Court to hear Charter challenge to $5,000 ArriveCAN ticket

MISSISSAUGA, ON: The Justice Centre for Constitutional Freedoms announces that a Notice of Constitutional Question has been filed in the ticket case of Elim Sly-Hooton. Mr. Sly-Hooton’s lawyers, provided by the Justice Centre, have requested a judicial pre-trial to schedule new times, and to agree on witnesses and procedures needed to make Charter arguments. The matter is scheduled to be heard on March 1, 2024, at 3:00 p.m. ET in Courtroom M4, 950 Burnhamthorpe Road West, Mississauga, Ontario. 

Mr. Sly-Hooton, who lives in British Columbia, returned to Canada from the Netherlands on July 30, 2022. He landed at Toronto’s Pearson International Airport. Once on the ground, he did not use the ArriveCAN app to disclose his Covid vaccination status. It is Mr. Sly-Hooton’s personal belief that this medical information should remain private. 

While overseas, Mr. Sly-Hooton tested positive for Covid. At Pearson International Airport, he provided Public Health Agency of Canada (PHAC) agents a certificate of recovery given to him by the Government of the Netherlands, proving he had natural immunity to Covid. Because he did not use the ArriveCAN app to disclose his vaccination status, however, Peel Regional Police and Public Health Agency of Canada (PHAC) personnel detained him. In custody, under pressure and without counsel, Mr. Sly-Hooton broke down and revealed his vaccination status. He received a $5,000 ticket for violating the Quarantine Act and was ordered to quarantine in his home for 14 days. 

At issue in the upcoming trial is whether the federal government can demand personal health information from someone just because they are at the border. Also, the relevance of vaccination status is questionable since it has been shown that vaccination does not affect infections or transmission; the vaccinated and unvaccinated transmit Covid at the same rate. Another issue is whether authorities can arbitrarily order people into detention.  

In his defense, Mr. Sly-Hooton cites his Charter section 7 right to liberty, his section 8 right to be protected from unreasonable search and seizure, his section 9 right to be free from arbitrary arrest and detention, and his section 10(b) right to counsel after arrest and detention.  

Mr. Sly-Hooton’s Notice of Constitutional Question follows the withdrawal of all charges in a similar ticket case.  

Scott Bennett received an ArriveCAN ticket for not using the app at the Pearson International Airport around the time Mr. Sly-Hooton received his, on July 12, 2022. Mr. Bennett joined with ten others who had been fined or ordered into quarantine for not using the ArriveCAN app to launch a legal challenge on August 24, 2022, commenced by lawyers provided by the Justice Centre. They wanted their tickets and detention declared unconstitutional.  

On September 30, 2022, a few weeks after the Justice Centre’s lawyers sued the federal government over the mandatory use of this app, the government discontinued the ArriveCAN app. The court then decided that the constitutional challenge, known as Yates v. Attorney General of Canada, was “moot” (no longer relevant). The court would not hear the case based on its view that, since the app had been discontinued, there was nothing for the court to decide. The court disregarded the fact that the government could bring back the policy at any time. The Federal Court upheld that decision on July 19, 2023, though the Court acknowledged that each person ticketed could raise Charter challenges when fighting their fines. 

In fact, the federal government itself suggested at the first court hearing that the proper place for a constitutional challenge was when individuals contested their tickets. Based on this, Mr. Bennett, with lawyers provided by the Justice Centre, filed a Notice of Constitutional Question in his case. But when his day in court came, on January 16, 2024, the federal government’s witness failed to appear, and the charges against Mr. Bennett were withdrawn.

It is possible that Mr. Sly-Hooton’s trial could meet with a similar fate. 

Chris Fleury, lawyer for Mr. Sly-Hooton, stated, “The requirement for unvaccinated Canadians to lock themselves in their houses for 14 days following international travel was the height of the federal government’s unscientific and irrational response to Covid. By the summer of 2022, it was widely understood that the vaccines did not stop the spread of Covid, even among vaccinated individuals. Mr. Sly-Hooton’s detention in his own house was entirely arbitrary where it provided no public health or other benefit.” 

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