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;  
43  
(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,  
44  
(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. In addition, under s. 4.1(a) every person  
who enters Canada by aircraft and who does not have signs and symptoms of  
COVID-19 must 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 [emphasis is mine below]:  
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;  
47  
(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  
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.  
48  
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.  
Prepaid accommodation requirements  
3.4  
Subject to section 3.5, every person who enters Canada by aircraft must meet  
the following requirements before boarding the aircraft for the flight to Canada:  
(a) provide to the Minister of Health, screening officer or quarantine officer  
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; and  
(b) provide the evidence of prepaid accommodation referred to in paragraph  
(a) 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 the evidence by electronic means for a reason such as a  
disability, inadequate infrastructure, a service disruption or a natural  
disaster, in which case the evidence may be provided in the form and  
manner and at the time specified by the Minister of Health.  
Quarantine of Asymptomatic Persons  
Requirements  
4.1  
Every person who enters Canada and who does not have signs and symptoms  
of COVID-19 must  
(a) in the case of a person entering Canada by aircraft, 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 paragraph 2.3(1)(a);  
(a.1) in the case of a person entering Canada by a mode of transport other than  
aircraft, quarantine themselves without delay in accordance with the  
instructions provided by a screening officer or quarantine officer and  
remain in quarantine until the expiry of the 14-day period that begins on  
the day on which the person enters Canada in a place  
49  
(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,  
(ii) where they will not be in contact with a vulnerable person, unless the  
vulnerable person is a consenting adult or 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;  
(b) if the person receives evidence of a negative result for the COVID-19  
molecular test referred to in paragraph 2.3(1)(a), 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,  
(ii) where they will not be in contact with a vulnerable person, unless the  
vulnerable person is a consenting adult or 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 paragraph 2.3(1)(b) 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 or 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, unless they are a member of a class  
of persons who, as determined by the Minister, are unable to report that  
information by electronic means for a reason such as a disability,  
inadequate infrastructure, a service disruption or a natural disaster, in  
which case the reporting may be done in the form and manner and at the  
time specified by the Minister of Health; and  
50  
(e) subject to section 4.9, while they remain in quarantine in accordance with  
paragraphs (a) to (c),  
(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,  
unless they are a member of a class of persons who, as determined  
by the Minister, are unable to report that information by electronic  
means for a reason such as a disability, inadequate infrastructure, a  
service disruption or a natural disaster, in which case the reporting  
may be done in the form and manner and at the time 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.  
Unable to quarantine  
4.2(1) A person referred to in section 4.1 is considered unable to quarantine  
themselves if  
(a) the person has not provided the evidence referred to in subsection 2.1(1)  
or 2.2(1), unless the person is exempted from that requirement under  
subsection 2.1(2) or 2.2(2);  
(b) the person refuses to undergo a COVID-19 molecular test in accordance  
with paragraph 2.3(1)(a);  
(c) the person has not provided a quarantine plan in accordance with this  
Order;  
(d) the person cannot quarantine themselves in accordance with paragraphs  
4.1(a) to (b); or  
(e) while they remain in quarantine at the government-authorized  
accommodation referred to in paragraph 4.1(a), the person 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.  
Transportation to a government-authorized accommodation  
(2) A person referred to in paragraph 4.1(a) must not use a public means of  
transportation, including an aircraft, bus, train, subway, taxi or ride-sharing  
51  
service, to travel from the place where they enter Canada to the government-  
authorized accommodation, unless the person is authorized to use a public  
means of transportation by a screening officer or quarantine officer.  
Expense  
(4) For greater certainty, a person referred to in paragraph 4.1(a) must comply with  
the conditions established under that paragraph at their own expense or at the  
expense of another person on behalf of that person unless the government-  
authorized accommodation is provided or paid for by Her Majesty in right of  
Canada or an agent of Her Majesty in right of Canada or Her Majesty in right of  
a province.  
Period begins again  
4.9(1) The 14-day period of quarantine begins again and the associated requirements  
continue to apply if, during that 14-day period, the person 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.  
Day of test  
(2) In the case of a person referred to in subsection (1) who receives evidence of a  
positive result under any type of COVID-19 test, the 14-day period begins again  
on the day that the test was performed.  
Cessation daily reporting  
(3) The requirements set out in subparagraphs 4.1(e)(ii) and 4.2(2)(d)(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.  
Cessation of Effect, Repeal and Coming into Force  
Cessation of Effect  
April 21, 2021  
7.1  
This Order ceases to have effect at 11:59:59 p.m. Eastern Daylight Time on  
April 21, 2021.  
Coming into Force  
March 21, 2021  
52  
7.3  
This Order comes into force at 11:59:59 p.m. Eastern Daylight Time on March  
21, 2021.  
[93] The mandatory requirement for air travellers entering Canada from abroad to book  
a 3-day prepaid stay at a government-approved hotel was finally ended by the  
Federal Government on July 5, 2021, for fully vaccinated travellers who met all  
other entry requirements, and August 9, 2021, for all other travellers12.  
(6) THE ENTRY REQUIREMENT FOR AIR TRAVELLERS ENTERING  
CANADA FROM ABOARD OF HAVING TO UNDERGO A DAY 1  
COVID-19 MOLECULAR (PCR) TEST UPON ARRIVAL AT A  
CANADIAN AIRPORT  
(a) When was the entry requirement for air travellers entering  
Canada from aboard of having to undergo a Day 1 COVID-19  
molecular (PCR) test upon arrival at the airport first  
implemented?  
[94] The entry requirement for travellers entering Canada by air from abroad of  
undergoing a Day 1 COVID-19 molecular (PCR) test upon arrival at a Canadian  
airport was effective and first implemented at 11:59:59 p.m. on January 20, 2021,  
by virtue of the Minimizing the Risk of Exposure to COVID-19 in Canada Order  
(Quarantine, Isolation and Other Obligations), P.C. #2021-011, (January 20, 2021)  
Canada Gazette Part I, Volume 155, Number 5, January 30, 2021 (Quarantine Act),  
pursuant to s. 58 of the Quarantine Act. This requirement for an air traveller to  
undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival from  
abroad” is set out in s. 1.2(4)(a) of Order-In-Council P.C. #2021-0011 which  
provides [emphasis is mine below]:  
Test in Canada persons subject to the Aeronautics  
Act  
1.2(4) Every person referred to in paragraph (2)(i), unless they are also referred  
to in one of paragraphs (2)(a) to (h) or they provide evidence of a positive  
COVID-19 molecular test result that was performed on a specimen that  
was collected at least 14 days and no more than 90 days before the  
12  
See Government of Canada document entitled, “Government-authorized accommodations” on the “COVID-19: Summary  
data about travellers, testing and compliance” page, online: ** website << https://www.canada.ca/en/public-  
health/services/diseases/coronavirus-disease-covid-19/testing-screening-contact-tracing/summary-data-  
travellers.html#a24>>:  
“Beginning February 21, 2021, international air travellers, unless exempt, were required to pre-book a 3-  
night stay at a government-authorized accommodation (GAA) where they would await the results of their  
arrival test for COVID-19. The GAA requirement ended on July 5, 2021, for fully vaccinated travellers  
who met all other entry requirements, and August 9, 2021 for all other travellers.”  
53  
aircraft’s initial scheduled departure time, must meet the following  
requirements:  
(a) in accordance with the instructions of the quarantine officer, they must  
undergo a COVID-19 molecular test in Canada unless, in exigent  
circumstances, the quarantine officer releases the person from that  
requirement, in which case the person must follow instructions  
specified by the quarantine officer; and  
(b) they must retain the evidence of the COVID-19 molecular test result for  
the 14-day period that begins on the day on which they receive the  
evidence of that result or that begins again if, during the 14-day period,  
the person develops signs and symptoms of COVID-19, is exposed to  
another person who exhibits signs and symptoms of COVID-19 or tests  
positive for COVID-19 under any type of COVID-19 test.  
(b) The entry requirement for air travellers entering Canada from  
aboard of having to undergo a Day 1 COVID-19 molecular  
(PCR) test at the airport upon arrival was still in effect on  
April 5, 2021  
[95] In addition, air travellers arriving from outside of Canada at Toronto Pearson  
International Airport on April 5, 2021, were also required under s. 2.3(1)(a) of Order-  
In-Council PC #2021-0174 to undergo a COVID-19 molecular (PCR) test when  
entering Canada or after entering Canada. This is referred to as the Day 1 COVID-  
19 molecular (PCR) test [emphasis is mine below]:  
Tests in Canada  
2.3(1) Every person who enters Canada by land or aircraft must, in accordance  
with the instructions of a quarantine officer or the Minister of Health,  
undergo a COVID-19 molecular test  
(a) when entering Canada; and  
(b) after entering Canada.  
Non-application  
(2) Subsection (1) does not apply to a person referred to in Table 2 of Schedule  
2.  
Exigent circumstances  
(3) Paragraph (1)(a) or (b) does not apply to a person who, in exigent  
circumstances, is released by a quarantine officer from the requirement to  
undergo the COVID-19 molecular test referred to in paragraph (1)(a) or (b),  
54  
as the case may be, in which case the person must follow the instructions  
of the quarantine officer.  
Expense  
(4) For greater certainty, a person referred to in subsection (1) must comply  
with the conditions established under that paragraph at their own expense  
or at the expense of another person on behalf of that person unless the  
COVID-19 molecular tests are provided or paid for by Her Majesty in right  
of Canada or an agent of Her Majesty in right of Canada or Her Majesty in  
right of a province.  
Alternative testing protocol  
2.4(1) The persons referred to in subsection (2) who enter Canada by land or  
aircraft must, in accordance with the instructions of a quarantine officer,  
undergo an alternative testing protocol to screen or diagnose COVID-19 for  
the purpose of minimizing the risk of introduction or spread of COVID-19,  
having regard to the following factors:  
(a) the number of tests;  
(b) the test method of each test;  
(c) the location where each test is administered;  
(d) the frequency of the tests;  
(e) the timing of the tests; and  
(f) any exigent circumstances.  
Persons subject to subsection (1)  
(2) The persons subject to subsection (1) are  
(a) a person or any member of a class of persons designated by the Chief  
Public Health Officer;  
(b) a person who is less than 18 years of age and is not accompanied by  
a person who is 18 years of age or older; and  
(c) a person referred to in subsection 4.5(1).  
Exigent circumstances  
(3) Subsection (1) does not apply to a person who, in exigent circumstances,  
is released by a quarantine officer from the requirement to undergo the  
alternative testing protocol, in which case the person must follow the  
instructions of the quarantine officer.  
55  
Non-application positive result  
(4) This section does not apply to a person who receives evidence of a positive  
result under any type of COVID-19 test.  
Evidence of COVID-19 molecular test retention period  
2.5(1) Every person who enters Canada must  
(a) during the 14-day period that begins on the day on which they enter  
Canada or that begins again under subsection 4.9(1), retain the  
evidence referred to in subsections 2.1(1) or 2.2(1) and the evidence of  
the COVID-19 molecular test result for the tests referred to in paragraph  
2.3(1)(a);  
(b) retain the evidence of the COVID-19 molecular test result for the test  
referred to in paragraph 2.3(1)(b) or the result of the alternative testing  
protocol referred to in subsection 2.4(1) during the 14-day period that  
begins on the day on which the person receives the evidence of the test  
result; and  
(c) provide, on request, the evidence referred to in subsection 2.1(1) or  
2.2(1) and the evidence of the COVID-19 molecular test result for the  
tests referred to in paragraph 2.3(1)(a) and (b) to any official of the  
Government of Canada or of the government of a province or to the  
local public health authority of the place where the person is located.  
Designation  
(2) The Chief Public Health Officer may designate any person as a public  
health official for the purposes of paragraph (1)(c).  
(i) the COVID-19 molecular (PCR) test  
[96] The COVID-19 molecular test (PCR test) is defined in s. 1.1 of O.I.C. #2021-0174  
(Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine,  
Isolation and Other Obligations), as 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):  
Definitions  
1.1 The following definitions apply in this Order.  
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  
56  
polymerase chain reaction (PCR) or reverse transcription loop-mediated  
isothermal amplification (RT-LAMP).  
[97] In addition, in respect to the entry requirement of air travellers entering Canada  
from outside Canada having to do a Day 1 COVID-19 (PCR) test at the airport,  
Pentney J. in Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.),  
at paras. 12 to 14, had reviewed the different types of COVID-19 tests and accuracy  
and reliability of such tests. Pentney J. noted that there are primarily two types of  
tests for COVID-19: (i) molecular tests; and (ii) antigen tests. Pentney J. said that  
the majority of molecular tests use the Polymerase Chain Reaction (PCR) method  
and that the evidence indicates that PCR testing is more accurate and can identify  
the presence of genetic material before a person exhibits symptoms or when a  
person is asymptomatic, while antigen tests often do not require a laboratory, and  
a result can be determined in under 30 minutes. Pentney J. also said that Antigen  
tests are useful to detect infected people with a high viral load, which is at the peak  
or near-peak of their infection, but that Antigen tests are less reliable in identifying  
people who are newly infected when they can still pass on the virus to other people.  
Furthermore, Pentney J. noted that the evidence suggests that Antigen tests are  
far more prone to false-negative results if a person has low amounts of the virus in  
their body. In addition, Pentney J. indicated that molecular tests (PCR) are superior  
throughout the detection period, since they can amplify small amounts of viral  
genomic material as compared to the Antigen tests, which do not have a similar  
amplification mechanism, and therefore depend on a higher starting viral load, and  
that is the reason that the public health measures adopted rely on molecular testing  
[emphasis is mine below]:  
There are primarily two types of tests for COVID-19: (i) molecular tests; and (ii)  
antigen tests. The majority of molecular tests use the Polymerase Chain Reaction  
(PCR) method. The evidence indicates that PCR testing is more accurate and can  
the identify presence of genetic material before a person exhibits symptoms or  
when a person is asymptomatic. PCR tests allow for screening of the same sample  
for genetic markers to detect the presence of variants of concern, which will be  
discussed in further detail below. Other molecular testing technology exists and  
includes Reverse Transcription Loop-mediate isothermal AMPlification, which  
functions in a manner similar to PCR, but has slightly lower sensitivity and  
specificity.  
Antigen tests often do not require a laboratory, and a result can be determined in  
under 30 minutes. Antigen tests are useful to detect infected people with a high  
viral load, which is at the peak or near-peak of their infection. However, antigen  
tests are less reliable in identifying people who are newly infected when they can  
still pass on the virus to other people. Further, the evidence suggests that Antigen  
tests are far more prone to false-negative results if a person has low amounts of  
the virus in their body.  
Molecular tests, PCR in particular, are superior throughout the detection period  
since they can amplify small amounts of viral genomic material, as compared to  
57  
the antigen tests, which do not have a similar amplification mechanism and  
therefore depend on a higher starting viral load. For this reason, the public health  
measures adopted rely on molecular testing.  
(ii) the ArriveCAN App  
[98] The ArriveCAN app was chosen by the Minister of Health to be the electronic means  
for air travellers flying to Canada to provide to the Minister of Health the required  
pre-boarding information, such as the negative result from a COVID-19 molecular  
(PCR) test taken within 72 hours of departing for Canada and the details of the 3-  
day prepaid stay at a government-approved hotel that had been booked by the air  
traveller. The ArriveCAN app was in effect for air travellers starting on November  
21, 2020, and had been still in effect up to April 5, 2021, when the defendant entered  
Canada from being abroad13.  
(J) ENFORCEMENT OF THE ENTRY REQUIREMENTS BY CERTIFICATES  
OF OFFENCE ISSUED UNDER THE QUARANTINE ACT WERE  
AUTHORIZED UNDER THE CONTRAVENTIONS ACT, S.C. 1992, C. 47  
[99] The Quarantine Act, S.C. 2005, c. 20, authorizes the Governor-in-Council to make  
emergency orders prohibiting any class of persons who have been in a foreign  
country from entering Canada or subjecting their entry into Canada to any  
conditions. In response to COVID-19, the Government of Canada issued numerous  
emergency orders commencing in February of 2020. As an additional measure, a  
ticketing scheme for people contravening the Quarantine Act was put in place in  
April of 2020 under the Contraventions Act, S.C. 1992, c. 47.  
(1) Set Fines For Contraventions Of The Entry Requirements Issued  
By Emergency Orders Under The Quarantine Act That Were In  
Effect On April 11, 2020  
[100] Ten contraventions under the Quarantine Act were registered on April 11, 2020, by  
SOR/2020-86 (Regulations Amending the Contraventions Regulations (Quarantine  
Act)). The set fines for these 10 federal contraventions are set out in Schedule XVI  
of SOR/2020-86. The set fine for contravening s. 15(3) for “failure to comply with a  
reasonable measure ordered by a screening officer or quarantine officer” had been  
initially set at $500 on April 11, 2020, while the set fine for contravening s. 58 for  
“failure to comply with an order prohibiting or subjecting to any condition the entry  
into Canada” had been initially set at $1000 on April 11, 2020. The amendments  
under SOR/2020-86 had designated ten offences under the Quarantine Act as  
contraventions. This had allowed enforcement officers to issue contraventions  
tickets to those found in violation of certain provisions of the Quarantine Act and  
emergency orders made under section 58 of that Act. The fine amounts for these  
10 new contraventions had ranged between $275 and $1,000. The fine amount for  
13 See footnote 11.  
58  
contraventions committed by young persons had been set at $100. In order to set  
distinct fine amounts for young persons, a provision was added to the  
Contraventions Regulations establishing the fine amount for young persons in  
respect of any contravention to be the lesser of $100 or the fine set out in Column  
III of the schedules for a particular contravention. In order to designate these  
offences as contraventions, a new schedule was added to the Contraventions  
Regulations entitled, “Schedule XVI.” The offences designated as contraventions  
had pertained to obligations imposed on travellers and other persons to prevent the  
introduction and spread of communicable diseases, including the obligation on a  
traveller:  
(1) to present oneself to a screening officer at the nearest entry point  
(section 12);  
(2) to answer relevant questions asked by a screening officer or quarantine  
officer or to provide any required information or record (subsection  
15(1));  
(3) to disclose to a screening officer or quarantine officer that they may have  
a communicable disease or have recently been in close proximity to a  
person that has a communicable disease (subsection 15(2));  
(4) to comply with reasonable measures ordered by a screening officer or  
quarantine officer (subsection 15(3));  
(5) to comply with an order from a quarantine officer to report to a public  
health authority (subsection 25(1));  
(6) to comply with an order regarding a treatment or a measure for  
preventing the introduction and spread of a communicable disease  
(section 26);  
(7) to comply with an order prohibiting or subjecting to any condition the  
entry into Canada (section 58);  
(8) not to enter a quarantine facility without authorization (subsection 65(1));  
(9) not to leave a quarantine facility without authorization (subsection  
65(2));  
(10) (a) not to hinder or wilfully obstruct a quarantine officer, screening officer  
or environmental health officer or (b) not to make a false or misleading  
statement to a quarantine officer, screening officer or environmental  
health officer (section 66) [emphasis is mine below]:  
59  
Amendments  
1 The Contraventions Regulations are amended by adding the following  
after section 3:  
Young Persons  
4 In the case of a contravention committed by a young person, the  
amount of a fine established in column III of an item to the Schedules  
is deemed to be the lesser of $100 and the amount set out in column  
III of that item.  
2 The Regulations are amended by adding after Schedule XV the Schedule  
XVI set out in the schedule to these Regulations.  
3 The Regulations are amended by replacing the references after the  
schedule heading in Schedules I to XV with “(Sections 1 to 4)”.  
Coming into Force  
4 These Regulations come into force on the day on which they are  
registered.  
SCHEDULE  
(Section 2)  
SCHEDULE XVI  
(Sections 1 to 4)  
Quarantine Act  
Column I  
Column II  
Column III  
Item  
Provision of  
Quarantine Act  
Short-Form Description  
Fine ($)  
275  
Failure to present oneself to a screening officer at the  
nearest entry point  
12  
1
2
Failure to answer a relevant question asked by a  
screening officer or quarantine officer or to provide the  
officer with any required information or record  
15(1)  
275  
60  
Failure to disclose specified information concerning a  
listed communicable disease or vectors  
15(2)  
15(3)  
25(1)  
275  
500  
275  
3
4
5
Failure to comply with a reasonable measure ordered by  
a screening officer or quarantine officer  
Failure to comply with an order to report to a public  
health authority  
Failure to comply with an order regarding a treatment or  
a measure for preventing the introduction and spread of  
a communicable disease  
26  
58  
750  
6
Failure to comply with an order prohibiting or subjecting  
to any condition the entry into Canada  
1000  
7
65(1)  
65(2)  
Enter a quarantine facility without authorization  
Leave a quarantine facility without authorization  
275  
750  
8
9
(a) Hinder or wilfully obstruct a quarantine officer,  
screening officer or environmental health officer  
500  
275  
66  
10  
(b) Make a false or misleading statement to a quarantine  
officer, screening officer or environmental health officer  
(2) Fines were increased by three-fold on February 15, 2021, because  
residents of Canada were continuing to engage in non-essential  
travel outside of Canada and were not complying with the measures  
implemented to stop the spread of COVID-19 upon their return to  
Canada  
[101] On February 15, 2021, the fines for contravening provisions of the Quarantine Act,  
S.C. 2005, c. 20, were increased three-fold by SOR/2021-13 (Regulations  
Amending the Contraventions Regulations (Schedule XVI)), Canada Gazette, Part  
II, Volume 155, Extra Number 3, as the Public Health Agency of Canada had  
observed that residents of Canada were continuing to engage in non-essential  
travel outside of Canada and were not complying with the measures to stop the  
spread of COVID-19 upon their return to Canada. The fine for contravening s. 15(3)  
for “failure to comply with a reasonable measure ordered by a screening officer or  
quarantine officer” (item #4 of Schedule XVI) had been increased to $1500 on  
February 15, 2021, while the fine for contravening s. 58 for “failure to comply with  
an order prohibiting or subjecting to any condition the entry into Canada” (Item #7  
of Schedule XVI) had been increased to $3000 on February 15, 2021 [emphasis is  
mine below]:  
Regulations Amending the Contraventions Regulations (Schedule XVI)  
Amendments  
1 The portion of items 1 to 6 of Schedule XVI to the Contraventions Regulations  
in column III is replaced by the following:  
Column III  
Fine ($)  
Item  
61  
1
2
3
4
5
6
825  
825  
825  
1500  
825  
3000  
2 Schedule XVI to the Regulations is amended by adding the following after  
item 6:  
Column I  
Item Provision of  
Column II  
Short-Form Description  
Column III  
Fine ($)  
Quarantine Act  
(a) Failure to inform a quarantine officer before arrival  
that any person, cargo or thing on board a  
conveyance could cause the spreading of a  
communicable disease  
5000  
6.1 34(2)  
(b) Failure to inform a quarantine officer before arrival  
that a person on board a conveyance has died  
5000  
5000  
(c) Failure to inform a quarantine officer before arrival  
that any prescribed circumstances exist  
3 The portion of items 7 to 10 of Schedule XVI to the Regulations in column III is  
replaced by the following:  
Column III  
Fine ($)  
Item  
7
8
9
3000  
825  
3000  
10 (a)  
10 (b)  
1500  
825  
Coming into Force  
4 These Regulations come into force on the day on which they are registered.  
[102] The reason for increasing the fines 3-fold for contraventions of the Quarantine Act  
were explained in the accompanying commentary in SOR/2021-13.  
The  
commentary had indicated that there had been growing concern by the Federal  
Government of emerging new and more contagious variants of COVID-19 and that  
Canadians were continuing to engage in non-essential travel, and because of  
travellers who were contravening the Quarantine Act upon their return to Canada  
would pose a serious and heightened threat to public health. In addition, the Public  
Health Agency of Canada had determined that the fine amounts set in April of 2020  
were not being perceived by Canadians as being sufficiently high to deter them  
from engaging in non-essential travel or to urge them to comply with the obligations  
62  
under the Quarantine Act. Accordingly, it was indicated that the objective or  
purpose of the amendments to the Contraventions Regulations involving the fine  
amounts for the Quarantine Act offences had been to pursue additional efforts to  
prevent the spread of COVID-19 among Canadians by including meaningful and  
more persuasive fines in order to obtain a higher level of compliance with the  
Quarantine Act and the emergency orders made under that Act, and to ensure  
better deterrence of non-compliance, and to send a clearer and stronger message  
on the severity associated to non-compliance, as the government had been coping  
with a persistent and challenging second wave of COVID-19 [emphasis is mine  
below]:  
In response to the COVID-19 coronavirus pandemic, the Government of Canada  
has made numerous emergency orders under the Quarantine Act designed to slow  
and prevent the spread of COVID-19, by restricting entry into Canada or subjecting  
persons entering Canada to certain conditions, notably requiring any person  
returning from travelling abroad to self-isolate for 14 days. It is vitally important that  
those measures be strictly followed. In April 2020, certain Quarantine Act offences  
were designated as contraventions in order to provide enforcement authorities with  
an additional enforcement tool to improve compliance with the Quarantine Act and  
the emergency orders made under that Act. The offences designated as  
contraventions pertain to obligations imposed on individual travellers with respect  
to international travel requirements and mandatory isolation upon arriving in  
Canada. The ticketing scheme established by the Contraventions Act, known as  
the Contraventions Regime, provides another option for enforcing certain federal  
offences of a regulatory nature as the offender can choose to plead guilty and pay  
a fine without having to appear in court.  
The April 2020 amendments to the Contraventions Regulations were among the  
very first governmental efforts to prevent risks to the health of Canadians in the  
context of the first months of the COVID-19 pandemic. The fine amounts for these  
contraventions, ranging between $275 and $1,000, had been cautiously  
determined in light of existing contraventions fine amounts, and were perceived by  
the Public Health Agency of Canada (PHAC) at the time as sufficiently high to  
impact the behaviour of Canadians who were going to travel. It was also  
anticipated that the fine levels set for Quarantine Act contraventions could, to some  
extent, influence the provincial, territorial (P/T), and municipal fines that were going  
to be subsequently put in place.  
However, there is growing concern that Canadians continue to engage in non-  
essential travel. In the context of emerging new and more contagious variants of  
COVID-19, travellers who contravene the Quarantine Act upon return to Canada  
pose a serious and heightened threat to public health. Having observed the  
situation, PHAC has determined that the fine amounts set in April 2020 are not  
perceived by Canadians as being sufficiently high to deter them from engaging in  
non-essential travel and to urge them to comply with Quarantine Act's obligations.  
In addition, PHAC has observed the existence of higher fine amounts in provinces  
for contravening public health orders under provincial public health legislation.  
Thus, as cases continue to rise, a number of provinces have increased their  
maximum fine amounts from those originally set earlier in the pandemic.  
63  
Increased fine amounts are required for existing contraventions listed under  
Schedule XVI to the Contraventions Regulations in order to re-emphasize to  
Canadians the seriousness and severity of contravening these offences while  
striking an appropriate deterrence approach. The increased fine amounts also  
enable PHAC to reinforce its leadership role, in the context of an unprecedented  
pandemic which continues to persist, to reiterate the importance of the measures  
in place, the need being pressing to set a firmer tone and to send a concise,  
unequivocal and stronger message to Canadians.  
Enacted in 1992, the Contraventions Act provides a procedure for the prosecution  
of federal regulatory offences designated as contraventions. This procedure  
reflects the distinction between criminal offences and regulatory offences and  
offers an alternative to the summary conviction procedure set out in the Criminal  
Code. It allows enforcement authorities to commence the prosecution of a  
contravention by means of a ticket with the option of voluntary payment of the  
prescribed fine, therefore avoiding the longer and more costly procedure set out in  
the Criminal Code. This spares the offender from the legal ramifications of a  
Criminal Code conviction while ensuring that court and criminal justice resources  
can be focussed on the prosecution of more serious offences. This ticketing  
procedure is a more reasonable and effective approach for minor offences, and  
provides for fines that are more proportionate to the seriousness of these offences.  
Made under section 8 of the Contraventions Act, the Contraventions Regulations  
identify the federal offences designated as contraventions, provide the short-form  
description of these offences and prescribe the amount of the fine for each of these  
contraventions. The Contraventions Regime provides another option for enforcing  
certain federal offences of a regulatory nature as the offender can choose to plead  
guilty and pay a fine without having to appear in court. Making use of this regime  
saves valuable time for the courts and for the enforcement agency, which can be  
dedicated to the prosecution of the most serious instances of these offences.  
In April 2020, 10 offences of the Quarantine Act were designated as contraventions  
under Schedule XVI to the Contraventions Regulations with associated fine  
amounts. These fine amounts have revealed to be insufficiently high to impact the  
behaviour of Canadians when they engage in non-essential travel. …  
These amendments to the Contraventions Regulations directly support the  
Government of Canada's response to COVID-19 and are therefore made on an  
expedited basis to support continued efforts to prevent or reduce risks to the health  
of Canadians.  
Objective  
The objective of these amendments is to pursue additional efforts to prevent the  
spread of COVID-19 among Canadians by including meaningful and more  
persuasive fines in order to improve compliance with the Quarantine Act and the  
emergency orders made under that Act. The purpose is to ensure better  
64  
deterrence of non-compliance and to send a clearer and stronger message on the  
severity associated to non-compliance.  
The amendments increase the fine amounts to three times the previous amount,  
with the exception of the fine amounts for section 26 and subsection 65(2) which  
are set at $3,000, for the contraventions already listed under Schedule XVI to the  
Contraventions Regulations pertaining to obligations imposed on travellers and  
other persons to prevent the introduction and spread of communicable disease,  
including  
the obligation of a traveller to present oneself to a screening officer at the  
nearest entry point (section 12): $825;  
to answer relevant questions asked by a screening officer or quarantine  
officer or to provide any required information or record (subsection 15(1)):  
$825;  
to disclose to a screening officer or quarantine officer that they may have a  
communicable disease or have recently been in close proximity to a person  
that has a communicable disease (subsection 15(2)): $825;  
to comply with reasonable measures ordered by a screening officer or  
quarantine officer (subsection 15(3)): $1,500;  
to comply with an order from a quarantine officer to report to a public health  
authority (subsection 25(1)): $825;  
to comply with an order regarding a treatment or any other measure for  
preventing the spread of the communicable disease (section 26): $3,000;  
and  
to comply with an emergency order prohibiting or subjecting to any  
condition the entry of the traveller into Canada (section 58): $3,000.  
The increase of existing contraventions fine amounts and the designation of an  
additional offence as a contravention provide enforcement officers with additional  
enforcement tools to better enforce the provisions of the Quarantine Act. In fact,  
previous fine amounts for the existing contraventions had not impacted  
significantly the behaviours of travellers, and enforcement officers attempting to  
enforce subsection 34(2) of the Quarantine Act were only able to issue a warning  
or proceed under the Criminal Code procedure. The Contraventions Regime  
allows enforcement officers to use a more graduated approach to enforcement that  
reflects the severity of each infraction.  
Increasing existing contraventions fine amounts enables PHAC to send a clear  
message about the severity of non-compliance which undermines governmental  
efforts to prevent and ultimately eradicate the spread of COVID-19. More  
65  
importantly, from a benefits and costs perspective, new fine amounts contribute to  
efforts to avoid overwhelming governmental quarantine facilities, front-line  
hospitals and long-term care homes. …  
The amendments to the Contraventions Regulations involving the fine amounts for  
the Quarantine Act offences and the addition of the designation of subsection 34(2)  
are meant to ensure a higher level of compliance as the government is coping with  
a persistent and challenging second wave of COVID-19.  
With respect to the increase of fine amounts, PHAC not only relied on current fine  
levels of similar provincial public health orders, but has also determined these fine  
amounts based on the range permitted by the Contraventions Regime where the  
maximum fine amount that can be contemplated for a contravention is $5,000  
(corresponding to the maximum fine under the Criminal Code's summary  
conviction procedure).  
The amendments increasing the existing fine amounts, which are solely meant to  
be imposed on individuals, namely travellers, are all set at three times the previous  
amount, with the exception of the fine amounts for section 26 and subsection 65(2),  
which are set at $3,000, corresponding to four times the previous amount. The  
new fine amounts were determined in light of the reassessment performed by  
PHAC of each offence's degree of seriousness. Both section 26 (failure to comply  
with an order regarding a treatment or a measure) and subsection 65(2) [leave a  
quarantine facility without authorization] were identified to be more serious and  
therefore higher fine amounts were merited.  
(K) RELEVANT CASELAW IN RESPECT TO THE ENTRY REQUIREMENTS  
AND MEASURES THAT WERE ISSUED UNDER EMERGENCY ORDER  
PC #2021-0174 AND EARLIER EMERGENCY ORDERS  
[103] Two important judicial decisions that had been decided by the Federal Court in 2021  
are relevant to this proceeding and to the Emergency Order entitled as Order-In-  
Council PC #2021-0174, which had been applicable to the defendant on April 5,  
2021, when the defendant had entered Canada by air from being abroad. They are  
Spencer v. Canada (Attorney General), [2021] F.C.J. No. 360 (F.C.) and Spencer  
v. Canada (Minister of Health), [2021] F.C.J. No. 622 (F.C.). The first case decided  
on April 23, 2021, was in regard to an application that sought an injunction against  
the Federal Government from continuing to utilize the entry requirements and  
measures under Order-In-Council PC #2021-0174 and earlier Emergency Orders,  
while the second case decided on June 18, 2021, was in respect to Charter  
applications brought by various parties contending the entry requirements and  
measures set out in Order-In-Council PC #2021-0174 and in earlier Emergency  
Orders had violated their Charter rights.  
66  
(1) Application for an injunction against the Federal Government  
from continuing with the mandatory entry requirements or  
measures for returning travellers entering Canada from abroad  
was decided in Spencer v. Canada (Attorney General), [2021]  
F.C.J. No. 360 (F.C.).  
[104] The first relevant case in respect to the entry requirements or measures contained  
in Order-In-Council PC #2021-0174 and earlier Emergency Orders was an  
application brought before the Federal Court, which sought an injunction against  
the continued operation of those entry requirements and measures by the Federal  
Government, that included the entry requirement for travellers entering Canada by  
air from abroad having to stay at a government-approved accommodation or hotel  
for 3 days while awaiting test results, where failure to fulfill this entry requirement  
into Canada would result in a federal contravention being issued with a set fine of  
$3,000. Other entry requirements being impugned included the stipulation that  
certain travellers would have to go to a Designated Quarantine Facility upon arrival  
if they had symptoms of COVID-19 or had failed to obtain a negative COVID-19  
molecular pre-departure test and/or refused to undergo a test upon arrival. On April  
23, 2021, Pentney J. of the Federal Court in Spencer v. Canada (Attorney General),  
[2021] F.C.J. No. 360, refused to grant the injunction, which is only 18 days after  
the defendant had been charged with committing the two Quarantine Act offences  
on April 5, 2021.  
[105] Furthermore, Pentney J., at paras. 8 to 9, in Spencer v. Canada (Attorney General),  
held that any harm to the applicants' rights and freedoms from a temporary stay at  
a government-approved hotel is not a sufficient basis to suspend a significant public  
health measure that is based on the advice of scientific experts, and which seeks  
to prevent or slow the spread of COVID-19 and its variants into Canada. In addition,  
Pentney J. considered the alternative suggested by the applicants that travellers  
entering Canada from abroad should be required to immediately quarantine at their  
residence. In rejecting that alterative proposal, Pentney J. held that the alternative  
suggestion did not take into account the evidence that 1-2% of air travellers arriving  
in Canada, who had taken a COVID-19 test shortly prior to departure were  
nevertheless testing positive upon arrival in Canada, nor did it reflect the evidence  
that individuals in quarantine continued to pose a risk of spreading the virus by their  
contact with others [emphasis is mine below]:  
Any harm to the Applicants' rights and freedoms from a temporary stay at a hotel  
is not a sufficient basis to suspend a significant public health measure that is based  
on the advice of scientific experts, and seeks to prevent or slow the spread of  
COVID-19 and its variants into Canada. The reasonable alternative proposed by  
the Applicants, namely immediately quarantining at their residence, does not take  
into account the evidence that 1-2% of air travellers arriving in Canada after having  
taken a COVID-19 test shortly prior to departure were nevertheless testing positive  
upon arrival in Canada, nor does it reflect the evidence that individuals in  
quarantine continued to pose a risk of spreading the virus by their contact with  
others.  
67  
The risk of importing one of the more transmissible and more dangerous COVID-  
19 variants is demonstrably significant. Based on the evidence before me, I  
conclude that it would not be just or equitable to suspend the operation of the  
challenged quarantine measures pending the determination of the merits of the  
Applicants' Charter claim.  
(2) The Federal Court in Spencer v. Canada (Minister of Health), [2021]  
F.C.J. No. 622 also considered that instead of the 3-day prepaid stay  
at a government-approved hotel entry requirement that had been  
implemented, whether there were any reasonable alternatives that  
the Federal Government could have chosen to implement for  
preventing the introduction or spread of the disease  
[106] Crampton C.J. of the Federal Court, at paras. 235 to 251, in Spencer v. Canada  
(Minister of Health), [2021] F.C.J. No. 622, had also considered the contention of  
whether a reasonable alternative to the entry requirement of the mandatory 3-day  
stay at a government-approved hotel would be the requirement for an air traveller  
entering Canada to isolate at their own residence for 14 days. In considering  
whether the suggested alternative was reasonable, Crampton C.J. had relied on  
data from a testing pilot conducted in Alberta in November and December of 2020  
which had demonstrated that approximately 1 to 2% of asymptomatic travellers  
entering Canada were infected with COVID-19. In other words, Crampton C.J.  
reasoned that for every flight of 100 people arriving in Canada, on average one or  
two were infected with COVID-19. Moreover, Crampton C.J. said other data that  
had been provided indicated that in January of 2021, the number of passengers  
arriving in Canada by air had reached 325,765 and that imported cases of COVID-  
19 from international flights with confirmed COVID-19 cases on them had increased  
more than three-fold from September 2020 (131 flights carrying 157 cases) to  
January 2021 (407 flights carrying 698 cases from Jan. 1 to 27). After reviewing  
the Explanatory Notes that had accompanied the February 2021 Emergency Order,  
medical information, and data from tests done in the pilot project, Crampton C.J.  
concluded that the suggested alternative would not have been a reasonable  
alternative because the air traveller would still have to take a form of transportation  
to their residence, which would cause the air traveler to be in contact with other  
people or with their own family members in their residence and could also expose  
these people to the COVID-19 virus, even though the air traveller may have been  
asymptomatic when they entered Canada. Moreover, Crampton C.J. held that the  
Emergency Orders containing the impugned entry requirements or measures had  
been neither arbitrary nor ultra vires the Quarantine Act [emphasis is mine below]:  
In this regard, the most relevant aspects of the record include the recitals to the  
February Order, Explanatory Notes that accompanied that Order, and the evidence  
adduced by the Respondent's affiants. Those materials reveal that the AIC did in  
fact reach the opinion that no reasonable alternatives to the Impugned Measures  
were available to prevent the spread of COVID-19.  
68  
The fourth recital to the February Order in which the Impugned Measures are  
contained specifically states: "And whereas the Administrator in Council is of the  
opinion that no reasonable alternatives to prevent the introduction or spread of  
[COVID-19] are available."  
Turning to the specific alternatives that the RNN Applicants state were available,  
they are the following:  
i. Continuing to rely on the measures that were in place before the  
Impugned Measures were promulgated -- the Applicants maintain that  
those prior measures "had all but eliminated the problem the GAA was  
later implemented to address";  
ii. A requirement for incoming air travellers to quarantine apart from  
health-care workers and vulnerable persons -- the Applicants assert  
that this requirement may have prevented the COVID-19 outbreak at  
the Roberta Place, discussed at paragraph 106 above;  
iii. Enhanced testing;  
iv. Prohibiting incoming air travellers from taking any form of "public  
conveyance";  
v. Stricter requirements for quarantine and isolation plans;  
vi. Permitting anyone who has private transportation from the airport to  
proceed directly to their suitable place of quarantine, rather than  
awaiting the result of their Day 1 Test before being permitted to do so;  
and  
vii. Restricting vacation travel, as was done when travel to Mexico and the  
Caribbean was restricted under another Order.  
Regarding continued reliance on the measures that were in place before the  
promulgation of the Impugned Measures, the Explanatory Notes to the February  
Order state the following:  
Based on current review of international experience with new variants,  
introducing additional measures that leverage the availability of testing  
technologies to further prevent the introduction and spread of COVID-19 or  
new variants of concern in Canada is justifiable.  
[February Order, Explanatory Notes, above, p. 726]  
In addition, Ms. Barton, who is primarily responsible for the development of OICs  
pursuant to the provisions of the Quarantine Act, stated that the information  
available at that time "demonstrated that the measures in place since January 7,  
2021 were inadequate to prevent or to limit sufficiently the importation of COVID-  
19 cases into Canada via aircraft especially in light of the emergence of the VOCs":  
69  
Barton Affidavit, above, at para 17. In that same paragraph, she identified that  
information as follows:  
i. "Prior to the [promulgation of the Impugned Measures], asymptomatic  
travellers entering Canada were able to travel onward via public  
conveyance which could have included domestic flights;  
ii. Data from a testing pilot in Alberta in November and December 2020  
demonstrated that approximately 1 to 2% of asymptomatic travellers  
entering Canada were infected with COVID-19. In other words, for  
every flight of 100 people arriving in Canada, on average one or two  
were infected with COVID-19 ...; [Ms. Barton subsequently produced  
other data showing that in January 2021, the number of passengers  
arriving into Canada by air reached 325,765. In that same month "data  
on imported cases of COVID-19 demonstrated more than a three-fold  
increase in the number of affected flights (international flights with  
confirmed COVID-19 cases on them) from September (131 flights  
carrying 157 cases) to January (407 flights carrying 698 cases from Jan  
1--27): Barton Affidavit, at paras 19 and 20.]  
iii. After the implementation of pre-departure testing on January 7, 2021,  
information from an Ontario pilot program showed that 2.2% of  
asymptomatic travellers entering Canada were infected with COVID-19  
notwithstanding their having had a negative pre-departure test ...;  
iv. Data from testing of the travellers on flights from January 10 to 18, 2021  
arriving from a country lacking the resources to administer pre-  
departure tests showed a COVID-19 positivity rate of 6.8% in  
asymptomatic travellers ...; and  
v. Evidence on the increased transmissibility of VOCs suggested that  
Canada needed to take more precautions at ports of entry to reduce as  
much as possible the risk of starting new chains of transmission with  
these variants."  
Ms. Barton further stated that she received information from a broad range of  
sources, and that this information was used "to support the Minister of Health in  
her role in making recommendations for the drafting of OICs": Barton Affidavit,  
above, at para 10.  
Considering the foregoing, I am satisfied that continued reliance on the measures  
in place prior to the promulgation of the Impugned Measures was in fact  
considered and rejected by the AIC on reasonable grounds.  
Regarding the six other alternatives identified by the RNN Applicants, three of them  
were included in the February Order. It can be inferred from the justifications that  
were provided for the Impugned Measures, including the requirement to stay in a  
GAA or a DQF, that the alternatives listed immediately below were not considered  
to be sufficient, in and of themselves or even in aggregate, to address the risks to  
which that requirement was addressed. As further discussed at paragraphs 109-  
70  
112 above, those justifications were: (i) the likelihood that persons who tested  
positive on their Day 1 Test would modify their behaviour upon their arrival at their  
suitable place of quarantine, (ii) preventing arriving air travellers from immediately  
taking a domestic air flight or other form of public transportation; (iii) preventing  
persons who are awaiting their Day 1 Test results from infecting anyone at their  
home or other suitable place of quarantine, or in the community, while they are  
staying at a GAA or a DQF, and (iv) facilitating early identification and isolation of  
asymptomatic air travellers who are infected.  
The three specific alternatives identified by the RNN Applicants and included in the  
February Order are as follows:  
i. Avoiding contact with health care workers and vulnerable persons:  
Paragraph 1.3(f) provides that a suitable quarantine plan must indicate  
that the place of quarantine will allow the traveller "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." Paragraph  
1.3(g) contains a similar provision with respect to avoiding all contact  
with a health care provider. Paragraph 3(1)(a.1)(ii) and (b) (ii) also  
requires an asymptomatic person to quarantine at a location where they  
will not be in contact with a vulnerable person (subject to the same  
proviso mentioned above). Clause 9(b)(ii) contains a similar provision  
for symptomatic persons.  
ii. Additional testing: Section 1.4 of the Order included provisions for  
enhanced testing (i.e., the Day 1 Test and a second test).  
iii. Avoiding public transportation: Paragraph 10(1)(c) provides that a  
symptomatic person is considered to be unable to isolate themselves if  
it is necessary to use a public means of transportation to travel from  
their place of entry into Canada to the place where they would isolate  
themselves. Although it may well have been desirable to include a  
similar provision for asymptomatic persons, it can be inferred from the  
justifications that were provided for the GAA requirement that such an  
addition to the February Order was not considered to be sufficient to  
address the risks to which this requirement was addressed: see  
paragraphs 109-112 above.  
Regarding the remaining three alternatives identified by the RNN Applicants, once  
again, It can be inferred from the justifications that were provided for the Impugned  
Measures (see paragraph 242 above), including the requirement to stay in a GAA  
or a DQF, that those alternatives were not considered to be sufficient to address  
the risks to which that requirement were targeted.  
In considering the Impugned Measures, Ms. Barton and her team received  
information regarding steps being taken in other countries, including Australia and  
New Zealand. However, the more strict approach pursued by Australia, New  
Zealand and certain other island countries was not considered to be feasible here,  
given the length of the land border shared with the United States.  
71  
In summary, contrary to the RNN Applicants' submission, the AIC did in fact reach  
the opinion that no reasonable alternatives to prevent the introduction or spread of  
COVID-19 were available. This is clear from the fourth recital to the February  
Order, reproduced at paragraph 236 above. In this regard, the AIC specifically  
considered that the measures in force prior to the promulgation of the Impugned  
Measures were not sufficient to address the risk posed by COVID-19. This is  
plainly apparent from the excerpt of the Explanatory Notes to the February Order,  
reproduced at paragraph 238 above.  
In addition, the AIC specifically addressed three of the remaining six alternatives  
identified by the RNN Applicants, in the February Order. It is implicit from the fact  
that the AIC also included the GAA/DQF stay requirement in that Order that the  
AIC considered that the three alternatives in question, by themselves would not be  
sufficient to address the risks posed by COVID-19.  
It can be inferred from the justifications that were provided for the Impugned  
Measures that the remaining three alternatives identified by the RNN Applicants  
were not considered to be sufficient to address the risks to which the Impugned  
Measures targeted. Those justifications also reflect that the Impugned Measures  
were consistent with the purpose underlying section 58 of the Quarantine Act.  
Finally, approaches adopted by other countries were considered.  
Given all of the foregoing, I conclude that the Orders containing the Impugned  
Measures are not ultra vires the AIC. The record as a whole reveals that the AIC  
did in fact reach the opinion that no reasonable alternatives to prevent the  
introduction or spread of COVID-19 in Canada were available. That opinion is  
entitled to some deference, particularly given that paragraph 58(1)(d) enables the  
AIC to exercise the emergency powers provided for in subsection 58(1) when it is  
of the opinion that the conditions described in paragraphs (a) -- (d) are met. So  
long as there is a reasonable basis in the record to support that opinion, it does  
not matter that others, such as the RNN Applicants, may believe or even  
demonstrate that there was in fact a reasonable alternative available. As it turns  
out, the alternatives identified by the RNN Applicants were also considered, either  
explicitly or implicitly. They were not considered to be adequate to prevent the  
introduction or spread of COVID-19 in Canada.  
The RNN Applicants also submit that the Orders containing the Impugned  
Measures are ultra vires the Quarantine Act because they are arbitrary. For the  
reasons I have already given at paragraphs 77, 103-122 and 166-179 above, I  
disagree.  
(3) Crampton C.J. also commented in Spencer v. Canada (Minister of  
Health) that the principles of fundamental justice would not prevent  
the state from performing its essential function of protecting its  
citizens from the health risk which is caused by people travelling  
outside of Canada during the COVID-19 pandemic or who had been  
72  
unwilling to make sacrifices, and had instead engaged in behaviour  
that poses a demonstrated risk to the health and safety of others  
[107] Crampton C.J. also made some concluding observations in Spencer v. Canada  
(Minister of Health), at paras. 308 to 311, and commented that the principles of  
fundamental justice would permit the imposition of stronger border control  
measures, such as a longer period of quarantine at the border, should the  
Administrator-In-Council become of the opinion that the preconditions set forth in  
paragraphs 58(1)(a) -- (d) of the Quarantine Act are met, and that it also would not  
be necessary to resort to section 1 of the Charter to impose such a measure.  
Moreover, Crampton C.J. also recognized that those who have second residences  
abroad or have other good reasons to travel may not welcome such measures,  
particularly if they are required to pay for some of them. However, Crampton C.J.  
reasoned that like times of war and other crises, pandemics call for sacrifices to  
save lives and avoid broad based suffering and if some are unwilling to make such  
sacrifices, and instead engage in behaviour that poses a demonstrated risk to the  
health and safety of others, the principles of fundamental justice will not prevent the  
state from performing its essential function of protecting its citizens from that risk  
[emphasis is mine below]:  
Given that the COVID-19 pandemic may continue to evolve and new Variants of  
Concern may continue to emerge, I consider it appropriate to make some  
concluding observations. This is particularly so because, when pressed as to why  
stronger border control measures were not imposed, one of the reasons identified  
by the Respondent was the Charter. In addition, the federal government may need  
to act swiftly to address threats that new or existing Variants of Concern may  
present.  
In brief, I consider that the principles of fundamental justice would permit the  
imposition of stronger border control measures, should the AIC become of the  
opinion that the preconditions set forth in paragraphs 58(1)(a) -- (d) of the  
Quarantine Act are met. This includes a longer period of quarantine at the border.  
In my view, it would not be necessary to resort to section 1 of the Charter to impose  
such a measure.  
In addition to saving more lives and considerable suffering, especially for those  
who would otherwise be hospitalized or experience serious symptoms over an  
extended period of time, such a measure might well serve other important  
purposes. These include reducing the perception of some, such as the Applicants  
in this case, that weaker and less uniformly applied measures are unfair and do  
not contribute meaningfully to preventing the entry and spread of COVID-19 and  
Variants of Concern.  
I recognize that those who have second residences abroad or other good reasons  
to travel may not welcome such measures, particularly if they are required to pay  
for some of them. However, like times of war and other crises, pandemics call for  
sacrifices to save lives and avoid broad based suffering. If some are unwilling to  
make such sacrifices, and engage in behaviour that poses a demonstrated risk to  
the health and safety of others, the principles of fundamental justice will not prevent  
73  
the state from performing its essential function of protecting its citizens from that  
risk: Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 1; R  
v Jones, 2006 28086 at para 31 (Ont CA). Of course, like other principles,  
the principles of fundamental justice have their limits. But I consider that there is  
currently additional leeway within those principles, before resort must be had to  
section 1 of the Charter.  
(4) Charter and constitutional challenges to the entry requirements  
and measures imposed on travellers returning to Canada from  
abroad were also raised in Spencer v. Canada (Minister of Health).  
[108] Furthermore, in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622, the  
Federal Court had to consider various applications brought by several applicants  
challenging the entry requirements for travellers returning to Canada from abroad,  
as infringement of their Charter rights:  
(1) under s. 6(1) (the right as a Canadian citizen to enter, remain in and leave  
Canada);  
(2) under s. 7 (the right not to be deprived life, liberty and security of the person  
except in accordance with the principles of fundamental justice);  
(3) under s. 8 (the right to be secure against unreasonable search or seizure);  
(4) under s. 9 (the right not to be arbitrarily detained or imprisoned);  
(5) under s. 10(b) (the right on arrest or detention to retain and instruct counsel  
without delay and to be informed of that right);  
(6) under s. 11(d) (that when charged with an offence, the right to be presumed  
innocent until proven guilty according to law in a fair and public hearing by an  
independent and impartial tribunal);  
(7) under s. 11(e) (that when charged with an offence, the right not to be denied  
reasonable bail without just cause); and  
(8) under s. 12 (the right not to be subjected to any cruel and unusual treatment or  
punishment);  
[109] The applicants in Spencer v. Canada (Minister of Health) also contended that the  
entry requirements for travellers returning to Canada from abroad had violated their  
right to enjoyment of property under s. 1(a) of the Canadian Bill of Rights, that the  
Federal Government did not have the jurisdiction under s. 58 of the Quarantine Act  
to implement the entry requirements and measures, and that the entry requirements  
and measures were ultra vires s. 91(11) of the Constitution Act, 1867.  
74  
[110] Crampton C.J. in Spencer v. Canada (Minister of Health) had considered the  
applications challenging the constitutionality of the entry requirements or measures  
imposed on travellers returning to Canada from abroad and held at paras. 299 to  
307 that the entry requirements or measures in and of themselves, did not violate  
ss. 6(1), 7, 8, 9, 10(b), 11(d), 11(e) or 12 of the Charter. However, for one specific  
applicant, Crampton C.J. did find that the applicant had proven that their right not  
to be arbitrarily detained or imprisoned under s. 9 and the right on arrest or detention  
to retain and instruct counsel without delay and to be informed of that right under s.  
10(b) of the Charter had been violated because of the entry requirements and  
measures of the Emergency Order of January 2021, and that those violations of the  
applicant's rights cannot be demonstrably justified in a free and democratic society.  
Moreover, Crampton C.J. had concluded that because the border control officials  
had refused to disclose to the applicant and her spouse the location of the facility  
to which the applicant was being taken, the applicant’s right under s. 9 of the Charter  
had been infringed. For the s. 10(b) infringement, Crampton C.J. concluded that  
because the applicant had been detained the applicant was not properly informed  
of her right to retain and instruct counsel without delay. In addition, Crampton C.J.  
reasoned that the ss. 9 and 10(b) violations had pertained to government action or  
administrative practice, so that the appropriate remedy would lie under s. 24(1) of  
the Charter, rather than s. 52 of the Constitution Act, 1867. However, Crampton  
C.J. concluded that no remedy was available for the applicant as the applicant had  
not given notice of an intention to seek a remedy under section 24(1).  
[111] But more significantly, Crampton C.J. had noted that the violations of this particular  
applicant’s rights, who had been detained under the January 2021 Emergency  
Order, was subsequently remedied by the changes that were made in the February  
2021 Emergency Order and its successors, which had replaced the January 2021  
Emergency Order. Moreover, Crampton C.J. also noted that beginning with the  
Emergency Order of February 2021, the issue with the s. 9 Charter violation was  
corrected by having travellers, who had been required to stay in a government-  
approved hotel, book their own reservation at the hotel so that the traveller would  
know its location. And for travellers who would be required to stay in a Designated  
Quarantine Facility they would be provided with the relevant details pertaining to  
that facility. As to the s. 10(b) violation, Crampton C.J. reasoned that border control  
officials would now be aware that they must clearly communicate to travellers the  
right to retain and instruct counsel in a manner that is readily understood, at the  
outset of the detention. Furthermore, Crampton C.J. also held that the Emergency  
Orders containing the impugned entry requirements or measures are within the  
authority of the Administrator-In-Council, and were not unreasonable, as well as  
being within the jurisdiction of the federal government. In addition, Crampton C.J.  
held that the Emergency Orders containing the impugned entry requirements or  
measures also did not contravene s. 1(a) of the Canadian Bill of Rights [emphasis  
is mine below]:  
75  
For the reasons set forth in part VIII.A. of this decision, the Impugned Measures,  
in and of themselves, do not violate any of section s 6(1), 7, 8, 9, 10(1)(b), 11(d),  
11(e) or 12 of the Charter. However, the manner in which the Impugned Measures  
were implemented with respect to the Applicant Nicole Mathis violated her rights  
under sections 9 and 10(1)(b) of the Charter.  
In particular, (i) the refusal of border control officials to disclose to Ms. Mathis and  
her spouse the location of the facility to which she was being taken infringed her  
right under section 9, and (ii) the fact that she was not properly informed of her  
right to retain and instruct counsel without delay, infringed her rights under section  
10(1)(b).  
For the reasons set forth in part VIII.B. of this decision, those violations of Ms.  
Mathis' rights cannot be demonstrably justified in a free and democratic society.  
Given that those violations pertained to government action or administrative  
practice, the appropriate remedy lies under section 24(1) of the Charter, rather  
than section 52 of the Constitution Act, 1867: Hutterian Brethren, above, at para  
67. However, the Notice of Constitutional Question that Ms. Mathis and the other  
Spencer-Duesing Applicants served on the Respondent pursuant to section 57(1)  
of the Federal Courts Act did not give notice of an intention to seek a remedy under  
section 24(1). Instead, it only referred to the alleged violations and to section 52.  
The same is true of the written submissions that were made on behalf of those  
Applicants. Therefore, I do not consider it appropriate to issue any remedy under  
section 24(1), even though the Notice of Application filed on behalf of Ms. Mathis  
and Mr. Duesing in Court file T-366-21 referred to relief under that section.  
As a practical matter, nothing turns on this, because the evidence establishes that  
the first of the two violations of Ms. Mathis' rights has been remedied since she  
was detained at under the January Order. Under the February Order and its  
successors, travellers who are required to stay in a GAA must book their own  
reservation there (so they will know its location), while travellers who are required  
to stay in a DQF are provided with the relevant details pertaining to that facility. As  
to the second violation, border control officials will now be aware that they must  
clearly communicate the right to retain and instruct counsel in a manner that is  
readily understood, at the outset of the detention.  
For the reasons set forth in part VIII.C. of this decision, I have also concluded that  
the Orders containing the Impugned Measures are within the authority of the AIC  
and are not unreasonable.  
For the reasons provided in part VIII.D. of this decision, I have concluded that the  
Orders containing the Impugned Measures are within the jurisdiction of the federal  
government.  
Finally, for the reasons explained in Part VIII.E. of this decision, the Impugned  
Measures do not contravene section 1(a) of the Bill of Rights.  
Accordingly, these Applications will be dismissed.  
76  
5.  
ISSUES  
[112] The following are issues which have arisen in this trial and will need to be resolved:  
(a) Has the prosecution proven beyond a reasonable doubt the actus reus  
of the two offences that the defendant has been charged with committing  
under ss. 15(3) and 58 of the Quarantine Act, S.C. 2005, c. 20?  
(b) Has the defendant met her legal burden in proving the mistake of fact  
defence on a balance of probabilities, so as to make her acts or  
omissions innocent in not booking a 3-day prepaid stay at a government-  
approved hotel and in not undergoing the Day 1 COVID-19 molecular  
(PCR) test at the airport which the defendant had been legally required  
to do?  
(c) For the first basis of the defendant’s mistake of fact defence, is the  
defendant’s mistaken belief reasonable and honest that she only  
needed to have a negative PCR test and have a plan to isolate and  
quarantine for 14 days in order to fulfill the legal requirements for entry  
into Canada?  
(d) For the second basis of the defendant’s mistake of fact defence, is the  
defendant’s mistaken belief reasonable and honest that she did not have  
to comply with the entry requirements of booking a 3-day prepaid stay  
at a government-approved hotel and undergoing the Day 1 COVID-19  
molecular (PCR) test at the airport because those entry requirements  
would infringe on her right as a Canadian citizen to enter, remain in and  
leave Canada under s. 6 of the Charter?  
(e) Is the defendant’s claim of having made a reasonable and honest  
mistake of fact instead a mistake of law in essence made by the  
defendant?  
6.  
ANALYSIS  
[113] The defendant, Wai Wun HUNG, a Canadian citizen, had returned to Canada by  
air from a trip abroad on Monday, April 5, 2021. She arrived at Terminal 3 at the  
Toronto Pearson International Airport, shortly after midnight. Travellers arriving in  
Canada by air from abroad on April 5, 2021, at one of the 4 designated Canadian  
airports of Vancouver, Calgary, Toronto or Montreal were legally required to fulfill  
certain entry requirements that were set out under Order-In-Council PC #2021-  
0174 that was issued under the Quarantine Act, S.C. 2005, c. 20. Unless  
exempted, all travellers arriving at one of these 4 Canadian airports had to provide  
77  
proof that they had booked a 3-day prepaid stay at a government-approved hotel  
and to also undergo upon arrival a Day 1 COVID 19 molecular (PCR) test which  
was free of charge to travellers arriving at the airport. If an air traveller did not  
provide proof that they had booked a 3-day prepaid stay at a government-approved  
hotel or had refused to book a 3-day prepaid stay at a government-approved hotel,  
then they were issued a Certificate of Offence containing a set fine of $3000 for  
contravening s. 58 of the Quarantine Act, S.C. 2005, c. 20. And, if an air traveller  
entering Canada from abroad had refused to undergo a Day 1 COVID 19 molecular  
(PCR) test at the Toronto Pearson International Airport then they were also issued  
a Certificate of Offence containing a set fine of $1500 for contravening s. 15(3) of  
the Quarantine Act, S.C. 2005, c. 20.  
[114] After being screened for symptoms of COVID-19, and then questioned and advised  
about the entry requirements by Screening Officer Dyer at Terminal 3 at the Toronto  
Pearson International Airport, on April 5, 2021, between 00:31 a.m. and 00:33 a.m.,  
the defendant was issued 2 Certificates of Offence for contravening ss. 15(3) and  
58 of the Quarantine Act. For the offence under s. 15(3), the defendant was  
charged for “failure to comply with a reasonable measure ordered by a screening  
officer” for allegedly not undergoing a Day 1 COVID 19 molecular (PCR) test at the  
airport. And for the offence under s. 58, the defendant was charged for “failure to  
comply with an order prohibiting or subjecting to any condition the entry into  
Canada” for allegedly not booking a 3-day prepaid stay at a government-approved  
hotel.  
(A) THE OFFENCES SET OUT UNDER S. 15(3) AND S. 58 OF THE  
QUARANTINE ACT, S.C. 2005, C. 20, ARE STRICT LIABILITY  
OFFENCES  
[115] Both counsel for the prosecution and the legal representative for the defendant had  
agreed that the offences set out under s. 15(3) and s. 58 of the Quarantine Act,  
S.C. 2005, c. 20, are strict liability offences. In addition, both offences under the  
federal Quarantine Act are being prosecuted under the Contraventions Act, S.C.  
1992, c. 47, by a prosecutor for the City of Mississauga.  
[116] In the seminal case of R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, the  
Supreme Court of Canada had recognized and established 3 categories of offences  
for Canada, consisting of mens rea offences, strict liability offences, and absolute  
liability offences. For a strict liability offence, the defence of mistake of fact will be  
available if the accused had reasonably believed in a mistaken set of facts which,  
if true, would render the act or omission innocent [emphasis is mine below]:  
The correct approach, in my opinion, is to relieve the Crown of the burden of  
proving mens rea, having regard to Pierce Fisheries and to the virtual impossibility  
in most regulatory cases of proving wrongful intention. In a normal case, the  
accused alone will have knowledge of what he has done to avoid the breach and  
it is not improper to expect him to come forward with the evidence of due diligence.  
78  
This is particularly so when it is alleged, for example, that pollution was caused by  
the activities of a large and complex corporation.  
Equally, there is nothing wrong with rejecting absolute liability and admitting the  
defence of reasonable care.  
In this doctrine it is not up to the prosecution to prove negligence. Instead, it is  
open to the defendant to prove that all due care has been taken. This burden falls  
upon the defendant as he is the only one who will generally have the means of  
proof. This would not seem unfair as the alternative is absolute liability which  
denies an accused any defence whatsoever. While the prosecution must prove  
beyond a reasonable doubt that the defendant committed the prohibited act, the  
defendant must only establish on the balance of probabilities that he has a defence  
of reasonable care.  
I conclude, for the reasons which I have sought to express, that there are  
compelling grounds for the recognition of three categories of offences rather than  
the traditional two:  
1. Offences in which mens rea, consisting of some positive state of mind  
such as intent, knowledge, or recklessness, must be proved by the  
prosecution either as an inference from the nature of the act committed,  
or by additional evidence.  
2. Offences in which there is no necessity for the prosecution to prove the  
existence of mens rea; the doing of the prohibited act prima facie imports  
the offence, leaving it open to the accused to avoid liability by proving  
that he took all reasonable care. This involves consideration of what a  
reasonable man would have done in the circumstances. The defence will  
be available if the accused reasonably believed in a mistaken set of facts  
which, if true, would render the act or omission innocent, or if he took all  
reasonable steps to avoid the particular event. These offences may  
properly be called offences of strict liability. Mr. Justice Estey so referred  
to them in Hickey's case.  
3. Offences of absolute liability where it is not open to the accused to  
exculpate himself by showing that he was free of fault.  
Offences which are criminal in the true sense fall in the first category. Public  
welfare offences would prima facie be in the second category. They are not subject  
to the presumption of full mens rea. An offence of this type would fall in the first  
category only if such words as "wilfully," "with intent," "knowingly," or "intentionally"  
are contained in the statutory provision creating the offence. On the other hand,  
the principle that punishment should in general not be inflicted on those without  
fault applies. Offences of absolute liability would be those in respect of which the  
Legislature had made it clear that guilt would follow proof merely of the proscribed  
act. The overall regulatory pattern adopted by the Legislature, the subject matter  
of the legislation, the importance of the penalty, and the precision of the language  
used will be primary considerations in determining whether the offence falls into  
the third category.  
79  
[117] However, unlike the mistake of fact defence for a mens rea offence in which the  
defence will be made out of the accused is found to have an honest belief in a set  
of facts, which if true, would render the act or omission innocent, the mistaken belief  
in a set of facts for a strict liability offence has to be both objectively reasonable  
and honest in order for the mistake of fact defence to be made out by the defendant.  
Ergo, the mistaken belief in a set of facts for a strict liability offence must be  
considered on an objective basis and not only on the subjective belief of the  
defendant.  
[118] Accordingly, for the first stage of this strict liability proceeding the prosecution has  
the legal burden to prove the actus reus of the offence beyond a reasonable doubt  
for both charges. The prosecution is not legally required to prove any mens rea for  
the two offences in the first stage of this proceeding. If the prosecution meets its  
legal burden of proof for both offences, then for the second stage of this strict liability  
proceeding the defendant has the legal burden of proof on a balance of probabilities  
to prove that she had taken all reasonable steps for the circumstances to avoid  
committing the offence or that she had reasonably believed in a mistaken set of  
facts which, if true, would render the act or omission innocent, in order to be  
acquitted of the two offences. If the defendant fails to prove either of taking all  
reasonable steps to avoid committing the offences or the defence of mistake of fact  
on a balance of probabilities for both charges, then the defendant will be convicted  
of committing the two Quarantine Act offences.  
(B) FIRST STAGE OF THE INQUIRY: HAS THE PROSECUTION PROVEN  
BEYOND A REASONABLE DOUBT THE ACTUS REUS OF THE TWO  
OFFENCES THE DEFENDANT HAS BEEN CHARGED WITH?  
[119] As both charges under the Quarantine Act are strict liability offences, then the  
prosecution is only legally required to prove the actus reus or prohibited act for both  
offences, and the prosecution is not required to prove any mens rea for both  
offences. But more importantly, courts are not asked to consider whether  
government policy is correct, but to adjudicate on whether the actual charges before  
the court have been proven beyond a reasonable doubt by the prosecution.  
(1) 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 (the entry requirement of having to book a 3-day  
prepaid stay at a government-approved hotel)  
[120] The s. 58 offence of “failure to comply with an order prohibiting or subjecting to any  
condition the entry into Canadaunder the Quarantine Act is in relation to the entry  
requirement of the defendant having to book a 3-day prepaid stay at a government-  
80  
approved hotel. Section 58 of the Quarantine Act provides that 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, if the Governor  
in Council is of the opinion that the 4 conditions set out in s. 58(1) are in existence  
[emphasis is mine below]:  
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  
[121] The defendant had arrived at Terminal 3 of the Toronto Pearson International  
Airport from being abroad on April 5, 2021. Under s. 3.4 of Order-In-Council PC  
#2021-0174, the defendant had been legally required to book a 3-day prepaid stay  
at a government-approved hotel and before boarding the aircraft for the flight to  
Canada, the defendant was required to provide proof of the prepaid booking to the  
Minister of Health, screening officer, or quarantine officer by electronic means.  
Subsection 3.4(a) and 3.4(b) provides that: every person who enters Canada by  
aircraft must meet the following requirements before boarding the aircraft for the  
flight to Canada: (a) provide to the Minister of Health, screening officer or quarantine  
officer 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; and (b) provide the evidence of prepaid  
accommodation referred to in paragraph (a) by electronic means specified by the  
Minister of Health [emphasis is mine below]:  
Prepaid accommodation requirements  
81  
3.4  
Subject to section 3.5, every person who enters Canada by aircraft must meet  
the following requirements before boarding the aircraft for the flight to Canada:  
(a) provide to the Minister of Health, screening officer or quarantine officer  
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; and  
(b) provide the evidence of prepaid accommodation referred to in paragraph  
(a) 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 the evidence by electronic means for a reason such as a  
disability, inadequate infrastructure, a service disruption or a natural  
disaster, in which case the evidence may be provided in the form and  
manner and at the time specified by the Minister of Health.  
[122] Proof that the actus reus of the offence has been committed by the defendant is  
contained in the “Traveller Contact Information Form(Exhibit #1), which had been  
completed by the defendant, and which also indicates that the defendant did not  
book a 3-day prepaid stay at a government-approved hotel. In addition, Screening  
Officer Dyer had testified that the defendant had completed the Traveller Contact  
Information Form and had provided it to the CBSA and to the Public Health Agency  
of Canada at the Toronto Pearson International Airport on August 5, 2021. The  
Traveller Contact Information Form is therefore documentary evidence that the  
defendant did not book a 3-day prepaid stay at a government-approved hotel prior  
to her interaction with Screening Officer Dyer at Terminal 3 at the Toronto Pearson  
International Airport on April 5, 2021.  
[123] In addition, when the defendant appeared in front of Screening Officer Dyer, which  
had also provided an opportunity for the defendant to comply with the legal  
requirement of booking a 3-day prepaid stay at a government-approved hotel with  
the assistance of Dyer, and where a list of approved hotels and telephones were  
also available and provided to travellers who had not yet booked the mandatory 3-  
day prepaid stay at a government-approved hotel, and after Screening Officer Dyer  
had explained to the defendant about the legal requirement to book the 3-day  
prepaid stay and the penal consequences for not doing so, Dyer had testified that  
the defendant had chosen not to book the 3-day prepaid stay at a government-  
approved hotel. It was at that point that Screening Officer Dyer had issued the  
Certificate of Offence to the defendant for contravening s. 58 of the Contraventions  
Act with a set fine at $3,000.  
[124] Furthermore, the defendant had also testified at trial that she had been told by  
Screening Officer Dyer about the entry requirement of having to book a 3-day  
prepaid stay at a government-approved hotel and the penal consequences for not  
booking that 3-day prepaid stay. The defendant had also testified that she did not  
book the 3-day prepaid stay at a government-approved hotel.  
82  
[125] Therefore, the prosecution has proven beyond a reasonable doubt that the  
defendant has committed the actus reus of the offence for the s. 58 offence of  
failure to comply with an order prohibiting or subjecting to any condition the entry  
into Canada” under the Quarantine Act, in which the defendant did not book a 3-  
day prepaid stay at a government approved hotel on April 5, 2021, at 00:31 a.m.  
(2) 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 (the entry requirement for air  
travellers entering Canada from aboard having to undergo a Day 1  
COVID-19 (PCR) test at the airport upon arrival  
[126] The s. 15(3) offence of “failure to comply with a reasonable measure ordered by a  
screening officerunder the Quarantine Act is in relation to the entry requirement of  
the defendant having to undergo a Day 1 COVID-19 molecular (PCR) test at the  
airport upon arrival from abroad. Subsection 15(3) of the Quarantine Act, provides  
that, Every traveller shall comply with any reasonable measure ordered by a  
screening officer or quarantine officer for the purpose of preventing the introduction  
and spread of a communicable disease” [emphasis is mine below]:  
Duty to provide information  
15(1) Every traveller shall answer any relevant questions asked by a screening  
officer or quarantine officer and provide to the officer any information or record  
in their possession that the officer may reasonably require in the performance  
of a duty under this Act.  
Duty to disclose communicable disease  
(2) Any traveller who has reasonable grounds to suspect that they have or might  
have a communicable disease listed in the schedule or are infested with  
vectors, or that they have recently been in close proximity to a person who has,  
or is reasonably likely to have, a communicable disease listed in the schedule  
or is infested with vectors, shall disclose that fact to a screening officer or  
quarantine officer.  
Compliance with measures  
(3) Every traveller shall comply with any reasonable measure ordered by a  
screening officer or quarantine officer for the purpose of preventing the  
introduction and spread of a communicable disease.  
[127] The defendant had arrived at the Toronto International Airport from being abroad  
on April 5, 2021. Under s. 2.3(1)(a) of Order-In-Council PC #2021-0174 the  
defendant had been legally required to undergo a Day 1 COVID-19 molecular test  
83  
at the airport upon her arrival from abroad. Subsection 2.3(1) states that “Every  
person who enters Canada by … aircraft must, in accordance with the instructions  
of a quarantine officer or the Minister of Health, undergo a COVID-19 molecular test  
(a) when entering Canada[emphasis is mine below]:  
Tests in Canada  
2.3(1) Every person who enters Canada by land or aircraft must, in accordance  
with the instructions of a quarantine officer or the Minister of Health,  
undergo a COVID-19 molecular test  
(a) when entering Canada; and  
(b) after entering Canada  
[128] Proof that the actus reus of the offence has been committed is from the testimony  
of Screening Officer Dyer, who had also explained to the defendant on April 5, 2021,  
between 00:31 a.m. and 00:33 a.m., about the legal entry requirement of having to  
undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival from  
aboard and the penal consequences for not doing so. In addition, Dyer testified  
that the COVID-19 molecular (PCR) test was also free of charge to the defendant.  
Dyer also testified that after Dyer had informed the defendant about the entry  
requirement of having to undergo the Day 1 COVID-19 molecular (PCR) test at the  
airport, the defendant had opted not to undergo having that Day 1 COVID-19  
molecular (PCR) test.  
[129] Furthermore, the defendant had also testified at trial that she had been told by  
Screening Officer Dyer about the entry requirement of having to undergo the Day 1  
COVID-19 molecular (PCR) test upon arrival at the airport and the penal  
consequences for not undergo the Day 1 test.  
[130] The defendant also testified at trial that she did not undergo the COVID-19 test at  
the airport because she already had received a negative COVID-19 molecular  
(PCR) test before she boarded the flight from Columbia.  
[131] Ergo, the prosecution has proven beyond a reasonable doubt the actus reus of the  
offence for the s. 15(3) offence of “failure to comply with a reasonable measure  
ordered by a screening officerunder the Quarantine Act, in which the defendant  
did not undergo the Day 1 COVID-19 molecular (PCR) test upon arrival at the  
Toronto Pearson International Airport on April 5, 2021, at 00:33 a.m.  
(C) SECOND STAGE OF THE INQUIRY: HAS THE DEFENDANT PROVEN  
THE DEFENCE OF MISTAKE OF FACT ON A BALANCE OF  
PROBABILITIES?  
84  
[132] Once the actus reus of these 2 strict liability offences have been proven by the  
prosecution beyond a reasonable doubt, then for the second stage of the inquiry,  
the legal or persuasive burden is on the defendant to prove on a balance of  
probabilities that the defendant had taken all reasonable steps to avoid the  
particular event or that the defendant had reasonably believed in a mistaken set of  
facts which, if true, would render the act or omission innocent, in order for the  
defendant to avoid being convicted of these 2 offences: R. v. Sault Ste. Marie (City),  
[1978] 2 S.C.R. 1299 (S.C.C.):  
Offences in which there is no necessity for the prosecution to prove the existence  
of mens rea; the doing of the prohibited act prima facie imports the offence, leaving  
it open to the accused to avoid liability by proving that he took all reasonable care.  
This involves consideration of what a reasonable man would have done in the  
circumstances. The defence will be available if the accused reasonably believed  
in a mistaken set of facts which, if true, would render the act or omission innocent,  
or if he took all reasonable steps to avoid the particular event. These offences may  
properly be called offences of strict liability. ...  
[133] For the second stage of this inquiry, the defendant contends that she should be  
acquitted of committing the two offences under ss. 15(3) and 58 of the Quarantine  
Act because of her mistake of fact defence which has two bases. For the first basis  
of her mistake of fact defence, the defendant contends that she had a mistaken  
belief on April 5, 2021 that she had indeed met the entry requirements which  
consisted of only having to have a negative COVID-19 molecular (PCR) test within  
72 hours before her flight for Canada departed and having and providing  
electronically to the Minister of Health a suitable quarantine plan for 14 days before  
boarding her flight back to Canada. And, for the second basis of her mistake of fact  
defence, the defendant contends that she had mistakenly believed that did not have  
to book a 3-day stay at a government-approved hotel or to undergo the Day 1  
COVID-19 molecular (PCR) test at the airport upon arrival because she believed  
that these entry requirements would violate her Charter rights, especially her s. 6  
Charter right which guaranteed her right as Canadian citizen to enter, remain in and  
leave Canada.  
[134] If the defendant fails to prove the mistake of fact defence on a balance of  
probabilities, then she will be found guilty of committing the two Quarantine Act  
offences beyond a reasonable doubt.  
(1) Mistake of fact for a strict liability offence must be both reasonable  
and honest  
[135] In Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt  
Legal Press Inc., 2002), ((looseleaf) update 11 February 2008), Professor Libman  
at p. 7-5, (update 9 April 2007) indicates that an inquiry into whether the accused  
person did everything reasonably within their power to ascertain the true state of  
85  
affairs is required in order to determine the reasonableness of the accused’s  
mistaken belief in a set of circumstances. In addition, Professor Libman notes that  
the defendant must demonstrate that not only was the mistake of fact an honest  
one, but also that it was based on reasonable grounds. The test to determine  
reasonableness is in effect a combination of subjective and objective elements.  
And, whether a person actually believed or not depends on “proof either directly or  
inferentially of what was subjectively in his mind at the time”. In addition, whether  
that belief was reasonable or not will be determined after an objective examination  
of the facts which were known to him or should have been known to him when he  
formed that belief [emphasis is mine below]:  
Practically speaking, however, “the two aspects of the defence ultimately  
converge, since to establish the reasonableness of the mistaken belief an inquiry  
is necessary to determine whether the accused did everything reasonably within  
his power to ascertain the true state of affairs”.1 (1 R. v. Nitrochem Inc., (1993), 14  
C.E.L.R. (N.S.) 151 at 163, [1993] O.J. No. 3336 (QL) (Prov. Ct.); R. v. Mac’s  
Convenience Stores Inc. (1985), 14 C.E.L.R. 120 (Ont. Prov. Ct.).)  
Offences involving mens rea provide for a defence of honest mistake of fact, since  
a person who honestly believes that he or she is not committing an essential  
element of the offence does not possess the requisite mental state necessary for  
a conviction.  
However, in strict liability offences, the defendant must demonstrate that not only  
was the mistake of fact an honest one, but also that it was based on reasonable  
grounds.  
Where the defendants put forth the defence of mistake of fact, they must show that  
they reasonably believed in the mistaken set of facts. The test is in effect a  
combination of subjective and objective elements. Whether a person actually  
believed or not depends on “proof either directly or inferentially of what was  
subjectively in his mind at the time”. Whether that belief was reasonable or not will  
be determined after an objective examination of the facts which were known to him  
or should have been known to him when he formed the belief. In other words,  
“could a person in the defendant’s position, with the knowledge that he had or  
should have had, reasonably have reached the conclusion he did”.  
(2) Mistake of Law is not a valid defence  
[136] In La Souveraine, Compagnie d'assurance générale v. Autorité des marchés  
financiers, [2013] S.C.J. No. 63 (S.C.C.), at paras. 56 to 77, Lamer J., writing for  
the majority of the Supreme Court of Canada, explained that the due diligence  
defence will not be available if an accused person relies solely on a mistake of law”  
to explain the commission of the offence. The appellant company in that case had  
contended that the due diligence defence should be available since it had been  
unaware that its broker did not hold a license in Quebec. Moreover, the appellant  
86  
company contended that it had mistakenly believed in the existence of a legal  
situation because of a set of facts that were actually true or that its belief in that  
mistaken legal situation was justified and should be excused in light of that factual  
reality. Lamer J., in rejecting the appellant’s argument, held that the appellant  
company's arguments can lead to only one conclusion, that its mistake was one of  
law. Furthermore, Lamer J. held that under Canadian law, a mistake of law can  
ground a valid defence only if the mistake was an officially induced errorand if the  
conditions laid down in R. v. Jorgensen, [1995] S.C.J. No. 92 (S.C.C.) with respect  
to the application of such a defence are met. Lamer J. also reasoned that an  
accused person would gain nothing by showing that it made a reasonable effort to  
know the law or that it acted in good faith in ignorance of the law, since such  
evidence cannot exempt it from liability. Moreover, Lamer J. noted that under the  
law as it now stands in Canada, no matter how reasonable a mistake of law may  
be, it cannot - unlike a mistake of fact or an officially induced error - serve as a valid  
defence in the case of a strict liability offence. Lamer also remarked that the  
Supreme Court of Canada has held many a time that the fact that a defendant has  
exercised due diligence to find out and verify the nature of the applicable law is not  
a defence. In addition, Lamer further explained that the rule with respect to  
ignorance of the law exists to ensure that the criminal justice system functions  
properly and that social order is preserved. Furthermore, on the issue of whether  
the Supreme Court should recognize a defence of a reasonable mistake of law,  
Lamer J. concluded that because of the objective of public protection that underlies  
the creation of regulatory offences it would militate strongly against accepting a  
general defence of reasonable mistake of law in this context [emphasis is mine  
below]:  
The due diligence defence is available if the defendant reasonably believed in a  
mistaken set of facts that, if true, would have rendered his or her act or omission  
innocent. A defendant can also avoid liability by showing that he or she took all  
reasonable steps to avoid the particular event (Sault Ste. Marie, at p. 1326). The  
defence of due diligence is based on an objective standard: it requires  
consideration of what a reasonable person would have done in similar  
circumstances.  
However, this defence will not be available if the defendant relies solely on a  
mistake of law to explain the commission of the offence. Under Canadian law, a  
mistake of law can ground a valid defence only if the mistake was an officially  
induced error and if the conditions laid down in R. v. Jorgensen, [1995] 4 S.C.R.  
55, with respect to the application of such a defence are met. A defendant can  
therefore gain nothing by showing that it made a reasonable effort to know the law  
or that it acted in good faith in ignorance of the law, since such evidence cannot  
exempt it from liability.  
In this Court, the appellant argues that the due diligence defence was available in  
this case because it was unaware that its broker did not hold a license in Quebec.  
Thus, the question is purely one of fact.  
87  
I cannot accept this argument. The testimonial evidence shows that the appellant  
consented to and/or authorized the issuance by its broker, Flanders, of the  
individual insurance certificates to the Quebec dealerships because it believed that  
the broker did not need to hold a license given that the certificates were merely  
accessory to the master policy issued to GE in Ontario. The evidence does not  
support the conclusion suggested by the appellant, namely that it consented to  
and/or authorized the issuance of the certificates because it mistakenly believed  
that Flanders was duly registered with the AMF in Quebec. On the contrary, the  
appellant explained that it would have been alarmed if it had learned that Flanders  
was distributing insurance products in Quebec other than those accessory to the  
master policy issued to GE. The appellant said that Flanders had assured it that it  
was using the services of a broker licensed in Quebec in such cases.  
In my opinion, the appellant's arguments can lead to only one conclusion: its  
mistake was one of law. Moreover, I note that the appellant is not claiming that it  
believed in a mistaken legal situation and, at the same time, a mistaken set of  
facts. Rather, it is arguing that it mistakenly believed in the existence of a legal  
situation because of a set of facts that were actually true. At the very least, it claims  
that its belief in that mistaken legal situation was justified and should be excused  
in light of that factual reality.  
In this regard, I agree with Cournoyer J.A. that [TRANSLATION] "[t]he AMF's  
silence cannot on its own transform an error of law into an error of mixed fact and  
law" (para. 232). And as I mentioned above, under the law as it now stands in  
Canada, no matter how reasonable a mistake of law may be, it cannot - unlike a  
mistake of fact or an officially induced error - serve as a valid defence in the case  
of a strict liability offence. In Molis v. The Queen, [1980] 2 S.C.R. 356, Lamer J.  
noted:  
... the defence of due diligence that was referred to in Sault Ste. Marie is that of  
due diligence in relation to the fulfilment of a duty imposed by law and not in relation  
to the ascertainment of the existence of a prohibition or its interpretation. [p. 364]  
Since the mistake relied on by the appellant was purely one of law, I find that the  
appellant's argument based on the mistake having been one of mixed fact and law  
must be rejected and that the due diligence defence was not available in the instant  
case.  
However, the appellant also argues, in the alternative, that this Court should qualify  
the rule with respect to ignorance of the law and recognize reasonable mistake of  
law in the vast mosaic of regulatory offences. More specifically, it asks that this  
defence be made available in cases in which reasonable ignorance of or honest  
confusion about the applicable law is closely tied to improper conduct on the part  
of a regulatory body. It thus argues that the competent authority set a "trap" by  
acting unfairly toward it. I will now consider this final argument.  
E. Reasonable Mistake of Law  
This Court has held many a time that the fact that a defendant has exercised due  
diligence to find out and verify the nature of the applicable law is not a defence  
88  
(City of Lévis, at para. 22). It has characterized the rule with respect to ignorance  
of the law as "an orienting principle of our criminal law which should not be lightly  
disturbed" (Jorgensen, at para. 5, per Lamer C.J.). In City of Lévis, at paras. 22-  
27, LeBel J. noted that this rule has the same weight in regulatory law.  
The rule with respect to ignorance of the law exists to ensure that the criminal  
justice system functions properly and that social order is preserved. G. Côté-  
Harper, P. Rainville and J. Turgeon explain this rule, conveyed by the maxim  
"ignorance of the law is no excuse", as follows (Traité de droit pénal canadien (4th  
ed. 1998), at p. 1098):  
[TRANSLATION] The presumption of knowledge of the law becomes the quid pro  
quo for the principle of legality. The legislature assures citizens that it will not  
punish them without first telling them what is prohibited or required. But in  
exchange, it imposes on them an obligation to ask for information before acting...  
.
Fear of social disorder and anarchy is the main argument of those who want to  
uphold the maxim. To accept an unrestricted possibility of hiding behind a  
subjective excuse of ignorance would be dangerous and improper.  
In Jorgensen, Lamer C.J. also endorsed this view, quoting the following passage  
on the rationale for the rule against a defence based on mistake of law:  
Don Stuart identifies four aspects of the rationale for the rule against accepting  
ignorance of the law as an excuse:  
1.  
Allowing a defence of ignorance of the law would involve the courts in  
insuperable evidential problems.  
2.  
3.  
It would encourage ignorance where knowledge is socially desirable.  
Otherwise every person would be a law unto himself, infringing the principle  
of legality and contradicting the moral principles underlying the law.  
Ignorance of the law is blameworthy in itself.  
4.  
(Canadian Criminal Law: A Treatise (3rd ed. 1995), at pp. 295-98) [para. 5]  
It should nonetheless be noted that if the rule that ignorantia juris non excusat-  
ignorance of the law excuses no one - were absolute, this could seriously hinder  
the application of another cardinal rule of our criminal justice system: there can be  
no punishment without fault. The overlap between these rules is all the more  
significant given the current simultaneous proliferation of regulatory measures and  
penal statutes. Indeed, several authors have pointed out that it is now impossible  
for citizens to have comprehensive knowledge of every law:  
[TRANSLATION] The presumption of knowledge of laws was acceptable and  
defensible in the past because those laws concerned only serious offences and  
crimes against morality. The situation is very different today, and the criminal or  
penal law must be interpreted by consulting an abundant case law. The much-  
discussed multiplication of penal statutes must also be considered, and no one,  
not even criminal lawyers and other specialists in such matters, can profess to  
know all of them. The situation created by this proliferation of statutes is  
aggravated by the problem of their publication, which, although formal, is often not  
really effective.  
89  
(Côté-Harper, Rainville and Turgeon, at p. 1099)  
Dickson J. also commented on this in Sault Ste. Marie, at p. 1310:  
Public welfare offences obviously lie in a field of conflicting values. It is essential  
for society to maintain, through effective enforcement, high standards of public  
health and safety. Potential victims of those who carry on latently pernicious  
activities have a strong claim to consideration. On the other hand, there is a  
generally held revulsion against punishment of the morally innocent.  
Despite the problems that flow from regulatory measures, the rise in the number  
of such measures and the commensurate multiplication of penal provisions  
designed to enforce them go hand in hand with the evolution of modern societies.  
These trends are well established. Regulatory measures are adopted to protect  
the public from dangers that can result from activities that are otherwise legitimate.  
The reason why penal sanctions are used in this context rather than civil law or  
administrative law sanctions lies in the deterrent power of penal law (H. Parent,  
Traité de droit criminel, vol. 2 (2nd ed. 2007), at paras. 496-500). Cory J. eloquently  
explained the importance of regulatory offences in R. v. Wholesale Travel Group  
Inc., [1991] 3 S.C.R. 154, at pp. 221-22:  
It is difficult to think of an aspect of our lives that is not regulated for our benefit  
and for the protection of society as a whole. From cradle to grave, we are protected  
by regulations; they apply to the doctors attending our entry into this world and to  
the morticians present at our departure. Every day, from waking to sleeping, we  
profit from regulatory measures which we often take for granted... .  
In short, regulation is absolutely essential for our protection and well being as  
individuals, and for the effective functioning of society. It is properly present  
throughout our lives.  
The foregoing discussion underscores the conflicts that inevitably result from the  
constantly expanding presence of regulatory measures. Such measures play an  
essential role in the implementation of public policy. The rule that ignorance of the  
law is not a valid defence supports the state's duty in this regard. For this reason  
alone, it needs to be enforced.  
At the same time, the rise in the number of statutes coupled with their growing  
complexity increases the risk that a citizen will be punished in circumstances in  
which ignorance of the law might nevertheless be understandable.  
In light of all these considerations, I find that the objective of public protection that  
underlies the creation of regulatory offences militates strongly against accepting a  
general defence of reasonable mistake of law in this context. As Cory J. noted in  
Wholesale Travel, at p. 219,  
[r]egulatory legislation involves a shift of emphasis from the protection of individual  
interests and the deterrence and punishment of acts involving moral fault to the  
protection of public and societal interests.  
90  
Moreover, it is incumbent on a regulated entity that engages in an activity requiring  
specific knowledge, including knowledge of the applicable law, to obtain that  
knowledge. The following observations of Hugues Parent are of particular  
relevance in a regulatory context such as the one in the instant case. Although he  
objects to the rule conveyed by the maxim "ignorance of the law is no excuse"  
being absolute, Parent mentions a very important limit - unforeseeability of the  
mistake - that would have to apply should the rule be relaxed:  
[TRANSLATION] An individual who acts in ignorance of a provision he or she is not in  
a position to know about, despite being in good faith and exercising due diligence, does  
wrong unknowingly, and therefore unintentionally. Such an individual cannot therefore  
be held liable.  
To be successfully argued, insurmountable ignorance of the law must be  
unforeseeable, which means that it must not be related to an activity requiring special  
knowledge: thus, a professional fisher charged with possession of immature lobsters  
cannot use ignorance of the law as a defence. As O'Hearn Co. Ct. J. stated in [R. v.  
Maclean (1974), 17 C.C.C. (2d) 84 (N.S. Co. Ct.)], "if an accused wishes to indulge in  
an activity that requires special knowledge including knowledge of the applicable law,  
he can fairly be held to be under an obligation to acquire that knowledge". Because the  
information needed to attain that knowledge is essential, it must be accessible and  
comprehensible. [Emphasis in original.]  
(Traité de droit criminel, vol. 1 (3rd ed. 2008), at paras. 580-81)  
[137] To reiterate, a mistake of law is not a valid defence, unless it is proven that the  
mistake was an officially induced error.  
(3) The Defendants Assertions Of Mistakes Of Fact Are Actually  
Mistakes Of Law  
[138] The defendant is trying to aver as the two bases of her mistake of fact defence that  
the defendant had mistakenly believed she had complied with the entry  
requirements when she arrived at the Toronto Pearson International Airport On April  
5, 2021 and did not know that she had to also comply with two other entry  
requirements, as well as mistakenly believing that if she were to comply with the  
additional entry requirements of having to book a 3-day prepaid stay at a  
government-approved hotel and in having to undergo the Day 1 COVID-19  
molecular (PCR) test at the airport upon her arrival, then having to comply with the  
impugned entry requirements would violate her Charter rights.  
[139] However, the defendant’s two bases for her mistake of fact defence are in essence  
“mistakes of law” or “ignorance of the law”. But more importantly, making a mistake  
of law or ignorance of the law are not legally recognized by the courts as a valid  
defence. 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 what the law is or whether it applied to her or  
whether a law violates the Charter is fundamentally ignorance of the law or a  
91  
mistake in law made by the defendant and not a mistake of fact that is made by the  
defendant.  
[140] Moreover, when read in conjunction with s. 5 of the Contraventions Act, S.C. 1992,  
c. 47, which is the procedural statute that governs the prosecution of federal  
contraventions, and which also provides that the provisions of the Criminal Code  
relating to summary conviction offences and the provisions of the Youth Criminal  
Justice Act apply to proceedings in respect of contraventions that are commenced  
under the Contraventions Act, except to the extent that the Contraventions Act, the  
regulations or the rules of court provide otherwise. As such, s. 19 of the Criminal  
Code, which expressly provides that ignorance of the lawby a person who  
commits an offence is not an excuse for committing that offence would also apply  
to the defendant in respect to the two contraventions she has been charged with  
committing.  
(a) The first basis of the defendant’s claim of a mistaken belief  
that she had complied with the entry requirements on April  
5, 2021 is in essence a mistake of law  
[141] The first basis of the defendant’s mistake of fact defence is that the defendant  
mistakenly believed she had actually met the entry requirements on April 5, 2021,  
of providing proof electronically to the Minister of Health of having a negative  
COVID-19 molecular (PCR) test within 72 hours of the departure time of her flight  
to Canada and in having and providing a quarantine plan for 14 days and not  
knowing that she had to also comply with the other two 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.  
[142] However, the first basis of the defendant’s claim of a mistake of fact that she had  
mistakenly believed that she had fulfilled the necessary entry requirements required  
by law or had complied with the law, when she in fact did not comply with all the  
entry requirements mandated by law is not a mistake in fact, but is ignorance of the  
law or a mistake of law made by the defendant. The defendant’s claim of a mistaken  
belief in a set of circumstances is not related to an element of the actus reus of the  
offence that has to be proven by the prosecution. It is a mistaken belief by the  
defendant in what the law says or does not say and not a mistaken belief in the  
existence or non-existence of a fact, such as she had a mistaken belief in the fact  
that she had arrived in an airport in the United States and not in Canada, when she  
got off the airplane on April 5, 2021.  
(b) The second basis of the defendant’s claim of a mistaken  
belief that she did not have to comply with the impugned  
entry requirements on April 5, 2021, because they would  
violate her Charter rights is in essence a mistake of law  
92  
[143] Like the first basis of the defendant’s mistake of fact defence, the second basis is  
also not a mistake of fact, but is in essence ignorance of the lawor a mistake of  
lawthat has been made by the defendant. To reiterate, ignorance of the law or a  
mistake of law is not a valid defence that would excuse the defendant of not  
complying with the entry requirements.  
[144] Equally to the first basis of the defendant’s mistake of fact defence, the defendant’s  
belief that she did not have to comply with a law because doing so would infringe  
on her Charter rights, especially her s. 6 right as a Canadian citizen to enter, remain  
in and leave Canada, is ignorance of the law or a mistake of law and not a mistaken  
belief in a set of circumstances that is related to an element of the actus reus of the  
offence that has to be proven by the prosecution. It is a mistaken belief by the  
defendant on whether the law is valid and whether it applies to her, and not a  
mistaken belief in the existence or non-existence of a fact.  
[145] Furthermore, the defendant’s belief that those two particular entry requirements of  
having to book a 3-day prepaid stay at a government-approved hotel and of having  
to undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon arrival would  
violate her Charter rights, was based on what the defendant had read about on the  
internet while she was at the Miami airport on a layover. However, merely reading  
someone’s opinion on the internet, especially if it is not a judicial determination, that  
complying with the entry requirements would violate the Charter does not make the  
defendant’s belief about the invalidity of the two impugned entry requirements a  
mistake of fact. Moreover, the defendant’s erroneous belief about the invalidity of  
the two entry requirements under the Charter based on what she read on the  
internet would still be classified as ignorance of the law or a mistake of law.  
[146] But more significantly, in respect to whether the impugned entry requirement would  
infringe s. 6 of the Charter that the defendant had alluded to, as the second basis  
of her mistake of fact defence, Crampton, C.J. of the Federal Court in Spencer v.  
Canada (Minister of Health), [2021] F.C.J. No. 622, had held on June 18, 2021,  
which is about 2 months after the defendant was charged with committing the 2  
offences under the Quarantine Act on April 5, 2021, that the entry requirement of  
an air traveller returning to Canada from aboard having to book a 3-day prepaid  
stay at a government-approved hotel did not infringe s. 6(1) of the Charter.  
[147] Ergo, the defendant’s contention that she had mistakenly believed that she did not  
have to comply with the entry requirements of booking a 3-day prepaid stay at a  
government-approved hotel and in having to undergo a Day 1 COVID-19 molecular  
(PCR) test at the airport upon arrival because complying with those two particular  
entry requirements would have violated her Charter rights is a mistake of law or  
ignorance of the law, which is not a valid defence.  
(c) There is no evidence of an “officially induced error”  
93  
[148] 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 published Canadian government information that she had only needed as  
entry requirements for April 5, 2021, the requirement to 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 the  
requirement to have and provide a quarantine plan for 14 days, that would be akin  
to an “officially induced error”, and which would be the exception to the principle  
that a mistake of law is not a defence.  
(4) Even If The Defendants Assertions Were Not Mistakes Of Law, The  
Defendant Still Would Have Failed To Prove That The Defendant’s  
Mistaken Beliefs Were Both Reasonable And Honest On A Balance  
Of Probabilities  
(a) The defendant’s 2 bases for her mistake of fact defence  
contradict each other  
[149] The defendant’s two bases for her mistake of fact defence also contradict each  
other, since the first basis of the defendant’s mistake of fact defence is based on  
her believing that there were only two entry requirements that she had to comply  
with, namely of having a negative COVID-19 molecular (PCR) test 72 hours before  
the scheduled departure of her flight back to Canada and for having a quarantine  
plan to stay at her friend’s condo for 14 days after returning to Canada, and in also  
not knowing about the two other entry requirements of having to book a prepaid 3-  
day stay at a government-approved hotel and in having to undergo the Day 1  
COVID-19 molecular (PCR) test at the airport upon arrival; while for the second  
basis of the defendant’s mistake of fact defence, the defendant had testified that  
she did not believe that she had to comply with those same two entry requirements  
on April 5, 2021, at the Toronto Pearson International Airport of having to book a  
prepaid 3-day stay at a government-approved hotel and having to undergo the Day  
1 COVID-19 molecular (PCR) test at the airport upon arrival because of her belief  
that complying with those two entry requirements would violate her s. 6 Charter  
right as a Canadian citizen to enter, remain in, and leave Canada.  
[150] In other words, the defendant is claiming for the first basis of her mistake of fact  
defence that she did not know she had to comply with the entry requirements of  
having to book a 3-day prepaid stay at a government-approved hotel and in having  
to undergo a Day 1 COVID-19 molecular (PCR) test at the airport, yet then claims  
at the same time for the second basis of her mistake of fact defence that she had  
mistakenly believed that she did not have to comply with those same two entry  
requirements (which she said she did not know about for the first basis of the  
mistake of fact defence) as she had believed those two specific entry requirements  
would violate her Charter rights if she had complied with them, which she said she  
had read about on the internet while she was at the Miami airport on the layover.  
94  
In short, the defendant says that she knows about the two impugned entry  
requirements when it is convenient for her to know about them, but when it is  
inconvenient for her to know about them, then she says she did not know about  
those two impugned entry requirements. Ergo, this contradiction undermines the  
defendant’s credibility and does not support the defendant’s claim that her mistaken  
belief in a set of circumstances is both reasonable and honest.  
(b) The mistake of fact assertion is to be considered at the time  
the actus reus of the offence is committed  
[151] The defendant’s mistaken belief in respect to a set of circumstances is to be  
considered at the time the offence has been committed, which for the defendant  
would be between 31 and 33 minutes after midnight on April 5, 2021, when the  
defendant had arrived by air at Terminal 3 of Toronto Pearson International Airport,  
which is also after the defendant had been questioned by Screening Officer Dyer  
and after the defendant had been told by Dyer about the entry requirements of  
having to book a 3-day prepaid stay at a government-approved hotel and in having  
to undergo a Day 1 COVID-19 molecular (PCR) test at the airport. It is also after  
the defendant had been informed by Screening Officer Dyer of the penal  
consequences for not complying with the two entry requirements, and also where  
a list of government-approved hotels and telephones were made available and  
accessible to the defendant in the same area where Dyer had been interacting with  
the defendant and in which Dyer had been there to assist the defendant and other  
travellers who did not already book a 3-day prepaid stay at a government-approved  
hotel before boarding their flight to Canada to still have the opportunity to book that  
3-day prepaid stay while still at the airport. Moreover, there were also nurses at the  
airport that were available to conduct the Day 1 COVID-19 molecular (PCR) test  
free of charge, and in which the defendant while still at the airport could have  
provided in a reasonably quick and painless fashion a sample that would then be  
sent to a laboratory for testing for COVID-19.  
[152] Accordingly, at the time the offence had been committed between 31 and 33  
minutes after midnight on April 5, 2021, the defendant would have been aware of  
the entry requirements at that point of having to book a 3-day stay at a government-  
approved hotel and in having to undergo a Day 1 COVID-19 molecular (PCR) test  
at the airport and at a time when the defendant had been given the opportunity to  
still comply with all the entry requirements. And, because the defendant could have  
reasonably fulfilled those two additional entry requirements while she was still at  
the airport after having been advised by Screening Officer Dyer about the additional  
entry requirements of booking a 3-day prepaid stay at a government-approved hotel  
and undergoing another COVID-19 molecular (PCR) test at the airport, then the  
defendant’s claim of having a mistaken belief in a set of circumstances would not  
have been objectively reasonable or subjectively honest, in that the defendant  
would have mistakenly believed that she had actually met the entry requirements  
before she had been issued the two Certificates of Offence by Screening Officer  
Dyer.  
95  
[153] In addition, the booking of the 3-day prepaid stay and undergoing the Day 1 test  
would not have been too difficult for the defendant to comply with, nor would it have  
taken an inordinate amount of time or effort to comply with those two specific entry  
requirements while the defendant was still at the airport, and after having been  
advised by Screening Officer Dyer of the additional entry requirements that the  
defendant had to fulfill.  
(c) The first basis of the defendant’s mistake of fact defence  
[154] For the first basis of the defendant’s mistake of fact defence, the defendant  
contends that she had mistakenly believed that she had fulfilled and complied with  
all the necessary entry requirements when she arrived at the Toronto airport on  
April 5, 2020, because she had believed that she only had to have the entry  
requirements of a negative pre-flight COVID-19 molecular (PCR) test and by  
notifying the Minister of Health electronically of her quarantine plan to isolate for 14  
days at her friend’s condominium.  
(i) The defendant had heard rumours about the entry  
requirements of having to book a 3-day prepaid stay at  
a government-approved hotel and of having to undergo  
a Day 1 COVID-19 molecular (PCR) test at the airport  
upon arrival  
[155] In regards to the first basis of the defendant’s mistake of fact defence, even if the  
defendant’s mistaken belief was not considered a mistake of law, but a mistake of  
fact, the defendant had testified that she had heard rumours about the other entry  
requirements of having to book a 3-day prepaid stay at a government-approved  
hotel and in having to undergo a Day 1 COVID-19 molecular (PCR) test at the  
airport, yet the defendant had failed to respond and act reasonably to those rumours  
about the additional entry requirements and make further inquiries on the  
ArriveCAN app or on of a government website to determine if these legal  
requirements were only rumours or legal requirements for entry into Canada. A  
reasonable person in the same circumstances of hearing rumours about those other  
entry requirements would have made further inquiries on government websites to  
verify the rumours about the additional entry requirements into Canada and not to  
simply ignore or dismiss those rumours. Moreover, it would not have been difficult  
to obtain or verify information about the additional entry requirements.  
[156] In addition, the defendant had testified about using the ArriveCAN app and  
searching government websites on the internet on what the entry requirements  
were for returning to Canada after being abroad, so the defendant would have been  
able to easily verify those rumours about the entry requirements of booking a 3-day  
prepaid stay at a government-approved hotel and having to undergo another  
COVID-19 molecular (PCR) test upon arrival at the Toronto airport prior to departing  
Columbia.  
96  
[157] Moreover, the specific entry requirement of having to undergo a Day 1 COVID-19  
molecular (PCR) test upon arrival at the Toronto airport was first implemented and  
effective on January 20, 2021 under Order-In-Council PC #2021-0011 and had  
been extended under Order-In-Council PC#2021-0174 and set to expire on April  
21, 2021 at 11:59 p.m., while the specific entry requirement of having to book a 3-  
day prepaid stay at a government approved hotel was first implemented and  
effective on February 21, 2021 under Order-In-Council PC #2021-0075 and had  
been extended under Order-In-Council PC#2021-0174 and set to expire on April  
21, 2021 at 11:59 p.m., and as such, these entry requirements would have been in  
the public sphere, Canadian websites, and news media for a significant time prior  
to the defendant returning to Canada on April 5, 2021, especially to someone like  
the defendant who had readily available access to Canadian government websites  
and to news media websites when she had been outside of Canada working  
remotely by computer. That period between February 21, 2021 and April 4, 2021  
when the defendant departed from Columbia would have provided sufficient time  
for those particular entry requirements to be announced on Canadian government  
websites and on Canadian news media websites. It is also not the situation where  
either of those two particular entry requirements had come into effect only one or  
two days before the defendant had arrived in Canada by air on April 5, 2021.  
[158] Furthermore, the defendant had been working remotely by computer in both Mexico  
and Columbia, so she would have had access to the internet and to Canadian  
government websites and to news media and there would have been sufficient time  
for the defendant to find out about the two additional entry requirements before  
leaving on her return trip to Canada. The defendant also testified that she had  
checked on Canadian government websites and on the ArriveCAN to find out what  
her entry requirements were for returning to Canada, so if she had been misled by  
any Canadian government website or by the ArriveCAN website on what the legal  
entry requirements were, she did not provide such evidence to support her mistaken  
belief that she had fulfilled all the entry requirements for returning air travellers to  
Canada.  
[159] Ergo, the defendant’s mistake of fact that she believed she had fulfilled the entry  
requirements of a negative COVID-19 molecular (PCR) test within 72 hours of  
boarding the plane for Canada and having a quarantine plan of staying at her  
friend’s condo for 14 days is not objectively reasonable because if she had heard  
rumours about the entry requirement of booking a prepaid 3-day stay at a  
government-approved hotel and of undergoing a Day 1 COVID-19 molecular (PCR)  
test at the airport, then she ought to have made a reasonable inquiry into the truth  
of those other entry requirements for her return to Canada with searches on  
Canadian government websites and on Canadian news media, which would have  
likely revealed those other entry requirements in addition to the two that she  
believed she only had to comply with.  
97  
(ii) The defendant had to complete the “Traveller Contact  
Information Form” which contained a question asking  
for the booking reference number for the 3-day prepaid  
stay at a government-approved hotel  
[160] In addition, prior to the defendant speaking to Screening Officer Dyer, the defendant  
had to also complete the “Traveller Contact Information Form” (Exhibit #1) which  
had asked the defendant for details about having a valid registration at a  
government-approved hotel if she did not test positive for COVID-19 on a sample  
collected between 14 and 90 days before the scheduled departure of the  
defendant’s flight and to provide the booking reference number for that 3-day  
prepaid stay if the defendant did book the 3-day prepaid stay at a government-  
approved hotel. That question itself on the “Traveller Contact Information Form”  
about the defendant having to provide the booking reference number for that 3-day  
prepaid stay would have made the defendant aware of that additional entry  
requirement and would also contradict the defendant’s contention that she had not  
been aware of that entry requirement to book a 3-day prepaid stay at a government-  
approved hotel before she had been questioned by Screening Officer Dyer on April  
5, 2021, between 00:31 a.m. and 00.33 a.m.  
(iii) The defendant has not proven on a balance of  
probabilities that the mistaken belief that she had  
complied with the entry requirements is both  
reasonable and honest  
[161] As such, the defendant has not proven on a balance of probabilities that the  
defendant’s mistaken belief that she had fulfilled the entry requirements is both  
reasonable and honest, as the defendant would have been made aware of the 2  
additional entry requirements by Screening Officer Dyer and that the defendant  
could have still complied with those 2 entry requirements of booking a 3-day prepaid  
stay and undergoing another COVID-19 molecular (PCR) test at the airport without  
too much difficulty while the defendant was still at the airport and before the  
defendant had been issued the 2 Certificates of Offence under the Quarantine Act  
by Screening Officer Dyer.  
[162] Ergo, as the defendant has not proven on a balance of probabilities that she had  
taken all reasonable care to avoid committing the offence or proving on a balance  
of probabilities the first basis of her defence of a mistake of fact of mistakenly  
believing that she had complied with the entry requirements.  
(d) The second basis of the defendant’s mistake of fact defence  
[163] And, for the “second basis” of the defendant’s mistake of fact defence, the  
defendant said that she had believed that that her Charter rights, especially her s.  
6 right 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  
98  
undergo a Day 1 COVID-19 molecular (PCR) test at the airport upon her arrival,  
especially when she already had obtained a negative COVID-19 molecular (PCR)  
test before the scheduled departure of her flight for Canada. The defendant’s belief  
had been based on what she had read on the internet when she was on her layover  
at the Miami airport.  
[164] However, merely reading someone’s opinion on the internet that complying with the  
two entry requirements would violate the Charter, especially one that is not made  
by judicial determination, is not evidence that the second basis of the defendant’s  
mistake of fact defence that is claimed by the defendant is both reasonable and  
honest.  
[165] But more importantly, in respect to the s. 6 Charter right that the defendant had  
alluded to for the second basis of her mistake of fact defence, Crampton, C.J. of  
the Federal Court in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622,  
had held on June 18, 2021, which is about 2 months after the defendant was  
charged with offences under the Quarantine Act, that the entry requirement of an  
air traveller returning to Canada from aboard having to book a 3-day prepaid stay  
at a government-approved hotel did not infringe s. 6(1) of the Charter of a Canadian  
citizen’s right to enter, remain in and leave Canada.  
(i) Charter and constitutional challenges were also brought  
against the mandatory entry requirements for travellers  
entering Canada who had been abroad in Spencer v.  
Canada (Minister of Health), [2021] F.C.J. No. 622 (F.C.)  
[166] A Charter and constitutional challenge to the entry requirements or measures under  
Emergency Orders issued under s. 58 of the Quarantine Act, such as the entry  
requirement to book a 3-day prepaid stay at a government-approved hotel and to stay  
there for 3 days for returning travellers who were asymptomatic and for travellers to  
quarantine at a designated quarantine facility for 14 days were made to the Federal  
Court in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622 (F.C.).  
(ii) Does the entry requirement of booking and prepaying  
for a 3 day stay at a government-approved hotel and in  
having to undergo the Day 1 COVID-19 molecular (PCR)  
test at the airport violate the Charter of Rights?  
[167] Crampton C.J. of the Federal Court in Spencer v. Canada (Minister of Health),  
[2021] F.C.J. No. 622, had to consider several applications contending that the  
entry requirements and measures for returning travellers had violated the Charter  
or that the entry requirements and measures were unconstitutional. A group of  
applicants who had returned to Canada from abroad had claimed that the entry  
requirements or measures imposed on them had infringed on ss. 6(1), 7, 8, 9, 10(b),  
11(d), 11(e), and 12 of the Charter and s. 1(a) of the Canadian Bill of Rights and  
99  
that the entry requirements were ultra vires of subsection 58(1) of the Quarantine  
Act and ultra vires of Parliament's authority.  
(a) The mandatory entry requirements and  
measures do not violate the right of a Canadian  
citizen to enter, remain in and leave Canada that  
is guaranteed under s. 6 of the Charter  
[168] At para. 67, in Spencer v. Canada (Minister of Health), the applicants had  
contended that the impugned measures or entry requirements had violated s. 6(1)  
of the Charter, which guarantees the ability of Canadians to move in and out of the  
country based on their own choice, had been taken away from Canadians, as the  
decisions of Canadians to travel or not and when to travel has been informed by  
those measures or entry requirements. In addition, the applicants had argued that  
the entry requirement of having to stay at a government-approved hotel constitutes  
an arbitrary impediment to the right of returning air travellers to freely enter Canada.  
Although the applicants did acknowledge that there may be at times a pressing  
need to detain or hold an individual at the border based on suspicions of criminal  
activity, improper credentials, questionable purposes of entry, or even suspicions  
of communicable disease. However, the applicants contended that no such need  
existed for persons who have not been infected with COVID-19, who have not had  
any contact with anyone infected with the virus, who have tested negative prior to  
departing for Canada, and who possess the means and ability to self-quarantine for  
14 days at home [emphasis is mine below]:  
Mr. Colvin maintains that the requirement to stay at a GAA constitutes an arbitrary  
impediment to the right of returning air travellers to freely enter Canada. He  
acknowledges that there may at times be a pressing need to detain or hold an  
individual at the border based on "suspicions of criminal activity, improper  
credentials, questionable purposes of entry, or even suspicions of communicable  
disease." However, he asserts that no such need exists for persons such as  
himself, who have not been infected with COVID-19, have not had any contact with  
anyone infected with the virus, have tested negative prior to departing for Canada,  
and possess the means and ability to self-quarantine for 14 days at home.  
[169] Section 6 of the Charter states:  
6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada.  
(2) Every citizen of Canada and every person who has the status of a permanent  
resident of Canada has the right:  
to move to and take up residence in any province; and to pursue the gaining of  
a livelihood in any province.  
(3) The rights specified in section (2) are subject to:  
100  
any laws or practices of general application in force in a province other than those  
that discriminate among persons primarily on the basis of province of present or  
previous residence; and  
any laws providing for reasonable residency requirements as a qualification for  
the receipt of publicly provided social services.  
(4) Sections (2) and (3) do not preclude any law, program or activity that has as its  
object the amelioration in a province of conditions of individuals in that province  
who are socially or economically disadvantaged if the rate of employment in that  
province is below the rate of employment in Canada.  
[170] However, at paras. 68 to 71, 77 and 80 in Spencer v. Canada (Minister of Health),  
Crampton C.J. disagreed with the applicant’s contention in respect to s. 6(1) of the  
Charter being infringed by the entry requirements or measures and reiterated that  
the central thrust of s. 6(1) is against exile and banishment for which the purpose  
is the exclusion of membership in the national community. Moreover, Crampton  
C.J. held that the impugned entry requirements or measures do not encroach upon  
returning air travellers' membership in Canada's national community, since those  
travellers are not denied entry to Canada when they land at one of the four airports  
where international flights currently are permitted to arrive. Rather, Crampton C.J.  
reasoned that the returning air travellers are required to briefly quarantine or isolate  
within Canada, even though the specific location in which they must isolate is  
different from where returning land travellers may isolate, it is still within Canada.  
Accordingly, Crampton C.J. determined that the Applicants have failed to discharge  
their burden of demonstrating that the impugned entry requirements or measures  
violate s. 6(1) of the Charter [emphasis is mine below]:  
I disagree.  
I recognize that an expansive approach to subsection 6(1) is consistent with the  
fact that it is exempt from the legislative override in section 33 of the Charter and  
is not subject to any limitations, such as those set forth in subsections 6(3) and  
6(4): Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC  
47 at para 28 [Divito]. I further recognize that "rights under the Charter must be  
interpreted generously so as to fulfill its purpose of securing for the individual the  
full benefit of the Charter's protections": United States of America v Cotroni, [1989]  
1 SCR 1469 at 1480 [Cotroni]. At the same time, "it is important not to overshoot  
the actual purpose of the right or freedom in question": R v Big M Drug Mart Ltd,  
[1985] 1 SCR 295 at 344.  
In Cotroni, above, at 1482, the Supreme Court of Canada held that "the central  
thrust of s. 6(1) is against exile and banishment, the purpose of which is the  
exclusion of membership in the national community."  
The Impugned Measures are not in any way inconsistent with this central thrust or  
purpose. Put differently, they do not encroach upon returning air travellers'  
membership in Canada's national community. Those travellers are not denied  
101  
entry to Canada when they land at one of the four airports where international  
flights currently are permitted to arrive. Rather, they are required to briefly  
quarantine or isolate within Canada. Although the specific location in which they  
must isolate is different from where returning land travellers may isolate, it is still  
within Canada.  
I do not accept Mr. Colvin's assertion that the Impugned Measures are arbitrary  
because they indiscriminately target every air traveller. I am very sympathetic to  
Mr. Colvin's evident sense of aggrievement at being treated differently from  
returning land travellers. However, the basis for treating air travellers differently  
from land travellers is not arbitrary. It is rooted in scientific data, which I accept,  
indicating that a higher percentage of asymptomatic returning air travellers (1.7%)  
test positive for COVID-19 than is the case for asymptomatic returning land  
travellers (0.3%): Transcript of the cross-examination of Ms. Kimby Barton,  
conducted April 16, 2021, at p. 26:7-12 [Barton Transcript]; Transcript of the cross-  
examination of Dr. Rachel Rodin, conducted April 15, 2021, at p. 37:4-8 [Rodin  
Transcript].  
In summary, for the reasons set forth above, the Applicants have failed to  
discharge their burden of demonstrating that the Impugned Measures violate  
subsection 6(1) of the Charter.  
(b) The mandatory entry requirements or measures  
do not violate the right to life, liberty and  
security of the person and the right not to be  
deprived thereof except in accordance with the  
principles of fundamental justice rights under s.  
7 of the Charter  
[171] A challenge was also brought under s. 7 of the Charter in Spencer v. Canada  
(Minister of Health), in which the Applicants had contended that the requirement to  
stay in a government-approved hotel pending receipt of the results of the Day 1  
Test constitutes an infringement of their right to liberty and that this particular entry  
requirement constitutes a violation of their right to security of the person. In  
addition, the Applicants contend that their interests protected by the right to security  
of the person are alleged to be engaged due to the risk of exposure to the SARS  
CoV-2 virus at the government-approved hotel or at the designated quarantine  
facilities, the risk of assault, and the "severe psychological harm" caused by the  
prospect of staying at a government-approved hotel.  
[172] Section 7 of the Charter states:  
7. Everyone has the right to life, liberty and security of the person and the right  
not to be deprived thereof except in accordance with the principles of  
fundamental justice.  
102  
[173] In Spencer v. Canada (Minister of Health), at paras. 82 to 105, 117 to 121, 123 to  
126, and 131 to 137, Crampton C.J. held that he fully understood the Applicants'  
perception that it was unfair that the entry requirements or impugned measures,  
particularly the requirement to stay at a government-approved hotel at their own  
cost, were targeted solely at returning air travellers. However, Crampton C.J. held  
it is not unreasonable to require those who voluntarily assume travel-related risks  
to pay for costs associated with their port-of-entry quarantine, especially when they  
incur those risks in the face of repeated government advisories and even  
exhortations from their Prime Minister to avoid non-essential travel. In addition,  
Crampton C.J. held that the alleged violations did not engage the Applicants' right  
to security of the person. Moreover, Crampton C.J. held that evidence of the  
physical risk faced by the Applicants and the psychological harm that they  
experienced falls short of what is required to engage section 7, as there is no  
evidence that any of the Applicants were physically harmed or infected by COVID-  
19 at a government-approved hotel or a designated quarantine facility. In respect  
to whether the entry requirements for a returning air traveller to stay at government-  
approved hotel for 3 days or to stay at a designated quarantine facility infringed the  
right to liberty, Crampton C.J. held that these entry requirements were not arbitrary  
as there was a valid basis for imposing special requirements on returning air  
travellers, since air travellers had a higher percentage (1.7%) of asymptomatic air  
travellers that tested positive for COVID-19 than is the case for asymptomatic land  
travellers (0.3%) In addition, Crampton C.J. held that the impugned entry  
requirements were not overbroad nor grossly disproportionate to their object.  
Accordingly, Crampton C.J. held that the Applicants' right to security of the person  
is not engaged by the impugned entry requirements or measures. Moreover,  
Crampton C.J. reasoned that even though the Applicants’ right to liberty is engaged,  
the deprivation of that right was in accordance with the principles of fundamental  
justice, and as such the impugned entry requirements and measures do not violate  
section 7 of the Charter [emphasis is mine below]:  
To demonstrate a violation of section 7, a claimant must establish two things: (i)  
that the law in question infringes their right to life, liberty or security of the person;  
and (ii) that the infringement is not in accordance with the principles of fundamental  
justice. This second requirement involves an evaluation of whether the law is  
arbitrary, overbroad or has consequences that are grossly disproportionate to their  
object: Carter v Canada (Attorney General), 2015 SCC 5 at paras 55 and 72  
[Carter].  
All of the Applicants allege that the requirement to stay in a GAA pending receipt  
of the results of the Day 1 Test constitutes an infringement of their right to liberty.  
The Spencer-Duesing Applicants and Mr. Colvin also claim that this requirement  
constitutes a violation of their right to security of the person. I will deal first with the  
latter claim.  
(a) Security of the Person  
103  
The interests protected by the right to security of the person are alleged to be  
engaged due to the risk of exposure to the SARS CoV-2 virus at the GAA or DQF  
facilities, the risk of assault, and the "severe psychological harm" caused by the  
prospect of staying at a GAA.  
Regarding the risk of exposure to the virus, the Spencer-Duesing Applicants rely  
on "reports that have circulated [that] clearly indicate congregations [in GAA  
facilities] in a way that is inconsistent with acceptable social distancing rules." They  
further note that Mr. Bexte, who has not alleged an infringement of his right to  
security of the person, stated that he was exposed to 14 individuals while at a GAA  
and was placed in close contact (within six feet) of others while in the custody of  
hotel staff. In addition, they referred to evidence of outbreaks of COVID-19 among  
staff members at GAA facilities. Mr. Colvin adds that his right to security of the  
person was breached "by potentially exposing him to 'aerosol' COVID-19 virus at  
GAA facilities."  
With respect to assaults, the Spencer-Duesing Applicants rely on a single incident  
of sexual assault at a DQF facility.  
Insofar as psychological harm is concerned, some of those same Applicants allege  
that they experienced severe stress and anxiety over the "oppressive government  
measures". Ms. Mathis adds that she was traumatized when she was "taken to a  
secret location" and her husband was not able to find out where she had been  
brought. Ms. Thompson, who returned to Canada before the Impugned Measures  
went into effect, states that the "thought of being imprisoned by the federal  
government had a very negative impact on [her] mental health."  
I can certainly understand the concerns identified above and how they may well  
have caused stress and anxiety to the Applicants in question. It is not difficult to  
readily apprehend how the prospect of having to stay at a GAA or a DQF, and then  
actually being at such a facility, would cause feelings of stress and anxiety in some  
people. However, I find that the alleged violations did not engage the Applicants'  
right to security of the person.  
That right "encompasses 'a notion of personal autonomy involving ... control over  
one's bodily integrity free from state interference' ... and is engaged by any state  
interference with an individual's physical or psychological integrity, including any  
state action that causes physical or serious psychological suffering." Carter,  
above, at para 64.  
The evidence of the physical risk faced by the Applicants and the psychological  
harm that they experienced falls short of what is required to engage section 7.  
There is no evidence that any of the Applicants was physically harmed or infected  
by COVID-19 at a GAA or a DQF. Indeed, Mr. Spowart's unchallenged evidence  
is that while there have been some instances of community-based COVID-19  
spread among staff at GAAs, there have not been any COVID-19 cases linked to  
traveller transmission in GAAs or DQFs. For greater certainty, there does not  
appear to be any evidence before the Court that any returning air traveller has ever  
been infected by COVID-19 at such a facility. Mr. Spowart's evidence, which I  
accept, is that a broad range of measures and protocols have been implemented  
104  
at GAAs and DQFs, as well as in relation to the transportation to those facilities, to  
help ensure the safety of travellers. In the absence of any evidence that any air  
traveller has ever been infected at such a facility, it is reasonable to infer that the  
risks of contracting COVID-19 at a GAA or a DQF are not significant.  
I will simply add that GAAs, which were the principal focus of the Applicants'  
submissions, are for travellers who are asymptomatic, have met their pre-  
departure COVID-19 test requirement, have a suitable post-GAA quarantine plan,  
and are not or have not been in close contact with persons who are confirmed or  
probable cases of COVID-19.  
The fact that one person who is not a party to this Application is reported to have  
been sexually assaulted at a DQF is not sufficient to engage the Applicants' right  
to security of the person under section 7. I will observe in passing that rooms at  
GAAs and DQFs are equipped with locks and security personnel are present  
throughout those facilities: Affidavit of Michael Spowart, affirmed March 31, 2021,  
at paras 60-63 [Spowart Affidavit].  
Turning to the psychological harm alleged by the Applicants, the Respondent  
accepts that the requirement to stay at a GAA could cause some stress and  
anxiety. However, the Respondent maintains that the evidence adduced by the  
Applicants does not rise to the level required to engage their right to security of the  
person under section 7. I agree.  
In New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3  
SCR 46 at paras 59-60 [G(J)], the level of psychological harm required in this  
regard was described as follows:  
59.  
... It is clear that the right to security of the person does not protect the  
individual from the ordinary stresses and anxieties that a person of reasonable  
sensibility would suffer as a result of government action. If the right were  
interpreted with such broad sweep, countless government initiatives could be  
challenged on the ground that they infringe the right to security of the person,  
massively expanding the scope of judicial review, and, in the process, trivializing  
what it means for a right to be constitutionally protected.  
60.  
For a restriction of security of the person to be made out, then, the  
impugned state action must have a serious and profound effect on a person's  
psychological integrity. The effects of the state interference must be assessed  
objectively, with a view to their impact on the psychological integrity of a person of  
reasonable sensibility. This need not rise to the level of nervous shock or  
psychiatric illness, but must be greater than ordinary stress or anxiety. (Emphasis  
added.)  
Cases in which the type of psychological harm required to meet this threshold has  
been found to have been met have included the harm which was brought on by:  
state removal of a child from parental custody (G(J), above, at para 61); preventing  
an individual from terminating their life at the time of their choosing (Rodriquez v  
British Columbia (Attorney General), [1993] 3 SCR 519 at 588-89); restrictions on  
obtaining a therapeutic abortion which increased the risk of complications and  
mortality (R v Morgentaler, [1988] 1 SCR 30 at 90-91); and delays in obtaining  
105  
critical care (Chaoulli v Quebec (Attorney General), 2005 SCC 35 at paras 116-  
124).  
In my view, the foregoing circumstances and the psychological harm experienced  
by the individuals in question are of a qualitatively greater order of magnitude  
relative to the circumstances at issue in these Applications, and the harm the  
Applicants can objectively be understood to have experienced.  
Accordingly, and for the additional reasons provided above, I conclude that the  
Applicants have not demonstrated that their right to security of the person under  
section 7 of the Charter has been or would likely be engaged by the Impugned  
Measures.  
(b) Right to Liberty  
The Applicants submit that the Impugned Measures contravened their right to  
liberty by compelling them, under the threat of fine and/or imprisonment, to stay in  
a GAA while they awaited the results of their Day 1 Test.  
The Respondent accepts that the requirement to stay at a GAA or a DQF facility  
engaged the Applicants' liberty interests. However, in doing so, the Respondent  
observes that the extent of the deprivation is markedly less substantial than the  
deprivations of liberty that were at issue in the cases upon which the Applicants  
rely.  
I agree. None of the Applicants challenge the validity of the mandatory 14-day  
quarantine requirement for returning travellers. Rather, they simply challenge the  
requirement to spend the initial 24-72 hours of that period at a GAA or a DQF while  
awaiting the results of their Day 1 Test. In my view, this falls towards the lower end  
of the spectrum of encroachments on an individual's liberty interests that are  
contemplated by section 7.  
Nevertheless, the requirement to stay at a GAA or a DQF for 24-72 hours plainly  
violated the liberty interests of those Applicants who were required to stay there  
and will engage the liberty interests of the two Applicants who remain outside  
Canada.  
Accordingly, it is necessary to move to the second stage of the analysis and assess  
whether the infringement of the Applicants' liberty interest was or will be in  
accordance with the principles of fundamental justice. As noted at paragraph 82  
above, this involves an assessment of whether the Impugned Measures are  
arbitrary, overbroad or have consequences that are grossly disproportionate to  
their object. These three principles "compare the rights infringement caused by the  
law with the objective or the law, not with the law's effectiveness": Canada  
(Attorney General) v Bedford, 2013 SCC 72 at para 123 [Bedford].  
(i) Arbitrariness  
The RNN [Rebel News Networks] Applicants submit that the infringement of their  
right to liberty is arbitrary for two reasons. First, they maintain that it is arbitrary to  
106  
require an air traveller to stay in a GAA, while not requiring a land traveller coming  
from the same location to do so. The Spencer-Duesing Applicants share this  
position.  
I disagree. There is cogent evidence supporting the AIC's decision to target  
returning air travellers with special measures, including the specific requirement to  
stay in a GAA or a DQF.  
The evidence establishes a valid basis for imposing special requirements on  
returning air travellers. As previously noted, Dr. Rodin and Ms. Barton provided  
evidence, which I accept, that a higher percentage (1.7%) of asymptomatic air  
travellers test positive for COVID-19 than is the case for asymptomatic land  
travellers (0.3%). Moreover, Dr. Poliquin stated that "based on the information that  
the NML currently has, all P.1 variant of concern cases have arrived in Canada via  
air travellers and the variant has been contained to the provinces of arrival. …  
It bears underscoring here that what is relevant is the objective of the Impugned  
Measures, not their actual effectiveness: Bedford, above. A law will only be found  
to be arbitrary "where there is no rational connection between the object of the law  
and the limit it imposes on life, liberty or the security of the person": Carter, above,  
at para 83, citing Bedford, above, at para 111. Accordingly, all that is required to  
demonstrate that the Impugned Measures are not arbitrary is the existence of  
some link between them and the objective(s) they were intended to achieve.  
The stated objective of the impugned OICs, as discussed above, is "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":  
February Order, Explanatory Notes, above, p. 720 Respondent's Record at R84.  
This objective is also reflected in the passage of Dr. Poliquin's Affidavit quoted at  
paragraph 110 above.  
As noted above, the rationales for the specific requirement to quarantine in a GAA  
were (i) individuals who know they have tested positive are likely to modify their  
behaviour in a manner that reduces the risk of transmitting COVID-19 to others in  
their home and in the broader community, (ii) preventing people from spreading  
the virus to others when travelling on public transportation to their homes or other  
suitable place of quarantine, (iii) preventing infected travellers from infecting others  
in their home or in the community during the period that they are in a GAA; and (iv)  
facilitating early identification and isolation of asymptomatic air travellers who are  
infected.  
In my view, these rationales provide the requisite rational connection between the  
objective of the Impugned Measures, including the specific requirement to stay at  
a GAA, and the limits imposed on the Applicants' right to liberty.  
I recognize that this objective may well have been better achieved in various ways.  
Of course, these would include reducing the number of exemptions from the  
Impugned Measures, requiring persons who have tested positive to isolate at a  
DQF for 14 days, and requiring asymptomatic travellers to stay at a GAA for a  
107  
longer period of time. I also fully understand the Applicants' perception that it was  
unfair that the Impugned Measures, particularly the requirement to stay at a GAA  
at their own cost, were targeted solely at returning air travellers. However, it is not  
unreasonable to require those who voluntarily assume travel-related risks to pay  
for costs associated with their port-of-entry quarantine, especially when they incur  
those risks in the face of repeated government advisories and even exhortations  
from their Prime Minister to avoid non-essential travel: Barton Affidavit, above, at  
paras 27-28.  
(ii) Overbreadth  
A measure will be deemed overboard when it "takes away rights in a way that  
generally support the object of the law, [but] goes too far by denying the rights of  
some individuals in a way that bears no relation to the object": Carter, above, at  
para 85. However, "[t]he question is not whether Parliament has chosen the least  
restrictive means, but whether the chosen means infringe life, liberty or security of  
the person in a way that has no connection with the mischief contemplated by the  
legislature": Carter, above. Where there is a rational connection between the effect  
on the individual(s) in question and the measure's purpose, it will not be overbroad:  
Bedford, above, at para 113.  
The Applicants assert that the Impugned Measures, particularly the requirement  
to stay at a GAA or a DQF, are overbroad for several reasons. Specifically, they  
maintain that those measures unnecessarily apply to individuals who (i) are  
asymptomatic, recently tested negative for COVID-19, and have not been in recent  
contact with an infected individual; (ii) have their own private vehicle (and therefore  
do not require public transportation), and (iii) live alone, or have travelled with their  
entire household. In addition, they assert that the requirement to stay at a GAA or  
a DQF is unnecessary given the stricter requirements that the Impugned Measures  
impose on suitable quarantine plans.  
I disagree. There is a rational connection between the individuals described above,  
including those who have a suitable quarantine or isolation plan, and the  
requirement to stay at a GAA or a DQF. In brief, it is reasonable to believe, as Ms.  
Barton explained, that individuals who know they have tested positive are likely to  
modify their behaviour in a manner that reduces the risk of transmitting COVID-19  
to others in their home and in the broader community. This would apply both after  
such individuals have arrived home from the airport and during their drive from the  
airport. (One would hope and expect that such persons would be less inclined to  
stop along the way where other persons are present.) In addition, the GAA stay  
requirement prevents asymptomatic infected individuals from transmitting the  
COVID-19 virus to others in their home or in the community during the period that  
they are in a GAA or a DQF. The concern about such transmission is based on the  
evidence that even travellers who have tested positive and were supposed to be  
isolating at home or at another suitable location have infected others: see  
paragraph 111 above.  
Moreover, the requirement to stay at a GAA or a DQF facilitates early identification  
and isolation of asymptomatic air travellers who are infected. Among other things,  
108  
this permits border officials to conduct a more detailed review of the  
quarantine/isolation plans of travellers who have tested positive. This not only  
provides an opportunity to reinforce those plans, but also to identify infected  
individuals whose isolation plans are not suitable. Indeed, this process also  
provides an opportunity for infected travellers to decide to isolate at a DQF, rather  
than returning to their home or other suitable place of quarantine, and potentially  
infecting others.  
In summary, the Applicants' various assertions of overbreadth regarding the  
Impugned Measures are without merit. For the reasons set forth above, there is a  
rational connection between the objective of those measures and the effects on  
the individuals who the Applicants suggest ought to have been exempted from  
those measures. I will add in passing that I am sympathetic to Ms. Barton's view  
that "it's very difficult to put in place border measures that include every single  
conceivable outcome and means and mechanism of travel": Barton Transcript,  
above, at p. 58.  
(iii)Gross Disproportionality  
This aspect of the analysis under section 7 "compares the law's purpose 'taken at  
face value' with its negative effects on the rights of the claimant, and asks if this  
impact is completely out of sync with the object of the law": Carter, above, at para  
89, quoting Bedford, above, at para 125. This assessment contemplates a high  
bar to establish gross disproportionality: Carter, above, at para 89. In brief, the  
adverse impact on the individual must be "so severe that it violates our  
fundamental norms": Bedford, above, at para 109. As a result, the rule against  
disproportionality is only applied "in extreme cases where the seriousness of the  
deprivation is totally out of sync with the objective of the measure": Bedford, above,  
at para 120.  
The RNN Applicants assert that the Impugned Measures are grossly  
disproportionate because they apply to all air travellers, despite the fact that  
approximately 98% of them have no symptoms, have not tested positive and will  
not test positive for COVID-19. They also maintain that they are grossly  
disproportionate because there are no exceptions for travellers with private  
transportation who have a suitable quarantine plan and pose no significant risk of  
further spreading COVID-19 during the isolation period. They add that those  
measures are grossly disproportionate because they have little effect on the  
spread of COVID-19, due to the fact that they do not apply to many other travellers,  
including those entering Canada by land and exempted air travellers. The other  
Applicants share some of these concerns.  
I disagree. Given that there is no way to know in advance which asymptomatic air  
travellers are infected and incubating COVID-19 at the time they arrive in Canada,  
there is a rational basis to test them all and to require that they stay in a GAA or a  
DQF while they await their Day 1 Test result. These measures, and their impact  
on air travellers, are not "completely out of sync" with the objective of "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":  
February Order, Explanatory Notes, above, p. 720.  
109  
In particular, the brief (24 -72 hour) deprivation of liberty is not completely out of  
sync with this objective, or with the positive effects identified by the Respondent's  
affiants (see paragraphs 109-112 above). While that deprivation of liberty is not  
trivial, it is not so significant as to be disproportionate, let alone grossly  
disproportionate, to the objective and the rationales underlying the Impugned  
Measures. The evidence also indicates that reasonable efforts are made to  
accommodate those who are required to stay at GAAs, for example with respect  
to their dietary preferences, frequency of fresh-air breaks, and desire to have a pet  
in their room. In addition, families travelling together are placed in adjoining rooms.  
Accordingly, the Impugned Measures, do not violate the principles of fundamental  
justice on grounds of gross disproportionality.  
(iv) Section 7 - Conclusion  
For the reasons set forth above, I have concluded that the Applicants' right to  
security of the person is not engaged by the Impugned Measures. In addition,  
although their right to liberty is engaged, the deprivation of that right was in  
accordance with the principles of fundamental justice. Accordingly, the Impugned  
Measures do not violate section 7 of the Charter.  
(c) The mandatory entry requirements and  
measures do not violate the right to be secure  
against unreasonable search or seizure that is  
guaranteed under s. 8 of the Charter  
[174] The infringement of s. 8 of the Charter was also raised in Spencer v. Canada  
(Minister of Health), [2021] F.C.J. No. 622 (F.C.), in which the Applicants contended  
that the requirement of travellers having to pay for their booking at the government-  
approved hotels constitutes an unreasonable seizure within the meaning of section  
8 of the Charter.  
[175] Section 8 of the Charter states:  
8. Everyone has the right to be secure against unreasonable search or seizure.  
[176] Crampton C.J. in Spencer v. Canada (Minister of Health), at paras. 138 to 149, held  
that the requirement to prepay for the 3-day stay at a government-approved hotel  
did not infringe s. 8 of the Charter, since the requirement to pay for a booking does  
not engage the Applicants' interests under s. 8. Crampton C.J. had reasoned that  
arriving air travellers have no reasonable expectation of privacy in the money they  
are required to pay in order to book a stay at a government-approved hotel.  
Moreover, Crampton C.J. indicated that the Applicants appeared to be primarily  
concerned about the fact of having to pay for the government-approved hotel, which  
adds insult to the requirement to stay at a government-approved hotel, which the  
110  
Applicants resolutely oppose. When viewed in this light, Crampton C.J. noted that  
the Applicants’ claim appears to be little more than a claim for property rights in  
their money, which is something that "was deliberately not included in the Charter":  
[emphasis is mine below]:  
(3) Section 8  
The RNN Applicants submit that the requirement that non-exempt travellers pay for  
their booking at the GAA constitutes an unreasonable seizure within the meaning of  
section 8 of the Charter. In support of this submission, they maintain that a seizure  
within the meaning of section 8 need not be accompanied by a search, and occurs  
where there is "the taking hold, by a public authority of a [...] thing belonging to a  
person against that person's will."  
This is an incomplete definition. When the scope of section 8 is properly defined, it  
becomes readily apparent that the RNN Applicants' interests under that provision are  
not engaged.  
Section 8 states: "Everyone has the right to be secure against unreasonable search  
or seizure."  
A "seizure" in this context is considered to constitute "the taking of a thing from a  
person by a public official without that person's consent": R v Reeves, 2018 SCC 56  
at para 13, citing R v Dyment, [1988] 2 SCR 417 at 431 [Reeves].  
However, section 8 is not engaged unless "the claimant has a reasonable expectation  
of privacy in the place or item that is inspected or taken by the state." Reeves, above,  
at para 12, citing R v Cole, 2012 SCC 53 at paras 34 and 36 [Cole]. Moreover, this  
expectation of privacy must "[occur] in the context of administrative or criminal  
investigation": Quebec (Attorney General) v Laroche, 2002 SCC 72 at para 53, quoting  
S.C. Hutchison, J.C. Morton and M.P. Bury, Search and Seizure Law in Canada  
(Toronto: Carswell, 1993) (loose-leaf updated 2002, release 2), at pp. 2-5.  
To determine whether a claimant has such an expectation of privacy, courts are  
required to examine "the totality of the circumstances": Reeves, above, at para 12.  
The objective reasonableness of a person's privacy expectations will vary according  
to whether the search or seizure occurs in the criminal context rather than in an  
administrative or regulatory context; intrusions by the state that constitute search or  
seizure in the criminal context may be neither in an administrative context: X (Re),  
2017 FC 1047 at para 123.  
If section 8 is engaged, the court must then determine whether the seizure was  
reasonable: Reeves, above, at para 14, citing R v Edwards, [1996] 1 SCR 128 at paras  
31 and 45(5).  
A search or seizure is reasonable "if it is authorized by law, if the law itself is  
reasonable and if the manner in which the search [or seizure] was carried out is  
reasonable": Reeves, above, at para 14, citing R v Collins, [1987] 1 SCR 265 at 278.  
111  
Having regard to the foregoing, it is evident that the requirement to pay for a booking  
at a GAA does not engage the RNN Applicants' interests under section 8.  
I have serious doubts as to whether that requirement constitutes "the taking of a thing  
from a person by a public official without that person's consent," as understood in the  
jurisprudence under section 8. However, it is not necessary to dwell on this issue as it  
is readily apparent from the "totality of the circumstances" that arriving air travellers  
have no reasonable expectation of privacy in the money they are required to pay in  
order to book a stay at a GAA. They have not suggested otherwise. Rather, they  
appear to be primarily concerned about the fact of having to pay for the GAA, which  
adds insult to the requirement to stay at a GAA -- something they resolutely oppose.  
When viewed in this light, their claim appears to be little more than a claim for property  
rights in their money -- something that "was deliberately not included in the Charter":  
Laroche, above, at para 52.  
Moreover, the circumstances in which air travellers are required to stay at a GAA or a  
DQF -- namely, to await the results of their Day 1 Test -- plainly do not constitute "an  
administrative or criminal investigation." Once again, the RNN Applicants have not  
suggested otherwise.  
Given that the RNN Applicants have not met their burden of establishing that their  
rights under section 8 have been engaged, it is not necessary to consider whether the  
alleged "seizure" of their money was reasonable.  
(d) The mandatory entry requirements or measures  
do not violate the right not to be arbitrarily  
detained or imprisoned that is guaranteed  
under s. 9 of the Charter  
[177] The infringement of s. 9 of the Charter was also raised in Spencer v. Canada  
(Minister of Health), in which the Applicants had submitted that the entry  
requirements, particularly the requirement to stay at a government-approved hotel  
and remain in their room under threat of a substantial fine and/or imprisonment, is  
a form of detention contemplated by s. 9.  
[178] Section 9 of the Charter states:  
9. Everyone has the right not to be arbitrarily detained or imprisoned.  
[179] Crampton C.J. in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622  
(F.C.), at paras. 150 to 157, 162 to 168, 172, and 179 to 180, held that the  
requirement to stay at a government-approved hotel constitutes a "detention" within  
the meaning of s. 9. However, Crampton C.J. reasoned that such detention is not  
"arbitrary" and as such there is no infringement of s. 9. Crampton concluded that  
the manner in which the detention is carried out is reasonable, since air travellers  
make their own reservations at the government-approved hotel, they may drive their  
112  
own vehicle there, and they check in as they would at any other hotel, and for those  
staying at a government-approved hotel or a designated quarantine facility that can  
also lock their rooms if they so choose, and there is no evidence to suggest that  
anyone is physically forced to go to their room. But more importantly, Crampton  
C.J. noted that the air traveller may check out of the government-approved hotel or  
the designated quarantine facility soon after receiving their Day 1 Test results  
[emphasis is mine below]:  
(4) Section 9  
(a) Applicable Legal Principles  
Section 9 of the Charter states: "Everyone has the right not to be arbitrarily detained  
or imprisoned."  
The purpose of section 9 is to "protect individual liberty against unjustified state  
interference. Its protections limit the state's ability to impose intimidating and coercive  
pressure on citizens without adequate justification": R v Le, 2019 SCC 34 at para 25  
[Le].  
The section 9 analysis proceeds in two steps. First, the court must assess whether  
there was a detention. If it reaches an affirmative conclusion in this regard, it must then  
proceed to assess whether the detention was arbitrary: Le, above, at para 124.  
A "detention" pursuant to section 9 requires "significant physical or psychological  
restraint": Le, above, at para 27, citing R v Mann, 2004 SCC 52 at para 19; R v Hufsky,  
[1988] 1 SCR 621 at 631-632 [Hufsky]; R v Grant, 2009 SCC 32 at paras 28-29 [Grant].  
It will also occur where there is "a restraint of liberty other than arrest in which a person  
may reasonably require the assistance of counsel but might be prevented or impeded  
from retaining and instructing counsel without delay but for the constitutional  
guarantee": R v Therens, [1985] 1 SCR 613 at 644 [Therens]. Ultimately, a "contextual  
analysis" is required: R v Nagle, 2012 BCCA 373 at para 32 [Nagle].  
Even in the absence of an actual or threatened physical restraint, a detention may  
occur "if the person concerned submits or acquiesces in the deprivation of liberty and  
reasonably believes that the choice to do otherwise does not exist": Therens, above,  
at 644. In the criminal law context, this may be so even if the detention is "of relatively  
brief duration": Hufsky, above. However, in the border control context, "[p]eople do not  
expect to be able to cross international borders free from scrutiny": R v Simmons,  
[1988] 2 SCR 495 at 528 [Simmons]. Accordingly, routine questioning by customs  
officials and routine searches of the person or of luggage do not constitute detention,  
even where such searches are conducted in a private search room: Simmons, above,  
at 521 and 528-29.  
Following the SCC's decision in Grant, detention under section 9 is understood as  
including psychological detention by state agents, notably where an individual is  
"legally required to comply with a direction or demand" or where a reasonable  
individual, though not legally required to comply, would "conclude that [they were] not  
free to go": Grant, above, at paras 30-31.  
113  
In assessing whether a detention is arbitrary, a three-part test is applied. Specifically,  
the detention must be authorized by law, the authorizing law itself must not be  
arbitrary, and the manner in which the detention is carried out must be reasonable: Le,  
above, at para 124.  
(b) The Parties' Submissions  
The Applicants submit that the Impugned Measures, particularly the requirement to  
stay at a GAA and remain in their room under threat of a substantial fine and/or  
imprisonment,6 is a form of detention contemplated by section 9. They variously add  
that such detention is arbitrary because the measures in question: subject air travellers  
to a blanket policy that does not take individual circumstances into consideration; do  
not apply to travellers entering Canada by land (who constitute the vast majority of  
travellers); do not provide sufficient criteria to guide the exercise of discretion by  
screening officers and make reasonable determinations as between individuals; and  
do not fulfill their stated public objectives because the Variants of Concern are already  
present in Canada and because travellers are permitted to go home after receiving  
their Day 1 Test, regardless of whether the result is positive or negative. They also  
object to being subjected to unreasonable policies, including the prohibition on taking  
photographs or videos upon threat of penalty, and they further reiterate concerns  
regarding being exposed to increased risks at GAA facilities. Finally, they submit that  
the Impugned Measures stigmatize air travellers by assuming that they are more likely  
than land travellers to carry and transmit the virus in Canada.  
In my view, the requirement to stay at a GAA constitutes a "detention" within the  
meaning of section 9. However, such detention is not "arbitrary." Consequently, there  
is no infringement of section 9.  
The typical border screening process is of relatively short duration, especially  
compared to the requirement to stay at a GAA or a DQF for 24-72 hours. Even  
assuming that a screening process of a few hours would not constitute a "detention"  
within the meaning of section 9 (Nagle, above, at para 35), I consider that a screening  
process lasting 24-72 hours unquestionably constitutes detention.  
In contrast to persons who are routinely questioned and even physically searched at  
the border, air travellers are not permitted to proceed home that same day. Indeed,  
they may be prevented from doing so for up to three days. During that time, they are  
required to stay in their hotel room. Although they may request the opportunity to take  
one or more fresh-air breaks, this does not alter the fact that they are subject to a  
significant physical restraint of movement. Given the penal nature of the sanctions to  
which they are subject if they refuse to stay in a GAA, or if they refuse to comply with  
the physical restrictions at the GAA, a reasonable person in that situation would likely  
conclude that they were not "free to go."  
Accordingly, the requirement to stay in a GAA or a DQF for 24-72 constitutes  
"detention" within the meaning of section 9.  
However, such detention is not "arbitrary." As noted above, this stage of the analysis  
requires three determinations: (i) the detention is authorized by law, (ii) the authorizing  
114  
law itself is not arbitrary, and (iii) the manner in which the detention is carried out is  
reasonable: Le, above, at para 124.  
Given that the requirement to stay at a GAA is mandated by the Impugned Measures,  
the first part of the test is satisfied.  
Turning to the second part of the test, I agree with the Respondent that the various  
reasons for concluding that the restriction of the Applicants' liberty interests is not  
arbitrary also weigh in favour of concluding that their detention is not arbitrary. This  
addresses several of the Applicants' submissions, which were in respect of both  
section 7 and section 9.  
With respect to the third part of the test, I consider that the manner in which the  
detention is carried out is reasonable. Air travellers make their own reservations at the  
GAA hotel, they may drive their own vehicle there, they check in as they would at any  
other hotel, they may raise special requests or accessibility needs at that time, they  
can request fresh air breaks (including to smoke), they retain and are free to use their  
personal telephones without restriction, they have Wi-Fi access to the Internet, they  
can choose from a range of food options (including take-out food through contactless  
delivery), they can avail themselves of a range of television and movie options, and  
they are generally free to do as they please within the hotel room. Although travellers  
staying at a DQF may not be able to do all of these things, the manner in which their  
detention is carried out is not unreasonable. Moreover, those staying at a GAA or a  
DQF can also lock their rooms if they so choose, and there is no evidence to suggest  
that anyone is physically forced to go to their room. In addition, they may check out of  
the GAA or DQF soon after receiving their Day 1 Test results.  
Ms. Mathis submits that she was not told where her quarantine facility was located and  
that the police officers who escorted her there refused to provide that information to  
her spouse. After I expressed concern about this during the hearing, counsel to the  
Respondent replied that this occurred prior to the entry into force of the February  
Order, and that since the entry into force of that Order travellers now know where they  
will be staying because they choose and book a room at a GAA themselves. Insofar  
as DQFs are concerned, Mr. Spowart's unchallenged evidence is the name of the hotel  
is not withheld from travellers, who are free to share this information with family or  
friends: Spowart Affidavit, above, at para 56, RNN Record at R910. Be that as it may,  
I consider that the failure to advise an individual of where they are being taken for  
detention is unreasonable and renders such detention arbitrary.  
In summary, I find that the Impugned Measures, particularly the requirement to stay at  
a GAA or a DQF, engage the Applicants' section 9 rights because they result in the  
detention of non-exempt persons arriving in Canada by air. However, with the  
exception of Ms. Mathis, the Applicants' section 9 rights are not contravened because  
their detention is not arbitrary. This is because (i) the detention is authorized by law  
(namely, by the same Order(s) in which the Impugned Measures are contained), (ii)  
the authorizing law itself is not arbitrary, and (iii) the manner in which the detention is  
carried out is reasonable. Moreover, the Impugned Measures, together with the other  
documents discussed in the immediately preceding paragraphs above, provide  
115  
sufficient criteria to guide the exercise of discretion by screening officers and to enable  
them to make reasonable determinations as between individuals.  
Regarding Ms. Mathis' section 9 rights, I find that they were infringed because she was  
not informed of the location to which she was being taken.  
(e) The mandatory entry requirements and  
measures do not violate the right on arrest or  
detention to retain and instruct counsel without  
delay and to be informed of that right that is  
guaranteed under s. 10(b) of the Charter  
[180] The infringement of s. 10(b) of the Charter was also raised in Spencer v. Canada  
(Minister of Health), in which the Applicants had submitted that the entry  
requirements, particularly the requirement of a traveller to stay at a government-  
approved hotel for 3 days results in a detention and upon detention the travellers’  
rights under s. 10)(b) of the Charter were infringed as the travellers were not  
provided the opportunity to retain and instruct counsel without delay and to be  
informed of that right.  
[181] Subsection 10(b) of the Charter states:  
10. Everyone has the right on arrest or detention:  
(b) to retain and instruct counsel without delay and to be informed of that right;  
[182] Crampton C.J. in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622  
(F.C.), at paras. 181 to 191, held that that the requirement to stay in a government-  
approved hotel for 24 to 72 hours to wait for the result of the Day 1 COVID-19  
Molecular test results in a "detention", and as a result, the Applicants' rights under  
section 10(b) are engaged. However, except for one applicant, Crampton C.J. held  
that none of the other Applicants had provided any direct evidence that their rights  
under section 10(b) were breached. In respect to the one applicant that did have  
her s. 10(b) Charter right violated, Crampton C.J. had concluded that because the  
border control officials had refused to disclose to the applicant and her spouse the  
location of the facility to which the applicant was being taken, the applicant’s right  
under s. 9 of the Charter had been infringed and that her right to be properly  
informed of her right to retain and instruct counsel without delay had also infringed  
s. 10(b). However, Crampton C.J. also concluded that no remedy was available  
for the applicant as the applicant had not given notice of an intention to seek a  
remedy under section 24(1) of the Charter [emphasis is mine below]:  
(5) Section 10(1)(b) [10(b)]  
116  
Section 10(1)(b) [10(b)] provides that everyone has the right on arrest or detention to  
retain and instruct counsel without delay and to be informed of that right (emphasis  
added).  
The purpose of section 10 of the Charter is to "ensure that in certain situations a person  
is made aware of the right to counsel and is permitted to retain and instruct counsel  
without delay": Therens, above at 641. One of those situations is when the person is  
detained by the state.  
The meaning of "detention" is essentially the same for section 9 and section 10:  
Hufsky, above at para 12; Grant, above, at paras 28-29. Accordingly, given my  
conclusion in the section immediately above that the requirement to stay in a GAA for  
24-72 hours results in a "detention", the Applicants' rights under section 10(1)(b)  
[10(b)] are engaged.  
The words "without delay" in section 10 mean "immediately": R v Suberu, 2009 SCC  
33 at paras 41-42 [Suberu].  
Beyond maintaining that the requirement to stay at a GAA does not result in a  
"detention" within the meaning of section 10, the Respondent states that arriving air  
travellers do not require the assistance of counsel. This is said to be because they do  
not face significant legal consequences associated with their quarantine, including the  
risk of self-incrimination or seizure of evidence. However, this ignores that the right to  
legal counsel is also "meant to assist detainees regain their liberty": Suberu, above, at  
para 40.  
As with other sections of the Charter, the burden to demonstrate a violation of section  
10 is on the person(s) claiming a violation: Ernst v Alberta Energy Regulator, 2017  
SCC 1 paras 21-22. "The absence of a factual base is not just a technicality that could  
be overlooked, but rather it is a flaw that is fatal to the appellants' position": MacKay v  
Manitoba, [1989] 2 SCR 357 at 366.  
In these consolidated proceedings, only one of the Applicants (Ms. Mathis) provided  
sufficient evidence that her right to be informed of her right to retain and instruct  
counsel, without delay, was violated. She did so at paragraph 13 of her affidavit. That  
evidence was not directly disputed by the Respondent.  
Nevertheless, in his affidavit, Mr. Spowart stated that the "Welcome Packages"  
provided to arriving air travellers "remind travellers they may contact legal counsel if  
they wish." The package in question is an undated seven-page brochure entitled  
INFORMATION FOR YOUR STAY AT A QUARANTINE/ISOLATION SITE. On the last  
page of that document, it is stated: "We would be pleased to assist you in contacting  
legal counsel of your choice if you require it." The same statement is made at page 4  
of another document, also attached to Mr. Spowart's affidavit, entitled Coronavirus  
Disease (COVID-19), FEDERAL DESIGNATED QUARANTINE FACILITY  
INFORMATION FOR YOUR STAY.  
Even assuming that one or both of the above-mentioned documents was provided to  
Ms. Mathis, I consider that the provision of those documents to her upon her arrival  
would not satisfy the Respondent's obligations under subsection 10(1)(b) [10(b)]. To  
117  
discharge those obligations, the person detaining an individual must clearly  
communicate the right to retain and instruct counsel in a manner that it is readily  
understood, at the outset of the detention. Providing a long brochure can reasonably  
be expected to be read at a later point in time is not sufficient. This is because persons  
who choose to read the document later will not have been meaningfully informed of  
their right to retain and instruct counsel without delay. Among other things, the exercise  
of that right can be expected to enable air travellers to better understand the potential  
legal consequences of failing to fully abide by the GAA requirement and associated  
measures, including the manner in which they should be quarantined.  
It follows that Ms. Mathis, who has challenged only the January Order, has satisfied  
her burden to demonstrate a violation of her rights under section 10(1)(b) [10(b)]. I will  
return to this breach in part VIII.B of these reasons below, where I will briefly address  
whether it is reasonably justified in a free and democratic society.  
None of the other Applicants provided any direct evidence that their rights under  
section 10(1)(b) [10(b)] were breached. Although Mr. Duesing attached to his affidavit  
a copy of the pamphlet with which he was provided upon his arrival at the DQF where  
he stayed (before the promulgation of the February Order), he did not specifically  
address the issue of his right to legal counsel. Accordingly, I consider that neither he  
nor the other Applicants have not met their burden under section 10(1)(b) [10(b)].  
(f) The mandatory entry requirements and  
measures do not violate the right to be  
presumed innocent until proven guilty  
according to law in a fair and public hearing by  
an independent and impartial tribunal that is  
guaranteed under s. 11(d) of the Charter and the  
mandatory entry requirements and measures  
do not violate the right not to be denied  
reasonable bail without just cause that is  
guaranteed under s. 11(e) of the Charter  
[183] The infringement of ss. 11(d) and 11(e) of the Charter were also raised in Spencer  
v. Canada (Minister of Health). In respect to s. 11(d), the Applicants contended that  
by forcing air travellers into federal facilities, the government is breaching their right  
to be presumed innocent until proven guilty and with respect to s. 11(e), the  
Applicants contended that air travellers' rights are breached because they are not  
afforded the opportunity to appear before a court and contest their detention.  
[184] Subsection 11(d) and 11(e) of the Charter states:  
11. Any person charged with an offence has the right:  
(d) to be presumed innocent until proven guilty according to law in a fair and public  
hearing by an independent and impartial tribunal;  
118  
(e) not to be denied reasonable bail without just cause;  
[185] Crampton C.J. in Spencer v. Canada (Minister of Health), at paras. 192 to 200, held  
that that the contention by the Applicants that the entry requirements on travellers  
entering Canada from abroad having to stay for 3 days at a government-approved  
facility or to stay at a designated quarantine facility would violate s. 11(d) and s.  
11(e) of the Charter are without merit, as sections 11(d) and (e) of the Charter do  
not apply unless a person has been "charged with an offence" [emphasis is mine  
below]:  
(6) Sections 11(d) and (e)  
Sections 11(d) and (e) state: "Any person charged with an offence has the right ...  
(d) to be presumed innocent until proven guilty according to law in a fair and public  
hearing by an independent and impartial tribunal; [and] (e) not to be denied  
reasonable bail without just cause."  
The Spencer-Duesing Applicants submit that, by "forcing air travellers into federal  
facilities," the government is "breaching their right to be presumed innocent until  
proven guilty." With respect to section 11(e), they suggest that air travellers' rights  
are breached because they are not "afforded the opportunity to appear before a  
court and contest their detention."  
These submissions are without merit.  
In brief, sections 11(d) and (e) do not apply unless a person has been "charged  
with an offence".  
Relying on R v Wigglesworth [1987] 2 SCR 541 at 559 [Wigglesworth] and  
Martineau v MNR, 2004 SCC 81 at paras 19 and 21-29 [Martineau], the Spencer-  
Duesing Applicants maintain that section 11 applies "where a conviction in respect  
of the offence may lead to a true penal consequence." However, those authorities  
are of no assistance to the Applicants.  
In brief, the Supreme Court of Canada in Wigglesworth explicitly adopted a narrow  
interpretation of section 11. In the course of doing so, it held that the rights  
guaranteed by that section "are available to persons prosecuted by the State for  
public offences involving punitive sanctions, i.e., criminal, quasi-criminal and  
regulatory offences, either federally or provincially enacted" Wigglesworth, above,  
at 554 (emphasis added). Later in its decision, it stated: "It is beyond question that  
those rights are accorded to those charged with criminal offences, to those who  
face the prosecutorial power of the State and who may well suffer a deprivation of  
liberty as a result of the exercise of that power": Wigglesworth, above, at 558  
(emphasis added). This case is of no assistance to the Applicants because they  
are not being prosecuted by the state in relation to any offence with which they  
have been charged.  
119  
Turning to Martineau, above, at para 23, the Court specifically stated that "[o]nly  
penal proceedings attract the application of s. 11 of the Charter."  
Given that the Spencer-Duesing Applicants are not currently subject to penal  
proceedings, their rights under section 11 are not engaged. I agree with the  
Respondent that section 11 has no application in the present context.  
Relying on essentially the same argument as is addressed above, the Spencer-  
Duesing Applicants alleged a breach of their rights under section 503 of the  
Criminal Code. That provision imposes certain obligations on "a peace officer who  
arrests a person with or without a warrant and who has not released the person  
under any other provision under this Part..." I agree with the Respondent that this  
provision also has no application in the present context.  
(g) The mandatory entry requirements and  
measures do not violate the right not to be  
subjected to any cruel and unusual treatment or  
punishment that is guaranteed under s. 12 of  
the Charter  
[186] The infringement of s. 12 of the Charter was also raised in Spencer v. Canada  
(Minister of Health), [2021] F.C.J. No. 622 (F.C.), in which the Applicants submitted  
that detaining law-abiding citizens en mass, even when they are healthy, non-  
infectious, or test negative for COVID-19 is a treatment by the government that is  
grossly disproportionate and would outrage society's sense of decency.  
[187] Section 12 of the Charter states:  
12. Everyone has the right not to be subjected to any cruel and unusual treatment or  
punishment.  
[188] Crampton C.J. in Spencer v. Canada (Minister of Health), [2021] F.C.J. No. 622  
(F.C.), at paras. 201 to 205, commented that it had been common ground between  
the parties that the impugned entry requirements or measures do not constitute  
punishment, since it is not a consequence of conviction that forms part of the  
arsenal of sanctions to which an accused may be liable in respect of a particular  
offence. And, although the Applicants contended that detaining law-abiding citizens  
en mass, even when they are healthy, non-infectious, or test negative for COVID-  
19 is a treatment by the government that is grossly disproportionate and has  
outraged society's sense of decency, Crampton C.J. concluded that even assuming  
that the requirement to stay at a government-approved hotel or a designated  
quarantine facility upon arrival in Canada is a "treatment" contemplated by section  
12, Cramton C.J. considered that such "treatment" does not rise to the very high  
threshold required to be considered "cruel and unusual”, and as such, held that the  
120  
impugned entry requirements or measures did not infringe s. 12 of the Charter  
[emphasis is mine below]:  
(7) Section 12  
Section 12 of the Charter states: "Everyone has the right not to be subjected to any  
cruel and unusual treatment or punishment."  
It appears to be common ground between the parties that the Impugned Measures  
do not constitute "punishment". I agree. In brief, one of the conjunctive  
requirements of the test for punishment is that it be "a consequence of conviction  
that forms part of the arsenal of sanctions to which an accused may be liable in  
respect of a particular offence": R v Boudreault, 2018 SCC 58 at para 39  
[Boudreault]. This requirement clearly is not satisfied in the present context.  
The Spencer-Duesing Applicants submit that "detaining law-abiding citizens en  
mass, even when they are healthy, non-infectious, or test negative for COVID-19  
is a treatment by the government that is grossly disproportionate and has outraged  
society's sense of decency."  
Even assuming, without deciding, that the requirement to stay at a GAA or a DQF  
upon arrival in Canada is a "treatment" contemplated by section 12, I consider that  
such "treatment" does not rise to the very high threshold required to be considered  
"cruel and unusual". In brief, that threshold has been variously described as being  
"so excessive as to outrage standards of decency", "abhorrent or intolerable to  
society" and "grossly disproportionate": Boudreault, above, at paras 45 and 46. It  
is manifest that the requirement to stay at a GAA or a DQF for 24-72 hours cannot  
be described in any of these terms.  
Accordingly, the Impugned Measures do not violate the Applicants' rights under  
section 12.  
(h) The mandatory entry requirements and  
measures do not violate the right to the equal  
protection and equal benefit of the law without  
discrimination and, in particular, without  
discrimination based on race, national or ethnic  
origin, colour, religion, sex, age or mental or  
physical disability that is guaranteed under s.  
15(1) of the Charter  
[189] Although the defendant did not raise the issue of infringement of equality rights  
under s. 15(1) of the Charter, it had been raised in City of Mississauga v. Cardoza,  
(unreported, July 21, 2022) (Ont. C.J.), another case before this court in respect to  
the entry requirement of booking a 3-day stay at a government-approved hotel  
where the accused person had returned by air from abroad after having to leave  
Canada to deal with the funeral and estate of the accused’s father who had died in  
another country and had claimed at trial that she was being discriminated against  
121  
because she was unable to afford paying for the 3-day stay at a government-  
approved hotel while athletes arriving in Canada for sporting events were not even  
required to stay for 3-days at a government-approved hotel. However, that  
traveller’s s. 15(1) claim of infringement was dismissed, as that traveller did not fall  
within one of the enumerated grounds listed under s. 15(1) or an analogous ground  
and not being able to afford a 3-day prepaid stay at a government-approved hotel  
in not an enumerated or analogous ground under s. 15(1) of the Charter.  
Furthermore, a traveller who cannot afford to pay for the 3-day stay at a  
government-approved hotel may be allowed to stay at a designated quarantine  
facility for 3 days without cost to the traveller.  
[190] Section 15(1) of the Charter states:  
Equality before and under law and equal protection and benefit of law  
15.(1) Every individual is equal before and under the law and has the right to the  
equal protection and equal benefit of the law without discrimination and, in  
particular, without discrimination based on race, national or ethnic origin,  
colour, religion, sex, age or mental or physical disability.  
[191] In addition, s. 15(1) of the Charter applies to government action in the form of  
legislation, regulations, directions, policies, programs, activities and the actions of  
government agents carried out under lawful authority. Furthermore, for s. 15(1) of  
the Charter to apply, the alleged inequality must be one made by "law". The most  
obvious form of law is a statute or a regulation. However, in certain cases, courts  
have held that s. 15(1) may also be infringed by the exercise of a statutory power  
or discretion, if that discretion is exercised in a manner that discriminates on the  
basis of an enumerated or analogous ground.  
[192] However, the Supreme Court of Canada has held that the equality rights  
guaranteed under s. 15(1) of the Charter must be grounded on one of the  
enumerated categories set out in s. 15(1), namely race, national or ethnic origin,  
colour, religion, sex, age or mental or physical disability or an analogous ground.  
In R. v. Kapp, [2008] S.C.J. No 42, the Supreme Court of Canada had explained  
that s. 15(1) is aimed at preventing discriminatory distinctions that impact adversely  
on members of groups identified by the grounds enumerated in s. 15(1) and on  
analogous grounds.  
[193] But more importantly, to reduce the number of frivolous Charter claims brought  
under s. 15(1), the Supreme Court had held in Law Society British Columbia v.  
Andrews, [1989] S.C.J. No. 6, that the discrimination must be only in relation to the  
enumerated classes set out in s. 15(1) (race, national or ethnic origin, colour,  
religion, sex, age or mental or physical disability) or in relation to an analogous  
class.  
122  
[194] “Analogous grounds” as the Supreme Court has concluded are ones which describe  
personal characteristics that are either immutable (characteristics that people  
cannot change) or constructively immutable (characteristics that are changeable  
only at unacceptable cost to personal identity). To date, the Supreme Court has  
only identified 4 analogous grounds: (1) Non-citizenship: Law Society British  
Columbia v. Andrews, [1989] S.C.J. No. 6; Lavoie v. Canada, [2002] S.C.J. No. 24;  
(2) Marital status: Miron v. Trudel, [1995] S.C.J. No. 44; Nova Scotia (Attorney  
General) v. Walsh, [2002] S.C.J. No. 84; (3) Sexual orientation: Egan v. Canada,  
[1995] S.C.J. No. 43; Vriend v. Alberta, [1998] S.C.J. No. 29; M. v. H., [1999] S.C.J.  
No. 23; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs  
and Revenue), [2007] S.C.J. No. 2; and (4) Aboriginality-residence as it pertains to  
a member of an Indian Band living off the reserve: Corbiere v. Canada (Minister of  
Indian and Northern Affairs, [1999] S.C.J. No. 24.  
[195] In addition, the Supreme Court in Law v. Canada (Minister of Employment and  
Immigration), had developed a three-step analysis for showing discrimination under  
s. 15(1), which it subsequently rearticulated in R. v. Kapp, [2008] S.C.J. No 42, as  
a two-step test. Hence, the present test as set out in para. 17 in R. v. Kapp is the  
following:  
1. Does the law create a distinction based on an enumerated or analogous  
ground?  
2. Does the distinction create a disadvantage by perpetuating prejudice or  
stereotyping?  
[196] Therefore, the purpose of s. 15(1) is to prevent governments from making  
distinctions based on enumerated or analogous grounds that have the effect of  
perpetuating disadvantage or prejudice or imposing disadvantage on the basis of  
stereotyping.  
[197] The first inquiry in the R. v. Kapp test is whether the law creates a distinction based  
on an enumerated or analogous ground. This first step is a threshold requirement  
in that a claim will fail if the defendant cannot demonstrate that a government law  
or action withholds a benefit that is provided to others or imposes a burden that is  
not imposed on others, based on an enumerated or analogous ground: Reference  
re Same-Sex Marriage, [2004] S.C.J. No. 75.  
[198] On the other hand, the second stage of the R. v. Kapp test is generally aimed at  
determining whether the distinction in question amounts to discrimination in the  
substantive sense. Thus, the second stage of the analysis is focused on the guiding  
concepts from Law Society British Columbia v. Andrews, [1989] S.C.J. No. 6, of  
“the perpetuation of disadvantage and stereotyping as the primary indicators of  
discrimination”: R. v. Kapp, at para. 23; Withler v. Canada (Attorney General),  
[2011] S.C.J. No. 12, at para. 30.  
123  
[199] Ergo, the entry requirements of having to book a 3-day stay at a government-  
approved hotel or having to undergo a Day 1 COVID-19 molecular (PCR) test at  
the airport applied to all air travellers entering or returning to Canada and is not  
grounded on an enumerated or analogous ground under s. 15(1) of the Charter.  
Ergo, the entry requirements to book a 3-day stay at a government approved hotel  
or having to undergo a Day 1 COVID-19 molecular (PCR) test upon arrival at the  
airport do not contravene s. 15(1) of the Charter.  
(iii) The Applicants In Spencer v. Canada (Minister Of  
Health), Also Contended That The Impugned Entry  
Requirements Or Measures Were Ultra Vires The  
Authority Delegated To The Governor In Council Under  
S. 58(1) Of The Quarantine Act?  
[200] The Applicants in Spencer v. Canada (Minister of Health), contended that the entry  
requirements and measures under the various Emergency Orders of 2021 were an  
unreasonable exercise of authority, and as such, ultra vires the authority delegated  
to the Governor-In-Council under s. 58(1) of the Quarantine Act because the  
impugned entry requirements and measures are not within the scope of the  
authority delegated under s. 58(1) of the Quarantine Act because they do not satisfy  
the requirement in s. 58(1)(d) that "no reasonable alternatives to prevent the  
introduction or spread of the disease are available."  
[201] Crampton C.J. in Spencer v. Canada (Minister of Health), held at paras. 216 to 218,  
222, and 249 to 251, that the impugned entry requirements and measures are not  
ultra vires the authority delegated to the Governor-In-Council under s. 58(1) of the  
Quarantine Act, and in particular the requirement to stay at a government-approved  
hotel or a designated quarantine facility while awaiting the Day 1 Test result were  
reasonable, since they permit the early identification and isolation of the category  
of travellers with the highest positivity rates and reduces the risk of those travellers  
infecting others [emphasis is mine below]:  
C. Are the Orders Containing the Impugned Measures Ultra Vires the Authority  
Delegated to the Governor in Council under Subsection 58(1) of the Quarantine  
Act? If not, are the Impugned Measures Nevertheless Unreasonable?  
(1) Summary of the Applicants' Submissions  
The RNN Applicants submit that the February Order was an unreasonable  
exercise of authority and was therefore ultra vires the Quarantine Act.  
The focus of this argument is that the Impugned Measures are not within the scope  
of the authority delegated under section 58(1) of the Quarantine Act because they  
do not satisfy the requirement in paragraph 58(1)(d) that "no reasonable  
alternatives to prevent the introduction or spread of the disease are available." The  
RNN Applicants assert that various such alternatives were in fact available and  
that the Respondent did not provide any evidence regarding the potential  
alternatives that were considered. In any event, they state that the Respondent  
124  
also did not establish that the requirement in paragraph 58(1)(d), which is a  
precondition to the exercise of the delegated authority, was satisfied.  
In the absence of such evidence, or any reasons explaining this aspect of the  
decision to promulgate the Impugned Measures, the RNN Applicants maintain that  
this Court's review should focus on the outcome, rather than speculate on the  
reasoning process underlying those measures. In their view, such a focus  
demonstrates that the Impugned Measures are unreasonable. Among other  
things, they state that those measures are overbroad, arbitrary and achieve  
nothing. This is because everyone who is required to stay in a GAA or a DQF and  
who has a suitable quarantine or isolation plan is permitted to leave that location  
after receiving their Day 1 Test results. Such persons can then quarantine or  
isolate in precisely the same location as they would have stayed had the Impugned  
Measures not existed. In addition, given that only approximately 2% of  
asymptomatic travellers test positive in their Day 1 Test, the Impugned Measures  
have the effect of detaining 98% of international air travellers, at their own  
expense, for no reason. Moreover, the Impugned Measures are not applicable to  
persons crossing into Canada by land, who constitute the vast majority of travellers  
entering Canada.  
The Respondent maintains that there was and remains a sound basis, grounded  
in the evolving science and information that was available, to support the  
conclusion that more stringent measures than were in place prior to the  
implementation of the Impugned Measures were required. Those measures, and  
in particular the requirement to stay at a GAA or DQF while awaiting the Day 1  
Test result, were reasonable. Among other things, they permit early identification  
and isolation of the category of travellers with the highest positivity rates and  
reduces the risk of those travellers infecting others.  
Finally, approaches adopted by other countries were considered.  
Given all of the foregoing, I conclude that the Orders containing the Impugned  
Measures are not ultra vires the AIC. The record as a whole reveals that the AIC  
did in fact reach the opinion that no reasonable alternatives to prevent the  
introduction or spread of COVID-19 in Canada were available. That opinion is  
entitled to some deference, particularly given that paragraph 58(1)(d) enables the  
AIC to exercise the emergency powers provided for in subsection 58(1) when it is  
of the opinion that the conditions described in paragraphs (a) -- (d) are met. So  
long as there is a reasonable basis in the record to support that opinion, it does  
not matter that others, such as the RNN Applicants, may believe or even  
demonstrate that there was in fact a reasonable alternative available. As it turns  
out, the alternatives identified by the RNN Applicants were also considered, either  
explicitly or implicitly. They were not considered to be adequate to prevent the  
introduction or spread of COVID-19 in Canada.  
The RNN Applicants also submit that the Orders containing the Impugned  
Measures are ultra vires the Quarantine Act because they are arbitrary. For the  
125  
reasons I have already given at paragraphs 77, 103-122 and 166-179 above, I  
disagree.  
(a) The Impugned Entry Requirements And Measures  
Are Intra Vires the Administrator-in-Council?  
[202] The Applicants in Spencer v. Canada (Minister of Health), also contended that the  
entry requirements and measures were ultra vires s. 58 of the Quarantine Act  
because the Administrator-in-Council had acted beyond its authority in  
promulgating the impugned entry requirements and measures, since there is no  
evidence that the Administrator-in-Council considered the potential existence of  
reasonable alternatives nor evidence that the Administrator-in-Council had reached  
the opinion that there were none.  
[203] Crampton C.J. in Spencer v. Canada (Minister of Health) disagreed with the  
Applicants and held at paras. 233, 235, 239, 246, and 249 to 251, that the  
Administrator-in-Council did in fact reach the opinion that no reasonable  
alternatives to prevent the introduction or spread of COVID-19 were available,  
which Crampton C.J. had based on the recitals to the February 2021 Emergency  
Order, the Explanatory Notes that accompanied the February 2021 Emergency  
Order, and the evidence adduced by the Minister of Health's affiants. As such,  
Crampton C.J. held that the Emergency Orders containing the impugned entry  
requirements and measures are not ultra vires the Administrator-in-Council nor  
arbitrary [emphasis is mine below]:  
(a) Are the Impugned Measures Ultra Vires the Quarantine Act?  
At its core, the dispute between the parties as to whether the AIC acted beyond its  
authority in promulgating the Impugned Measures turns on whether the AIC  
considered the potential existence of reasonable alternatives and then reached the  
opinion that there were none. The RNN Applicants maintain that there is no  
evidence that it did either of these things, and that there were in fact such  
reasonable alternatives. I disagree.  
In this regard, the most relevant aspects of the record include the recitals to the  
February Order, Explanatory Notes that accompanied that Order, and the evidence  
adduced by the Respondent's affiants. Those materials reveal that the AIC did in  
fact reach the opinion that no reasonable alternatives to the Impugned Measures  
were available to prevent the spread of COVID-19.  
The fourth recital to the February Order in which the Impugned Measures are  
contained specifically states: "And whereas the Administrator in Council is of the  
opinion that no reasonable alternatives to prevent the introduction or spread of  
[COVID-19] are available."  
126  
In addition, Ms. Barton, who is primarily responsible for the development of OICs  
pursuant to the provisions of the Quarantine Act, stated that the information  
available at that time "demonstrated that the measures in place since January 7,  
2021 were inadequate to prevent or to limit sufficiently the importation of COVID-  
19 cases into Canada via aircraft especially in light of the emergence of the VOCs":  
Barton Affidavit, above, at para 17. In that same paragraph, she identified that  
information as follows:  
i. "Prior to the [promulgation of the Impugned Measures], asymptomatic  
travellers entering Canada were able to travel onward via public  
conveyance which could have included domestic flights;  
ii. Data from a testing pilot in Alberta in November and December 2020  
demonstrated that approximately 1 to 2% of asymptomatic travellers  
entering Canada were infected with COVID-19. In other words, for  
every flight of 100 people arriving in Canada, on average one or two  
were infected with COVID-19 ...; [Ms. Barton subsequently produced  
other data showing that in January 2021, the number of passengers  
arriving into Canada by air reached 325,765. In that same month "data  
on imported cases of COVID-19 demonstrated more than a three-fold  
increase in the number of affected flights (international flights with  
confirmed COVID-19 cases on them) from September (131 flights  
carrying 157 cases) to January (407 flights carrying 698 cases from Jan  
1--27): Barton Affidavit, at paras 19 and 20.]  
iii. After the implementation of pre-departure testing on January 7, 2021,  
information from an Ontario pilot program showed that 2.2% of  
asymptomatic travellers entering Canada were infected with COVID-19  
notwithstanding their having had a negative pre-departure test ...;  
iv. Data from testing of the travellers on flights from January 10 to 18, 2021  
arriving from a country lacking the resources to administer pre-  
departure tests showed a COVID-19 positivity rate of 6.8% in  
asymptomatic travellers ...; and  
v. Evidence on the increased transmissibility of VOCs suggested that  
Canada needed to take more precautions at ports of entry to reduce as  
much as possible the risk of starting new chains of transmission with  
these variants."  
In summary, contrary to the RNN Applicants' submission, the AIC did in fact reach  
the opinion that no reasonable alternatives to prevent the introduction or spread of  
COVID-19 were available. This is clear from the fourth recital to the February  
Order, reproduced at paragraph 236 above. In this regard, the AIC specifically  
considered that the measures in force prior to the promulgation of the Impugned  
Measures were not sufficient to address the risk posed by COVID-19. This is  
plainly apparent from the excerpt of the Explanatory Notes to the February Order,  
reproduced at paragraph 238 above.  
127  
Finally, approaches adopted by other countries were considered.  
Given all of the foregoing, I conclude that the Orders containing the Impugned  
Measures are not ultra vires the AIC. The record as a whole reveals that the AIC  
did in fact reach the opinion that no reasonable alternatives to prevent the  
introduction or spread of COVID-19 in Canada were available. That opinion is  
entitled to some deference, particularly given that paragraph 58(1)(d) enables the  
AIC to exercise the emergency powers provided for in subsection 58(1) when it is  
of the opinion that the conditions described in paragraphs (a) -- (d) are met. So  
long as there is a reasonable basis in the record to support that opinion, it does  
not matter that others, such as the RNN Applicants, may believe or even  
demonstrate that there was in fact a reasonable alternative available. As it turns  
out, the alternatives identified by the RNN Applicants were also considered, either  
explicitly or implicitly. They were not considered to be adequate to prevent the  
introduction or spread of COVID-19 in Canada.  
The RNN Applicants also submit that the Orders containing the Impugned  
Measures are ultra vires the Quarantine Act because they are arbitrary. For the  
reasons I have already given at paragraphs 77, 103-122 and 166-179 above, I  
disagree.  
(b) The impugned entry requirements and measures are  
reasonable?  
[204] The Applicants in Spencer v. Canada (Minister of Health) also contended that the  
entry requirements and measures of the February 2021 Emergency Order are  
unreasonable because they are not sufficiently justified or substantiated as a  
general matter, or because they are based on flawed analysis.  
[205] Crampton C.J. in Spencer v. Canada (Minister of Health), at paras. 256 to 261, 263,  
and 265, concluded that the passages of the Explanatory Notes, together with the  
recitals to the February Order, provided a reasonable basic justification for the  
February 2021 Emergency Order and that the measures contemplated by the  
February 2021 Emergency Order are consistent with the rationale and purview of  
s. 58(1) of the Quarantine Act and were not unreasonable [emphasis is mine below]:  
(b) Are the Impugned Measures Reasonable?  
Regarding Mr. Colvin's remaining arguments, I do not agree that the Impugned  
Measures are unreasonable because they are not sufficiently justified or  
substantiated as a general matter, or because they are based on flawed analysis.  
The basic justifications for the Impugned Measures were set forth in the recitals to  
the February Order, which closely track each of the provision in paragraph 58(1)(a)  
-- (d) of the Quarantine Act. Those justifications were further addressed in the  
Explanatory Notes to the February Order. In addition to the passage quoted at  
paragraph 238 above, the following passages of the Explanatory Notes at pages  
128  
723 to 728 of the February Order justified the need for stronger border measures  
than had previously been in place:  
As case numbers continue to rise throughout Canada, there is concern for  
the domestic capacity to respond to the pandemic. An increase in the  
number of reported cases in hospitals and intensive care units may  
overwhelm the health system, further exacerbating the negative health  
impacts of the virus. The introduction of the new variants of the virus that  
causes COVID-19 with suspected higher transmissibility may further  
worsen the negative health impacts of COVID-19. [p. 723]  
...  
As new variants continue to spread in the UK, South Africa, Brazil, and  
other countries, there is a strong rationale to require that travellers to  
Canada should test for COVID-19 before and upon arrival in Canada and  
should, with few exceptions, quarantine immediately upon arrival until they  
receive a negative test result to increase overall protection for Canadians  
and prevent further introduction and transmission of all variants of the virus  
that causes COVID-19 into Canada. [p. 724]  
...  
At this time, travel continues to present a risk of importing cases, including  
cases of new variants of the virus that causes COVID-19 and increases the  
potential for onward community transmission of COVID-19. [p. 725]  
... .  
If travellers are to continue to enter Canada, it is important to reduce the  
risk of travellers introducing cases of COVID-19 into Canada as much as  
possible. Evidence demonstrates that pre-departure testing combined with  
testing all travellers upon entry and again later in the quarantine period will  
enable detection of the majority of persons with COVID-19 arriving in  
Canada. Identification of these cases will further permit genetic sequencing  
and the identification of novel variants of concern to support public health  
efforts to contain COVID-19 spread. Requiring travellers entering Canada  
by aircraft to reside in government-authorized accommodations until they  
receive their first test result will help identify and isolate those who may  
introduce or spread COVID-19 variants. [726-27]  
... .  
The Government of Canada recognizes that entry prohibitions, mandatory  
quarantine requirements, and testing protocols place significant burden on  
the Canadian economy, Canadians, and their immediate and extended  
families. Together, these measures remain the most effective means of  
limiting the introduction of new cases of COVID-19 into Canada. With the  
potential advent of new, more transmissible variants of the virus, the  
Government of Canada continues to take a precautionary approach by  
increasing border restrictions, and entry conditions, and restricting  
incoming travel from any country in an effort to preserve domestic health  
capacity in Canada and reduce the further introduction and transmission of  
COVID-19 in the country. [p. 728]  
129  
I consider that the foregoing passages of the Explanatory Notes, together with the  
recitals to the February Order, provided a reasonable basic justification for that  
Order. In brief, they disclose "an inherently coherent and rational chain of  
analysis", that is appropriately transparent and intelligible. Those passages and  
recitals also permit the Court to confirm that the measures contemplated by the  
Order are consistent with the rationale and purview of subsection 58(1) of the  
Quarantine Act.  
Regarding the specific Impugned Measures within that Order, as previously  
discussed, the justifications were as follows: (i) the likelihood that persons who  
tested positive on their Day 1 Test would modify their behaviour upon their arrival  
at their suitable place of quarantine, (ii) preventing people from spreading the virus  
to others when travelling on public transportation to their homes or other suitable  
place of quarantine, (iii) preventing air travellers from infecting anyone in their  
home or other suitable place of quarantine, or in the community, while there are  
staying at a GAA or a DQF, and (iv) facilitating early identification and isolation of  
asymptomatic air travellers who are infected. Once again, I consider that,  
collectively, these justifications provided a reasonable basis for the Impugned  
Measures. Those justifications are also appropriately transparent, intelligible, and  
based on an internally coherent and rational chain of analysis.  
My conclusion in this regard is reinforced by the evidence that some returning  
travellers continued to infect others with COVID-19 even when they were  
instructed to quarantine: Rodin Affidavit, above, at para 16(c). Having regard to  
that fact, the following justification offered by Ms. Barton for the GAA stay  
requirement is not unreasonable, even considering that travellers are permitted to  
leave the GAA to quarantine at home or another suitable place of quarantine, upon  
receiving their Day 1 Test results:  
The requirement for travellers entering Canada by air at the four airports open to  
international flights to remain in GAAs while awaiting the results of their arrival  
tests is to prevent those travellers from inadvertently introducing and further  
spreading COVID-19, especially VOCs, in Canada. It ensures that travellers can  
be monitored closely while waiting for the results of their arrival test. In the event  
of a positive result, rapid public health action can be taken, including moving the  
traveller to a designated quarantine facility, or ensuring private transportation to  
their identified place of quarantine.  
[Barton Affidavit, above, at para 38]  
This justification applies equally to the requirement for symptomatic travellers to  
stay at a DQF.  
Mr. Colvin took particular issue with the requirement for travellers to await the  
results of a PCR test, which he considers to be flawed for various reasons.  
However, even assuming that it may have some limitations or deficiencies, there  
was a reasonable basis for requiring travellers to take the test, both prior to  
departing for Canada and upon their arrival. That basis was addressed in the  
following passage of the Explanatory Notes to the February Order:  
130  
COVID-19 molecular testing such as polymerase chain reaction (PCR) test  
and reverse transcription loop-mediated isothermal amplification (LAMP)  
tests have a higher sensitivity for detecting COVID-19 over the duration of  
infection. They are also able to detect most symptomatic and asymptomatic  
infections, making them more accurate for pre-departure screening. An  
antigen test is more likely to miss a COVID-19 infection compared to a  
molecular test, such as a PCR test. Therefore, molecular tests are more  
accurate for use in pre-departure screening.  
[February Order, Explanatory Notes, above, at p. 727]  
..  
In summary, for the various reasons set forth above, I have concluded that the  
Impugned Measures are not unreasonable.  
(iv) The Emergency Orders Containing the Impugned Entry  
Requirements and Measures Are Intra Vires the  
Authority of the Federal Government under Section  
91(11) of the Constitution Act, 1867?  
[206] The Applicants in Spencer v. Canada (Minister of Health), also contended that the  
entry requirements and measures were ultra vires the authority of the federal  
government and an improper infringement on the exclusive jurisdiction of the  
provinces over public health and that that the federal government's jurisdiction over  
"Quarantine and the Establishment and Maintenance of Marine Hospitals", as set  
out in s. 91(11) of the Constitution Act, 1867 is confined to ship quarantine.  
[207] Crampton C.J. in Spencer v. Canada (Minister of Health), at paras. 266 to 269, 273  
to 283, and 288 to 291, and 295, noted that even though the provinces have long  
been considered to have jurisdiction over health matters within the province, the  
federal government is now considered to have concurrent jurisdiction in this area.  
Crampton C.J. held that there is nothing whatsoever in the text of s. 91(11) of the  
Constitution Act, 1867 to suggest that the meaning of the word "Quarantine" should  
be limited to ship quarantine and that the plain and ordinary meaning of the words  
"Quarantine and" is that Parliament has been given jurisdiction over quarantine as  
well as the other matter mentioned, namely, the establishment and maintenance of  
marine hospitals. In addition, Crampton C.J. held that the purpose in enacting the  
February 2021 Emergency Order supports the view that the "pith and substance",  
or the "essential character", of that Order is not the regulation of health, but rather  
it is "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". Accordingly, Crampton C.J. held that the February 2021 Emergency  
Order, and its successors, are intra vires the authority of the Administrator-in-  
Council, which has received delegated authority from Parliament pursuant to s.  
58(1) of the Quarantine Act [emphasis is mine below]:  
131  
D. Are the Orders Containing the Impugned Measures Ultra Vires the Authority of  
the Federal Government under Section 91(11) of the Constitution Act, 1867?  
(1) The RNN Applicants' Submissions  
The RNN Applicants submit that the February Order, which contains the Impugned  
Measures, is ultra vires the authority of the federal government and an improper  
infringement on the exclusive jurisdiction of the provinces over public health. They  
assert that such jurisdiction was conferred pursuant to subsection 92(7) of the  
Constitution Act, 1867, which extends to "The Establishment, Maintenance, and  
management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in  
and for the Province, other than Marine Hospitals", and subsection 92(13), which  
extends to "Property and Civil Rights in the Province." In addition, subsection  
92(16) confers jurisdiction over "Generally all Matters of a merely local or private  
Nature in the Province."  
In support of their submission, the RNN Applicants maintain that the "pith and  
substance" of the February Order is the regulation of public health. They add that  
the February Order does not attempt to do anything that the provinces could not  
achieve independently. They further assert that once a traveler is permitted into  
Canada, it is inappropriate and unconstitutional for the federal government to  
impose terms and conditions which are of a localized nature. Such action prevents  
the provinces from making their own determinations as to what are or are not  
reasonable limitations on the liberty rights of citizens. It also has other socio-  
economic impacts on the provinces.  
The RNN Applicants further submit that the federal government's jurisdiction over  
"Quarantine and the Establishment and Maintenance of Marine Hospitals", as set  
forth in subsection 91(11) of the Constitution Act, 1867 is confined to ship  
quarantine. In any event, they state that this power should be read down to the  
extent that it infringes on clear provincial jurisdiction or matters of a local nature.  
Moreover, in the absence of any clear head of power, the federal government  
cannot rely on its residual power to make laws for the peace, order, and good  
governance of Canada on matters of national concern or in national emergencies.  
In the alternative, the RNN Applicants state that the February Order overreaches  
in its efforts to control local populations, specifically with respect to those returning  
travellers who do not have connecting flights for interprovincial travel.  
The first step in determining whether a law falls within a federal or a provincial head  
of power under the Constitution Act, 1867 is to assess the "pith and substance" or  
"essential character" of the law: Reference re Firearms Act (Can.), 2000 SCC 31  
at para 15 [Firearms Reference]. This involves examining "the purpose of the  
enacting body, and the legal effect of the law": Firearms Reference, above, at para  
16.  
In this assessment, the actual efficaciousness of the law is not relevant to the  
Court's analysis. Instead, "the inquiry is directed to how the law sets out to achieve  
its purpose in order to better understand its 'total meaning'": Firearms Reference,  
132  
above, at para 18, quoting W.R. Lederman, Continuing Canadian Constitutional  
Dilemmas: Essays on the Constitutional History, Public Law and Federal System  
of Canada, (Toronto: Butterworths, 1981), at pp. 239-40.  
In seeking to understand the purpose of a law, it can often be helpful to consider  
the "mischief" to which it is directed: Firearms Reference, above, at para 17.  
Implicit in the "pith and substance" analysis is a recognition that it may be  
impossible for one level of government to exercise its legitimate jurisdiction over a  
matter effectively without incidentally affecting matters within the jurisdiction of  
another level of government: Canadian Western Bank v Alberta, 2007 SCC 22 at  
para 29 [Western Bank].  
In conducting this analysis, it is important to describe the "pith and substance" "as  
precisely as possible" to avoid superficially assigning a law to both federal and  
provincial heads of power or exaggerating the extent to which the law extends into  
the other level of government's sphere of jurisdiction: Reference re Greenhouse  
Gas Pollution Pricing Act, 2021 SCC 11 at para 52 [GGPPA].  
The second step in a division of powers analysis is to classify the essential  
character of the law by reference to the heads of power under the Constitution Act,  
1867: Firearms Reference, above, at para 25.  
Some subject matters may fall within the jurisdiction of both the federal government  
and the provinces: Western Bank, above, at para 30. Although the provinces have  
long been considered to have jurisdiction over health matters within the province  
(see e.g. R v Morgentaler, [1993] SCR 463, at 490-491), the federal government  
is now considered to have concurrent jurisdiction in this area: Carter, above, at  
para 53. This is particularly so where Parliament legislates with respect to a federal  
matter that touches on health: Canada (Attorney General) v PHS Community  
Services Society, 2011 SCC 44 at para 66.  
(4) Analysis  
In my view, the two steps in the division of powers analysis are sufficient to resolve  
the dispute between the parties on this issue. Accordingly, it is unnecessary to  
address the RNN Applicants' argument pertaining to the federal government's  
residual powers.  
I agree with the Respondent that an ordinary and grammatical reading of  
subsection 91(11) belies the RNN Applicants' position that the word "Quarantine"  
in that provision should be restricted to marine quarantines.  
In my view, there is nothing whatsoever in the text of subsection 91(11) to suggest  
that the meaning of the word "Quarantine" should be limited in the manner  
suggested by the RNN Applicants. For convenience, it bears reproducing that  
provision here: "11. Quarantine and the Establishment and Maintenance of Marine  
Hospitals".  
133  
The plain and ordinary meaning of the words "Quarantine and" is that Parliament  
has been given jurisdiction over quarantine as well as the other matter mentioned,  
namely, the establishment and maintenance of marine hospitals. The word "ship"  
does not appear in this head of power, and it is readily apparent that the word  
"maritime" qualifies only "hospitals", and not also "quarantine."  
Turning to the "pith and substance" stage of the division of powers analysis, I agree  
with the Respondent that the RNN Applicants' characterization of the February  
Order as being a law that regulates public health is inconsistent with the principle  
that a challenged law must be characterized as precisely as possible: GGPPA,  
above.  
I also agree that the AIC's purpose in enacting the February Order supports the  
view that the "pith and substance", or the "essential character", of that Order is not  
the regulation of health per se. Rather it is "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": February Order, Explanatory  
Notes, above, at p. 720. That purpose is consistent with the purpose of the  
Quarantine Act, which is "to protect public health by taking comprehensive  
measures to prevent the introduction and spread of communicable diseases":  
Quarantine Act, above, s 4.  
The context in which the February Order was promulgated provides further support  
for the view that the "pith and substance" of the Order is to prevent the introduction  
and spread of COVID-19. Indeed, this is also plainly reflected in the various  
provisions of the February Order, including the Impugned Measures. That is to say,  
the manner in which the February Order sets out to achieve its purpose is by  
implementing various measures designed to identify infected international  
travellers and then prevent them from infecting others within Canada. The fact that  
the February Order may not be as efficacious in this regard as some would prefer  
is not relevant to this analysis: Firearms Reference, above, at para 18.  
I will turn now to the classification stage of the analysis. I agree with the  
Respondent that preventing or reducing the introduction and spread of COVID-19  
is an objective that falls squarely within the purview of subsection 91(11) of the  
Constitution Act, 1867. I consider it axiomatic that the power to quarantine was  
conferred specifically for the purpose of preventing or reducing the introduction  
and spread of communicable diseases from outside the country.  
In summary, for the reasons set forth above, I conclude that the February Order,  
and its successors, are intra vires the authority of the AIC, which has received  
delegated authority from Parliament pursuant to subsection 58(1) of the  
Quarantine Act.  
(v) Is there a deprivation of property rights under s. 1(a) of  
the Canadian Bill of Rights for an air traveller who has to  
134  
book a 3-day prepaid stay at a government-approved  
hotel?  
[208] In Spencer v. Canada (Minister of Health), it was also contended by the Applicants  
that the entry requirements or measures violated section 1(a) of the Canadian Bill  
of Rights because they deprived air travellers entering the country of their financial  
property, namely, the money required to pay for their stay at a government-  
approved hotel, without due process of law.  
[209] Section 1(a) of the Canadian Bill of Rights states:  
Recognition and declaration of rights and freedoms  
1 It is hereby recognized and declared that in Canada there have existed and  
shall continue to exist without discrimination by reason of race, national origin,  
colour, religion or sex, the following human rights and fundamental freedoms,  
namely,  
(a) the right of the individual to life, liberty, security of the person and  
enjoyment of property, and the right not to be deprived thereof except by  
due process of law;  
[210] Crampton C.J. in Spencer v. (Canada) Minister of Health, at paras. 296 to 298,  
noted that the Applicants had stated that its argument in respect to s. 1(a) of the  
Canadian Bill of Rights would "fall away" if Crampton C.J. had concluded that the  
February 2021 Emergency Order does not breach the Charter; is intra vires of s.  
58(1) of the Quarantine Act; and is intra vires of Parliament's authority. Since  
Crampton C.J. did conclude that the entry requirements and measures in the  
February 2021 Emergency Order did not breach the Charter; is intra vires of  
subsection 58(1) of the Quarantine Act; and is intra vires of Parliament's authority  
under s. 91 of the Constitution Act, 1867, and given that the only breaches of the  
Charter he had found pertain to the January 2021 Emergency Order for one  
individual applicant, and which had since been remedied by the Federal  
Government, Crampton C.J. indicated that there would be no further comment on  
the issue [emphasis is mine below]:  
E. Do the Impugned Measures Violate Section 1(a) of the Canadian Bill of Rights?  
The RNN Applicants submit that the Impugned Measures violate section 1(a) of  
the Bill of Rights because they deprive air travellers entering the country of their  
financial property, namely, the money required to pay for their stay at a GAA,  
without due process of law.  
Section 1(a) states: "[i]t is hereby recognized and declared that in Canada there  
have existed and shall continue to exist [...] (a) the right of the individual to [...]  
enjoyment of property, and the right not to be deprived thereof except by due  
process of law."  
135  
During the hearing of these consolidated Applications, the RNN Applicants stated  
that its argument on this issue would "fall away" if I concluded that: the February  
Order does not breach the Charter; is intra vires of subsection 58(1) of the  
Quarantine Act; and is intra vires of Parliament's authority. Given my conclusions  
on these issues and given that the only breaches of the Charter I have found  
pertain to the January Order, which was not challenged by the RNN Applicants, I  
will not further address this issue. …  
(5) The mistake of fact defence has not been proven on a balance of  
probabilities by the defendant  
[211] In respect to the defendants mistake of fact defences which involves two bases for  
the defence, the defendant has not met her legal burden to prove either of her two  
bases of her mistake of fact defence on a balance of probabilities, since both bases  
of the defendant’s mistake of fact defence are in essence “mistakes of law” or  
“ignorance of the law”, which is not recognized by the courts as a valid defence. In  
sum, the defendant’s first contention that she had mistakenly believed she had  
complied with the entry requirements of having a negative COVID-19 test within 72  
hours of the departure of her flight to Canada and having a suitable quarantine  
plane for 14 days and not being aware of the other entry requirements 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 upon arrival at the Toronto airport are  
mistakes of law by made by the defendant and not reasonable and honest mistakes  
of fact made by the defendant. And, for the defendant’s second contention that she  
had mistaken believed that she did not have to comply with the impugned entry  
requirements 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 upon arrival  
at the Toronto airport because they would infringe on her Charter rights, especially  
her s. 6 rights, is also a mistake of law made by the defendant and not a reasonable  
and honest mistake of fact made by the defendant.  
7.  
CONCLUSION  
[212] For the 2 federal contravention charges laid against the defendant, Wai Wun  
HUNG, on April 5, 2021, under the Quarantine Act, S.C. 2005, c. 20, the  
prosecution has proven beyond a reasonable doubt that Wai Wun HUNG, did  
commit the actus reus of the offence for both of the charges. Specifically, Wai Wun  
HUNG has committed the actus reus for the offence of “failure to comply with a  
reasonable measure ordered by a screening officer, contrary to s. 15(3) the  
Quarantine Act, S.C. 2005, c. 20, which is set out in Certificate #3161-1024051F  
by failing to undergo the Day 1 COVID-19 molecular (PCR) test at the Toronto  
Pearson International Airport upon her arrival on April 5, 2021, at 00:33 a.m. In  
addition, Wai Wun HUNG has committed the actus reus for the offence of “failure  
to comply with an order prohibiting or subjecting to any condition the entry into  
136  
Canada, contrary to s. 58 of the Quarantine Act, S.C. 2005, c. 20, which is set out  
in Certificate #3161-1024892F, by failing to book a 3-day prepaid stay at a  
government-approved hotel on April 5, 2021, at 00:31 a.m.  
[213] In respect to the defendants’ mistake of fact defences which involves two bases for  
the defence, the defendant has not met her legal burden to prove either of her two  
mistake of fact defences on a balance of probabilities, since both bases of the  
defendant’s mistake of fact defence are in essence a mistake of lawor ignorance  
of the law, which is not recognized by the courts as a valid defence. In short, the  
defendant’s first contention that she had mistakenly believed she had complied with  
the entry requirements of having a negative COVID-19 test within 72 hours of the  
departure of her flight to Canada and having a suitable quarantine plane for 14 days  
and not being aware of the other entry requirements 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 upon arrival at the Toronto airport are mistakes of  
law by made by the defendant and not reasonable and honest mistakes of fact  
made by the defendant. And, for the defendant’s second contention that she had  
mistaken believed that she did not have to comply with entry requirements 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 upon arrival at the Toronto  
airport because they would infringe on her Charter rights, especially her s. 6 right  
as A Canadian citizen to enter, remain in and leave Canada, is also a mistake of  
law made by the defendant and not a reasonable and honest mistake of fact made  
by the defendant.  
[214] Moreover, there is no evidence that the defendant had been misled by any  
Canadian government website, by the ArriveCAN app, or by any Canadian news  
media that would have been akin to an “officially induced error” made by the  
defendant, which would be an exception to a mistake of law not being a valid  
defence.  
[215] As a result, the defendant has not met her legal burden to prove on a balance of  
probabilities that she had a reasonable and honest but mistaken belief of having  
met the legal requirements to enter Canada when she did not in fact meet the entry  
requirements on April 5, 2021, which included the legal requirement for air travellers  
entering Canada from abroad to book a 3-day prepaid stay at a government-  
approved hotel and to undergo the Day 1 COVID-19 molecular (PCR test) at the  
airport upon arrival.  
[216] Furthermore, the defendants’ mistake of fact defence based on a reasonable and  
honest but mistaken belief that she did not have to fulfill the legal requirements for  
air travellers entering Canada from abroad of booking 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, as these entry requirements infringed on her rights  
guaranteed under s. 6 of the Charter as a Canadian citizen to enter, remain in and  
137  
leave Canada, has also been not been proven by the defendant on a balance of  
probabilities.  
8.  
DISPOSITION  
[217] Accordingly, 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, that is set out in Certificate of Offence #3161-1024051F.  
[218] In addition, the defendant is guilty beyond a reasonable doubt 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,  
that is set out in Certificate of Offence #3161-1024892F.  
[219] Convictions will therefore be entered against the defendant in respect to those two  
offences.  
Dated at the City of Mississauga on September 22, 2022.  
____________________________  
QUON J.P.  
Ontario Court of Justice  
138  


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