The Justice Centre for Constitutional Freedoms filed two legal actions in the Federal Court of Canada, challenging two orders made by the Trudeau government that would force Canadian residents returning from travel outside the country, into a mandatory quarantine hotel at their own expense.
The first order being challenged is the January 20, 2021 Order of the Minister of Health (Order in Council PC Number 2021-0011 ) that gives the government power to forcibly quarantine asymptomatic healthy Canadians in possession of a negative Antigen Covid test. The second legal action challenges a February 14, 2021 Order of the Minister of Health that would quarantine all international air travelers for a minimum of three days in federally approved quarantine facilities and force them to pay the cost of this forcible three day confinement estimated at up to $2000.00 per person.
The Justice Centre currently represents 11 clients, who have been impacted by the January 20th 2021 Decision or will be impacted by the February 14th 2021 decision.
Steven Duesing and Nicole Mathis were both forcibly detained in federal quarantine facilities for three days for not having the “right” negative Covid test. Their Charter rights were suspended and they were told they had to comply with the forcible detention in a quarantine facility.
Barbara Spencer, Sabry Belhouchet, Blain Gowing, Dennis Ward, Reid Nehring, Cindy Crane, Denise Thomson, Norman Thomson, and Michel Lafontaine, and Steven Duesing all chose to exercise their Section 6 Charter rights to leave Canada for various reasons including death in the family, dental surgery, mental health, getting away from high Covid numbers in Alberta, and mental health. They now seek to once again exercise their Section 6 Charter rights by returning home, but are facing a 3 day mandatory quarantine at a federally approved hotel at the cost of $2000 per person, a price tag prohibitive for many of our clients.
The Justice Centre legal action includes Steven Duesing, a 34-year-old Scarborough, Ontario man who was forcibly detained for three days in a Toronto Radisson Hotel. Mr. Duesing arrived back home in Canada with a negative antigen test that cost him $130, instead of a PCR test.
“On December 25th 2020, Mr. Duesing travelled to Greer, U.S. to spend the holiday season with his girlfriend whom he had not seen for approximately seven months. At the time Mr. Duesing left Canada there were no requirements for a Covid-19 test prior to arriving in Canada. Mr. Duesing was scheduled to fly home on January 31, 2021.
Once Mr. Duesing arrived in Canada he was informed by federal public health officials that his test result was not acceptable and that he would have to take a new PCR test at the airport and then quarantine in a federal facility for 48-72 hours until his test results came back. Mr. Duesing inquired about what would happen if he refused and he was informed that he would be arrested.
Mr. Duesing was then taken to a location in the airport where a PCR test was performed, then taken outside to wait for a shuttle that would take him to the federal quarantine facility. While waiting for the shuttle Mr. Duesing observed two police officers in uniform, a police cruiser and a court services vehicle typically used for transferring prisoners to and from prison. He was then instructed to board the shuttle against his will. In violation of his Charter rights, he was transferred to a federal quarantine facility, which he found out on arrival was the Radisson Hotel, approximately a six-minute drive from the airport.
Mr. Duesing was forced to spend three days in this facility, where he was not allowed to leave the room, and was provided small portions of unappetizing and often inedible food. He was released after three nights in the facility once he received his negative PCR test result,” states the affidavit filed in support of the lawsuit.
Another high profile Canadian, Pastor Nicole Mathis has retained the Justice Centre to represent her, after she was forced against her will on January 28 into a federal quarantine facility and detained for three nights. Calgary police officers refused to tell her worried husband, Pastor Chris Mathis, where his wife was being taken.
The Affidavit of Applicant Nicole Mathis states, “On January 23rd 2021, a day before her flight, Ms. Mathis called the airport to confirm COVID-19 procedure and travel. She was informed that she would need to provide a negative COVID test and quarantine for 14 days in her home upon returning to Canada. On January 26th, Ms. Mathis got a COVID test in Dallas where she tested negative. She presented her negative test at the Dallas airport and was allowed to board the flight home to Canada.
Upon her arrival in Canada, she was told by Public Health officials that she did not have the “proper” PCR test and that she had to go to a Federal facility to quarantine. She was informed that if she did not comply she would be “apprehended by two police officers who would put her in their police car and take her to the facility.” At this point Ms. Mathis felt like she had no other choice but to comply as she did not want to be arrested.
At the Federal facility, Ms. Mathis had to pay $250 for a 12-hour Covid test. A worker at Public Health informed Ms. Mathis that if she left the facility or did not comply with what she was told she would face up to six months in jail and a $750,000 fine. During her three nights at the facility, she was not allowed outside the facility and there was a security guard on her floor which made her feel intimidated and unable to leave.”
The Justice Centre represents Barbara Spencer, a resident of Ontario. Ms. Spencer has a Master’s degree in social work and has worked in the emergency department at different hospitals throughout Canada for the entirety of her career. She is an advocate for patients in hospitals and in long-term care homes. Ms. Spencer’s Affidavit explains, “After her retirement she permanently moved to Mexico in 2011 as she could not afford to live in Canada with her small pension and a $2,000 price tag for a three days in a federal facility will be a significant financial burden on her.
Each year Ms. Spencer would return to Canada to visit her family and friends. She was scheduled to return to Canada in June of 2020 but the airline company she had booked on, Interjet, went bankrupt, and her AirBnB accommodation in Canada was subsequently cancelled. Ms. Spencer intends to return to Canada this year to see her family. These strict and unpredictable restrictions have taken a toll on Ms. Spencer’s health and mental well-being. She is elderly and is concerned about the possibility of becoming ill and not being able to return to Canada or for her family to travel to Mexico to be with her.
Ms. Spencer also has a pressing medical health concern for which she needs to return to Canada to visit her family doctor. Ms. Spencer is afraid and concerned about the federal government and its intention to confine her against her will to a federal facility without due process of law. She is aware that the federal government is taking these steps against other Canadians. Ms. Spencer intends to rely on the Constitution and exercise her Charter right to return to Canada, and not to be arbitrarily detained.
Sabry Mohammad Belhoushet is a resident of Ontario. His father passed away on January 15, 2021. Mr. Belhoushet went to Algeria on January 17, 2021 to attend his father’s funeral. Mr. Belhoushet is a veterinary doctor and has not been working for the past 2 months. He has also covered all financial costs of his father’s funeral. Paying $2,000 to stay at a federal facility is a difficult financial burden on him. He is being represented by the Justice Centre in this action.
The legal action sets out the circumstances of other Applicants as follows:
“Blain Gowing, is a resident of Alberta. On January 16, 2021 Mr. Gowing and his wife travelled to their second home in Mazatlan, Mexico. They were concerned with the alarming rise of COVID-19 in Alberta, as they are both seniors at risk and felt safer in Mazatlan which has a very low Covid-19 rate. As of January 31st 2021 all flights from Mexico to Canada were cancelled, apparently at the personal request from the Prime Minister to the airlines. The only way for Mr. Gowing and his wife to come home now is by taking a U.S. airline to Phoenix, and flying from Phoenix to Calgary. Mr. Gowing and his wife do not consent to being forcibly confined at a Federal facility upon arrival when they will fly with negative PCR tests and can self-isolate at home. Mr. Gowing intends to exercise his Charter right to return to Canada, and not to be arbitrarily detained.
Cindy Crane is a resident of British Columbia. Ms. Crane was a life skills coach and has taught at Waterloo, Simon Fraser in Vancouver, and Mount Royal College in Calgary. She had a serious car accident in 1999 and was on disability until she turned 65 and started collecting her Canada Pension Plan.
In November 2019, Ms. Crane went to her home in Mexico and has not been able to travel back to Canada since that time due to restrictive travel measures that impact her serious health concerns. Ms. Crane has recently recovered from cancer; however she still experiences pain, as well she suffers from asthma which prevents her from wearing her mask for prolonged periods of time.
Ms. Crane wants to return home to see her family and friends. She also needs to return home to meet with her doctors and do follow up appointments related to her cancer. She is at risk for breast cancer as she has the gene that makes her susceptible to it, and there is a history of breast cancer in her family.
In addition to her health issues and the three-day mandatory quarantine at a federal facility she is concerned with the additional 11-day quarantine requirement, as she cannot afford to rent a place to stay, and her family and daughter specifically are not able to accommodate her quarantine needs.
Ms. Crane has a small, fixed income and spending $2,000 to be forcefully confined in a federal facility would be a severe financial burden on her. Ms. Crane intends to exercise her Charter right to return to Canada, and not to be arbitrarily detained, and fears the federal government will carry out its threat to forcibly isolate her in a federal facility.
Denise Thomson and Norman Thomson, represented by the Justice Centre, are residents of Saskatchewan. Denise Thomson worked as a real estate agent for Remax for 20 years before she retired in 2011. Her husband Norman Thomson is a water bomber pilot in Saskatchewan putting out forest fires.
Ms. Thomson and her husband travelled to their home in Mexico on October 31, 2020, having been informed by the federal government at the time that they would be able to have a PCR test in Mexico when they wanted to come back to Canada and quarantine at home for 14 days. Ms. Thomson and her husband are scheduled to return to Canada in early March to allow her husband to return to work. As of January 31st 2021, all flights to and from Mexico have been suspended. During their stay in Mexico the travel restrictions have changed dramatically requiring a three-day forced quarantine in a federal facility at an unknown location, at the cost of $2,000 per person.
Ms. Thomson has an ongoing history of depression and anxiety. She takes medication for depression, anxiety, and insomnia. The new restrictions of having to spend thousands of dollars to be forcefully detained at a federal facility where they are unable to go outside and unable to exercise has caused her severe stress. Ms. Thomson is worried that her depression will resurface again. Mr. and Ms. Thomson intend to exercise their Charter right to return to Canada, and not to be arbitrarily detained.
Dennis Ward is a resident of Alberta, and also a party to this legal action. Mr. Ward went to his home in Mexico on January 14th 2021 based on the federal government’s public statements that he would need to do a Covid test in Mexico before boarding the plane to fly to Canada and once in Canada, he would be able to quarantine for 14 days at his private residence. Mr. Ward went to Mexico for his mental and physical health, and in order to have major dental work completed which he would not have been able to afford in Canada. He needed to have two teeth removed and two implants installed, a process that takes approximately 3-6 months. In January, Canada’s airlines suspended all flights to and from Mexico. As well the Federal government has issued further restrictions that involve a three-day forced detainment in a federal facility at the cost of $2,000. Mr. Ward intends to exercise his Charter right to return to Canada and not to be arbitrarily detained.
Reid Nehring is a resident of Alberta. Mr. Nehring went to Mexico on December 26th 2020 under the previous travel restrictions. Mr. Nehring owns a business in Canada and wanted to return to Canada in February to return to work. All Canadian flights to and from Mexico have been cancelled. The only way for him to get back home is to take a flight from Mexico to the United States and from there fly to Canada. Mr. Nehring intends to exercise his Charter right to return to Canada, and not to be arbitrarily detained.
Jordan Hammond is a resident of Manitoba. Mr. Hammond and his family went to Mexico on January 12th 2021 under the previous travel restrictions to which they were willing and able to adhere to. During their stay, the Federal government announced further restrictions which include a three (3) day forced quarantine at a federal facility at the cost of $2,000 per person. The threat of being detained unlawfully in a Federal facility with his wife, 4-year-old daughter, 3-year-old son, and 1-year-old daughter is causing Mr. Hammond and his family a great deal of stress and anxiety. Mr. Hammond intends to exercise his Charter right to return to Canada, and not to be arbitrarily detained.
Michael Lafontaine is a resident of Quebec with a B.A. and M.A. in Economics. Mr. Lafontaine and his wife traveled to Florida on December 29, 2020 and plan to come back to Canada in April of 2021, once their four-month lease in Florida is over. Mr. Lafontaine has been doing mathematics and statistics his whole life. He has been keeping up with the Covid statistics and his research has shown him that in Quebec thousands of people that are his age are dying. After doing his due diligence, he found that the deaths in Florida for their group are lower. Going to Florida was essential for their physical and mental health.
Mr. Lafontaine and his wife went to Florida under the previous travel restrictions and have received their first dose of the Pfizer vaccine. They will be fully vaccinated with both doses by the time they return to Canada in April of 2021. Mr. Lafontaine is concerned that he and his wife will have to be “incarcerated” in a federal facility and will have to be under house arrest despite being fully vaccinated. Quarantine restrictions apply regardless of vaccine status, the federal government has told reporters.
Mr. Lafontaine has lived through the War Measures Act of 1970 associated with the FLQ crises. Mr. Lafontaine feels that the current civil liberties violations under the current measures are significantly worse than the civil liberties that were violated when Mr. Justin Trudeau’s father was Prime Minister. Mr. Lafontaine intends to exercise his Charter right to return to Canada, and not to be arbitrarily detained.
Additional applicants may be added to the legal action as the Justice Centre proceeds. Justice Centre lawyer Sayeh Hassan notes that Canadians travel for many reasons and the Charter guarantees the fundamental right to enter and leave Canada. “Prime Minister Trudeau has made special exceptions for Olympic athletes and their support teams,” noted Ms. Hassan, yet would deny Canadian citizens the right to return to their home because they do not have the specific test the government mandates, a PCR test.
“These citizens are being held unlawfully despite not having been convicted of any offence, not having had access to a lawyer, and not having appeared before a judge. Law enforcement officers are apparently refusing to inform family members of where their loved ones are being held. This outrageous policy aligns with the world’s most repressive and undemocratic regimes and is totally unacceptable,” stated lawyer and Justice Centre President John Carpay.
“Quarantine, particularly of healthy or asymptomatic individuals, is the functional equivalent of house arrest and the Justice Centre will not allow it to continue unchallenged,” concluded Carpay.
The Justice Centre believes government mandated forcible confinement of healthy, asymptomatic Canadians with a negative Covid test is unconstitutional and breaches their Section 6 Charter right to leave and enter Canada freely, Section 7 Charter right to life, liberty and security of person, Section 9 of the Charter to not be arbitrarily detained, Section 10(b) of the Charter the right to counsel, Section 11(d) of the Charter the right to reasonable bail, Section 11(e ) of the Charter the right to be presumed innocent and Section 12 of the Charter the right to be free from cruel and unusual punishment.
An application for an injunction until the full case could be heard was before the Toronto Federal Court on Wednesday, April 14, 2021. The Justice Centre demanded the Federal Court to end the unconstitutional practice of forcing healthy air travellers who have already tested negative for Covid-19, to quarantine in federal facilities. The Court declined to grant an injunction
The full hearing on the constitutionality of quarantine hotels and quarantine facilities was heard June 1-3, 2021.
On June 18, 2021, the Federal Court released its ruling finding that mandatory quarantine hotels at traveller’s expense are constitutional. The Federal Court also found, however, that the constitutional rights and freedoms of Justice Centre client, Pastor Nicole Mathis, were unjustifiably infringed by authorities failure to inform the Pastor Mathis of her right to counsel upon detention, and her and her family’s right to know the name and location of the designated quarantine facility she was being taken to.
On June 30, 2021, the Justice Centre launched an appeal, at the Federal Court of Appeal, of the decision of Chief Justice Paul Crampton.
The appeal states that Justice Crampton erred in law and fact in finding that the forced detention of returning Canadians in federal facilities do not breach the Charter rights and freedoms of Canadians. The Justice Centre further asserts that the Chief Justice Paul Crampton erred in law by making findings that went beyond the scope of the evidence and the issues that were before the Court in making additional, conclusionary findings that “principles of fundamental justice would permit the imposition of stronger border control measures including longer period of quarantine at the border.”
“The permissive findings of Chief Justice Paul Crampton that the principles of fundamental justice would allow the government to put in place even more restrictive measures sets a dangerous precedent,” stated Justice Centre Litigation Director, Jay Cameron. “When the state detains and forcibly confines a citizen in a federal facility, it doesn’t matter if the facility is a fancy hotel, it is still a detention and a confinement, and therefore an infringement of the constitutional freedoms of Canadians. The decision of the Federal Court on this point is a judicial aberration that must be appealed.”
The ruling did find that the constitutionally protected section 9 and 10(b) rights and freedoms of Justice Centre client, Pastor Nicole Mathis, were unjustifiably infringed when authorities failed to inform her of her right to counsel and because federal authorities failed to inform her of the location she was being taken under the threat of arrest. This part of the ruling will not be appealed.
“The permissive findings of Chief Justice Paul Crampton that the principles of fundamental justice would permit the government to put in place even more restrictive measures sets a dangerous precedent,” stated Justice Centre Litigation Director, Jay Cameron. “When the state detains and forcibly confines a citizen in a federal facility, it doesn’t matter if the facility is a Hilton Hotel, it is still a gross infringement of the constitutional freedoms of Canadians. The decision of the Federal Court on this point is a judicial aberration that must be appealed.”
The Justice Centre brought a Motion on July 9, 2021, requesting that the Court expedite the hearing of the Appeal on the basis that: thousands of Canadians are being impacted by these oppressive measures every day, and that an expedited hearing was necessary to ensure the effectiveness of the remedy sought, namely a ruling that the learned trial judge erred in finding that the government’s measures do not violate the Charter rights of Canadians.
The Federal Court of Appeal agreed with the Justice Centre on July 28, 2021 that this appeal should move forward at a faster pace than an ordinary appeal due to great public interest surrounding the issue.
[Image by THE CANADIAN PRESS/Frank Gunn]
