,  
2021.  
[86] The defendant had testified that she had indeed used the ArriveCAN app and had  
provided her quarantine plan electronically. Under s. 3.1 of Order-In-Council P.C.  
#2021-0174, the 14-day quarantine plan entry requirement for air travellers entering  
Canada from abroad, in which the air traveller had to provide the “quarantine plan”  
by electronic means (by using the ArriveCAN app) to the Minister of Health before  
boarding their flight to Canada, had to include the name and civic address of the  
government-authorized accommodationwhere they had planned to quarantine  
themselves during the period that begins on the day on which they enter Canada  
and to remain in quarantine until the day on which they receive the result for the  
11  
See news release dated November 2, 2020, entitled “Government of Canada announces new mandatory requirements  
for travellers to Canada”,  
online: Government of Canada (Public Health Agency of Canada) website  
<<https://www.canada.ca/en/public-health/news/2020/11/government-of-canada-announces-new-mandatory-  
requirements-for-travellers-to-canada.html>>:  
Government of Canada announces new mandatory requirements for travellers to Canada  
News release  
November 2, 2020 - Ottawa, ON - Public Health Agency of Canada  
As part of Canada’s efforts to reduce the spread of COVID-19, all travellers are required to provide specific  
information upon and after entry into Canada. This includes requirements to provide a quarantine plan  
and contact and travel information. The Government of Canada introduced ArriveCAN in April 2020 to  
create a secure and user-friendly way to help travellers comply with these border measures. ArriveCAN  
is available as a mobile app or by signing in online.  
Today, the Government of Canada announced new mandatory requirements for travellers to Canada.  
Pre-arrival to Canada:  
As of November 21, 2020, air travellers whose final destination is Canada will be required to submit their  
information electronically through ArriveCAN before they board their flight. This includes travel and  
contact information, quarantine plan (unless exempted under conditions set out in the Mandatory Isolation  
Order), and COVID-19 symptom self-assessment. Travellers must be ready to show their ArriveCAN  
receipt when seeking entry into Canada; a border services officer will verify that they have submitted their  
information digitally. Travellers who do not submit the required information digitally before boarding their  
flight could be subject to enforcement action, which can range from verbal warnings to $1,000 fine.  
Exceptions will be made for those unable to submit documents electronically due to personal  
circumstances, such as disability or inadequate infrastructure.  
Starting on November 4, 2020, air travellers can expect to be reminded by their air carrier of the need to  
submit COVID-related information digitally through ArriveCAN prior to boarding their flight to Canada.  
38  
COVID-19 molecular test (first 3 days of the 14 days) and the civic address of the  
place where they plan to quarantine themselves during the period that begins on  
the day on which they receive evidence of a negative result for the COVID-19  
molecular test and remain in quarantine for the remainder of the 14-day period that  
begins on the day on which they enter Canada (the remaining 11 days of the 14  
days). Accordingly, when the defendant had to submit her 14-day quarantine plan  
by electronic means (using the ArriveCAN app) to the Minister of Health before she  
boarded her flight back to Canada, she would have become aware or ought to have  
been aware before she boarded her flight to Canada of the requirement to provide  
the civic address of the “government-authorized accommodation” where she would  
have to stay for the first 3 days of her 14-day quarantine after entering Canada,  
since she had been legally required to provide the name and the civic address of  
the government-authorized hotel as part of her 14-day quarantine plan to the  
Minister of Health prior to boarding her flight to Canada.  
(4) PROVIDING A NEGATIVE COVID-19 MOLECULAR (PCR) TEST TO  
THE AIRCRAFT OPERATOR WITHIN 72 HOURS BEFORE THE  
SCHEDULED DEPARTURE OF THE FLIGHT TO CANADA  
(a) When was the entry requirement for air travellers entering  
Canada from abroad of having to provide a negative COVID-  
19 molecular (PCR) test to the aircraft operator within 72  
hours before the aircraft’s initial scheduled departure time  
for Canada first implemented?  
[87] The entry requirement for travellers entering Canada by air of providing a “negative  
COVID-19 molecular (PCR) test within 72 hours before the aircraft’s initial  
scheduled departure time for Canadato the aircraft operator was effective and first  
implemented at 11:59:59 p.m. on January 6, 2021, by virtue of the Minimizing the  
Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation), No. 7, P.C.  
#2021-0001, (January 6, 2021) Canada Gazette Part I, Volume 155, Number 3,  
January 16, 2021, pursuant to s. 58 of the Quarantine Act. This requirement for an  
air traveller to provide to the aircraft operator a “negative COVID-19 molecular  
(PCR) test within 72 hours before the aircraft’s initial scheduled departure time for  
Canada” is set out in s. 1.1(3)(a)(i) of Order-In-Council P.C. #2021-0001 which  
provides:  
Requirements Before or When Entering Canada  
Entering by aircraft COVID-19 molecular test and quarantine plan  
1.1(3) Subject to subsection (4), every person who enters Canada by aircraft  
must meet the following requirements:  
(a) before boarding the aircraft for the flight to Canada, they must:  
39  
(i) if the person is five years of age or older, provide to the aircraft  
operator evidence containing the following elements that they  
received a negative result for a COVID-19 molecular test that was  
performed on a specimen that was collected no more than 72  
hours, or no more than another period under any other provision  
of the Aeronautics Act, before the aircraft’s initial scheduled  
departure time:  
(A) the person’s name and date of birth,  
(B) the name and civic address of the laboratory that  
administered the test,  
(C) the date the specimen was collected and the test method  
used, and  
(D) the test results,  
(ii) provide to the Minister of Health a quarantine plan that includes,  
among other things, the civic address of the place where they plan  
to quarantine themselves during the 14-day period that begins on  
the day on which they enter Canada and their contact information  
for that period, and  
(iii) provide the quarantine plan by electronic means specified by the  
Minister of Health, unless they are in a class of persons who, as  
determined by the Minister of Health, are unable to submit their  
quarantine plans by electronic means for a reason such as a  
disability, inadequate infrastructure, a service disruption or a  
natural disaster, in which case the quarantine plan may be  
provided in a form and manner and at a time specified by the  
Minister of Health; and  
(b) they must retain the evidence referred to in subparagraph (a)(i) for  
the 14-day period that begins on the day on which they enter Canada.  
(b) The entry requirement for air travellers entering Canada from  
abroad of providing a negative COVID-19 molecular (PCR)  
test to the aircraft operator within 72 hours before the  
aircraft’s initial scheduled departure time for Canada was  
still in effect on April 5, 2021  
[88] This entry requirement for air travellers entering Canada from abroad to provide a  
“negative COVID-19 molecular (PCR) test within 72 hours before the aircraft’s initial  
scheduled departure time for Canadato the aircraft operator before boarding the  
aircraft was still in effect on April 5, 2021, when the defendant arrived at Toronto  
Pearson International Airport, by virtue of the Minimizing the Risk of Exposure to  
40  
COVID-19 in Canada Order (Quarantine, Isolation and Other Obligations), P.C.  
#2021-0174, (March 19, 2021) Canada Gazette Part I, Volume 155, Number 14,  
April 3, 2021) (Quarantine Act).  
[89] The entry requirement for air travellers entering Canada from abroad to provide a  
“negative COVID-19 molecular (PCR) test within 72 hours before the aircraft’s initial  
scheduled departure time for Canadato the aircraft operator that was in effect on  
April 5, 2021, is contained in s. 2.2(1) of Order-In-Council P.C. #2021-0174  
[emphasis is mine below]:  
Test Requirements  
Entering by aircraft pre-boarding  
2.2(1) Subject to subsection (2), every person who enters Canada by aircraft must,  
before boarding the aircraft for the flight to Canada, provide to the aircraft  
operator evidence of a COVID-19 molecular test indicating that they received  
either a negative result for a COVID-19 molecular test that was performed on  
a specimen collected no more than 72 hours or another period set out under  
the Aeronautics Act before the aircraft’s initial scheduled departure time, or a  
positive result for the test that was performed on a specimen collected at least  
14 days and no more than 90 days before the aircraft’s initial scheduled  
departure time.  
(5) THE ENTRY REQUIREMENT FOR AIR TRAVELLERS ENTERING  
CANADA FROM ABOARD OF HAVING TO BOOK A 3-DAY PREPAID  
STAY AT A GOVERNMENT-APPROVED HOTEL  
(a) When was the entry requirement for air travellers entering  
Canada from abroad of having to book a 3-day prepaid stay  
at a government-approved hotel first implemented?  
[90] The entry requirement for travellers entering Canada by air of having to book a 3-  
day prepaid stay at a government approved hotel” and providing proof of that  
booking by electronic means to the Minister of Health before boarding a flight to  
Canada was effective and first implemented at 11:59:59 p.m. on February 21, 2021,  
by virtue of s. 15 of the Minimizing the Risk of Exposure to COVID-19 in Canada  
Order (Mandatory Isolation), No. 7, Order-In-Council P.C. #2021-0075, (February  
14, 2021) Canada Gazette Part I, Volume 155, Number 8, February 20, 2021),  
pursuant to s. 58 of the Quarantine Act.  
[91] This requirement for an air traveller to “book a 3-day prepaid stay at a government  
approved hoteland to provide proof of that booking by electronic means to the  
Minister of Health before boarding a flight to Canada is set out in ss. 1.2(1)(a)(ii)(B),  
41  
1.2(1)(a)(iii), 1.2(1.1), 1.3(ii)(A), 3(1.01)(a), and 3(1.3) of Order-In-Council P.C.  
#2021-0075 which provides:  
Entering by aircraft pre-arrival COVID-19 molecular test, suitable  
quarantine plan and prepaid accommodation  
1.2(1) Every person who enters Canada by aircraft must meet the following  
requirements:  
(a) before boarding the aircraft for the flight to Canada, they must  
(i) subject to subsection (2), if the person is five years of age or older,  
provide to the aircraft operator evidence containing the following  
elements that they received either a negative result for a COVID-19  
molecular test that was performed on a specimen collected no more  
than 72 hours, or not after the end of a period set out under the  
Aeronautics Act, before the aircraft’s initial scheduled departure  
time or a positive result for the test that was performed on a  
specimen collected at least 14 days and no more than 90 days  
before the aircraft’s initial scheduled departure time:  
(A) the person’s name and date of birth,  
(B) the name and civic address of the laboratory that administered  
the test,  
(C) the date the specimen was collected and the test method used,  
and  
(D) the test result,  
(ii) subject to subsection (3), provide to the Minister of Health,  
screening officer or quarantine officer  
(A) a suitable quarantine plan, and  
(B) evidence of prepaid accommodation that enables the person to  
remain  
in  
quarantine  
at  
a
government-authorized  
accommodation for a three-day period that begins on the day  
on which they enter Canada, and  
(iii) provide the suitable quarantine plan referred to in clause (ii)(A) and  
the evidence of prepaid accommodation referred to in clause (ii)(B)  
by electronic means specified by the Minister of Health, unless they  
are a member of a class of persons who, as determined by the  
Minister, are unable to submit their quarantine plan by electronic  
means for a reason such as a disability, inadequate infrastructure,  
a service disruption or a natural disaster, in which case the  
quarantine plan may be provided in the form and manner and at the  
time specified by the Minister of Health; and  
42  
(b) retain the evidence referred to in subparagraph (a)(i) for the 14-day  
period that begins on the day on which they enter Canada or that begins  
again under subsection 3(2) or 4(4), if applicable.  
Evidence of prepaid accommodation  
(1.1) For the purposes of clause (1)(a)(ii)(B), evidence of prepaid accommodation  
includes evidence that accommodation for that person has been paid for,  
before or when that person enters Canada,  
(a) by that person or by another person on behalf of that person; and  
(b) by the Government of Canada or the government of a province.  
Suitable quarantine plan  
1.3 The suitable quarantine plan referred to in clause 1.2(1)(a)(ii)(A) must  
(a) include  
(i) in the case of a person entering Canada by land, the civic address of  
the place where they plan to quarantine themselves during the 14-day  
period that begins on the day on which they enter Canada,  
(ii) in the case of a person entering Canada by aircraft,  
(A) the name and address of the government-authorized  
accommodation where they plan to quarantine themselves during  
the period that begins on the day on which they enter Canada and  
remain in quarantine and ends on the day on which they receive the  
result for the molecular test referred to in subparagraph 1.4(1)(a)(i),  
and  
(B) the civic address of the place where they plan to quarantine  
themselves during the period that begins on the day on which they  
receive evidence of a negative result for the molecular test referred  
to in subparagraph 1.4(1)(a)(i) and remain in quarantine for the  
remainder of the 14-day period that begins on the day on which they  
enter Canada, and  
(iii) their contact information for the 14-day period that begins on the day on  
which they enter Canada;  
(b) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows them to avoid all contact with other  
people with whom they did not travel unless they are a minor and a parent  
or guardian or tutor who is providing care and support to the minor;  
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(c) indicate that no person will be present at the place referred to in  
subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, unless that  
person resides there habitually;  
(d) indicate that the person has access to a bedroom at the place referred  
to in subparagraph (a)(i) or clause (a)(ii)(B), as the case may be, that are  
separate from the one used by persons who did not travel with them and  
enter Canada together;  
(e) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows the person to access the necessities  
of life without leaving that place;  
(f) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows the person to avoid all contact with  
vulnerable persons and persons who provide care to those persons,  
unless the vulnerable person is a consenting adult or is the parent or  
dependent child in a parent-child relationship; and  
(g) indicate that the place referred to in subparagraph (a)(i) or clause  
(a)(ii)(B), as the case may be, allows the person to avoid all contact with  
a health care provider and the person works or assists in a facility, home  
or workplace where vulnerable persons are present.  
Requirements entering by aircraft  
3(1.01) Any person who enters Canada by aircraft and who does not have signs  
and symptoms of COVID-19 must  
(a) quarantine themselves without delay at a government-authorized  
accommodation in accordance with the instructions provided by a  
screening officer or quarantine officer and remain in quarantine until  
they receive the result for the COVID-19 molecular test referred to in  
subparagraph 1.4(1)(a)(i);  
(b) if the person receives evidence of a negative COVID-19 test result for  
the test referred to in subparagraph 1.4(1)(a)(i), quarantine themselves  
without delay in accordance with the instructions provided by a  
screening officer or quarantine officer and remain in quarantine for the  
remainder of the 14-day period that begins on the day on which the  
person enters Canada in a place  
(i) that is considered suitable by the Chief Public Health Officer, having  
regard to the risk to public health posed by COVID-19, the likelihood  
or degree of exposure of the person to COVID-19 prior to entry into  
Canada and any other factor that the Chief Public Health Officer  
considers relevant,  
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(ii) where they will not be in contact with a vulnerable person,  
unless the vulnerable person is a consenting adult or is the parent  
or dependent child in a parent-child relationship, and  
(iii) where they will have access to the necessities of life without  
leaving that place;  
(c) if the person does not receive the result for the COVID-19 molecular  
test referred to in subparagraph 1.4(1)(a)(ii) before the expiry of the  
14-day period that begins on the day on which the person enters  
Canada, remain in quarantine in accordance with the instructions  
provided by a screening officer or quarantine officer until they  
receive the test result or for another 14-day period, whichever  
comes first;  
(d) report their arrival at, and the civic address of, the government-  
authorized accommodation and their place of quarantine within 48  
hours after arriving at that accommodation or place, as the case  
may be, by electronic means specified by the Minister of Health or  
by telephone using a number specified by the Minister of Health;  
and  
(e) subject to subsection (2), while they remain in quarantine in  
accordance with paragraphs (a) and (b)  
(i) monitor for signs and symptoms of COVID-19,  
(ii) report daily on their health status relating to signs and  
symptoms of COVID-19 by electronic means specified by the  
Minister of Health or by telephone using a number specified by  
the Minister of Health, and  
(iii) in the event that they develop signs and symptoms of COVID-  
19 or receive evidence of a positive result under any type of  
COVID-19 test, follow the instructions provided by the public  
health authority specified by a screening officer or quarantine  
officer.  
Accommodation expense  
(1.3) For greater certainty, a person referred to in paragraph (1.01)(a) must  
comply with the conditions established under that paragraph at their own  
expense unless the government-authorized accommodation is provided  
or paid for by Her Majesty in right of Canada or an agent of Her Majesty.  
Period begins again  
(2) The 14-day period of quarantine begins again and the associated  
requirements continue to apply if, during the 14-day period, the person  
45  
develops signs and symptoms of COVID-19, receives evidence of a  
positive result under any type of COVID-19 test or is exposed to another  
person who exhibits signs and symptoms of COVID-19.  
Cessation daily reporting  
(3) The reporting requirements set out in subparagraphs (1)(c)(ii) and  
(1.01)(e)(ii) end if the person reports that they have developed signs and  
symptoms of COVID-19 or tested positive for COVID-19 under any type  
of COVID-19 test.  
19(1) Subsections 3(1) and (1.01) of this Order are replaced by the following:  
(3) Subsection 3(1.3) of this Order is replaced by the following:  
Accommodation expense  
(1.3) For greater certainty, a person referred to in paragraph (1)(a) must comply  
with the conditions established under that paragraph at their own expense  
unless the government-authorized accommodation is provided or paid for  
by Her Majesty in right of Canada or an agent of Her Majesty.  
February 21, 2021  
(2) Subparagraph 1.3(a)(i) and sections 15 to 30 come into force at 11:59:59  
p.m. Eastern Standard Time on February 21, 2021.  
(b) the entry requirement for air travellers entering Canada from  
abroad of having to book a 3-day prepaid stay at a  
government-approved hotel was still in effect on April 5,  
2021  
[92] The entry requirement of having to book a 3-day prepaid stay at a government-  
approved hotel was still in effect on April 5, 2021, when the defendant entered  
Canada by air from being abroad in Mexico and Columbia. Air travellers from  
outside Canada arriving at Toronto Pearson International Airport on April 5, 2021,  
were required under s. 3.4 of Order-In-Council PC #2021-0174 (March 19, 2021) to  
have booked a 3-day prepaid stay at a government-approved hotel. The purpose  
of this measure was to prevent an air traveller, even one who was asymptomatic,  
from being in the community until their Day 1 molecular (PCR) test came back  
negative. And, because molecular (PCR) tests require a laboratory to process this  
type of test it may take up to 3 days to process, then the air traveller, even one who  
was asymptomatic, would have to isolate at the government-approved hotel for up  
to 3 days until the test came back negative. More importantly, under ss.  
3.1(a)(ii)(A), 3.2(2)(b), and 3.2(3) the air traveller entering Canada from abroad  
46  
must also include in their 14-day quarantine plan, which they have to provide to the  
Minister of Health by electronic means before they board their flight to Canada, the  
name and civic address of the government-authorized accommodationwhere  
they plan to quarantine themselves during the period that begins on the day on  
which they enter Canada and to remain in quarantine until the day on which they  
receive the result for the COVID-19 molecular test (the 3-day stay). And, under ss.  
3.4(a) and 3.4(b), every person who enters Canada by aircraft must before boarding  
the aircraft for the flight to Canada provide to the Minister of Health, screening  
officer or quarantine officer by electronic means specified by the Minister of Health,  
evidence of prepaid accommodation that enables the person to remain in  
quarantine at a government-authorized accommodation for a period of three days  
from the day on which they enter Canada.