Court strikes blow against Covid quarantine hotel challenge
A civil liberties group face an uphill battle to defeat the federal government’s quarantine hotel policy after a judge refused to step in to the fray immediately, according to Toronto civil litigator Stephany Mandin.
In his March 22 ruling, Ontario Superior Court Justice Frederick Myers dismissed the Canadian Constitution Foundation’s request for an interim injunction, which would have immediately halted the Trudeau administration’s recently introduced quarantine policy – requiring air travelers entering Canada to pay for a stay at an approved hotel – until a court rules on its legality.
Still, the judge allowed the Constitutional challenge to go forward for a full hearing after finding the CCF’s arguments raised a “serious issue to be tried” on whether the policy breaches s. 7 of the Charter, which protects the right to life, liberty and security of the person.
Mandin, principal of Mandin Law, says the interim injunction was always unlikely to succeed, thanks to the “very high” threshold courts set to intervene at such an early stage. And while Justice Myers did not rule on the merits of the CCF’s application, she says his ruling does not bode well for the group or the five individual travelers it brought the case on behalf of.
“They all have very sympathetic stories, but the focus of the case is ultimately about people not wanting to pay out of their own pockets for a hotel stay, which the judge describes as ‘decidedly first world, economic problems,’” she says. “I tend to agree with the court that these measures are certainly inconvenient. But measured against the serious public health concerns at play, they are far from draconian.”
Under the policy enacted in mid-February, air travelers are required to show evidence that they have pre-paid for at least three days in a government-approved hotel before they are allowed to board flights to Canada. They must then remain in quarantine at the hotel until they have received the results of a Covid-19 test taken on arrival in the country.
The Canadian travelers whose situations were before the court included a woman who was forced to shell out $2,400 for a quarantine hotel after flying to Portugal to arrange her father’s funeral and a man who is no longer able to visit his injured Seattle-based spouse due to the expense of the hotel quarantine on his return.
Justice Myers sympathized with each individual’s circumstances, but was not convinced an injunction was necessary at this stage.
“There is the narrowest of serious issues to be tried raised under s. 7 of the Charter,” Justice Myers wrote, concluding that the applicants had not set out any legal basis for a breach of mobility rights under s. 6 of the Charter, and dismissing as frivolous any claim that quarantine could be considered arbitrary detention or cruel and unusual punishment.
“It is hard to see where there is a liberty interest even raised by the applicants’ subjective views of the value of hotel quarantine as compared to their home quarantine. But, until all the evidence is in and cross examinations are completed, I have to allow the possibility that the government’s evidence may be undermined by fresh evidence or through cross-examination,” he added.
Predicting a full hearing could be arranged within weeks of his ruling, Justice Myers wrote that the applicants would not suffer irreparable harm as a result of his denying them an interim injunction.
Finally, the balance of convenience, “including the public interest in preventing the spread of COVID-19 and, especially, its variants, overwhelmingly supports the refusal of injunctive relief at this time,” Justice Myers concluded.
In a statement, Christine Van Geyn, the CCF’s litigation director, took some solace from the ruling. “This was not the result we wanted today, but the court did recognize that the applicants in our challenge have sympathetic stories and that the constitutional questions need to be heard on the merits. The court also acknowledged that the applicants’ section 7 Charter liberty interests are engaged by the quarantine hotel policy,” she said. “We look forward to the hearing on the full constitutional question, and we are proud of the work were are doing assisting these travelers, who need to leave Canada for compassionate reasons. We will seek to expedite the hearing, as these travelers have urgent needs to go and be with their ailing loved ones outside of Canada.”
According to Mandin, there are other elements of the federal government’s recent Covid policies that could be ripe for constitutional challenge, including its agreement with airlines to suspend all flights from Canada to the Caribbean and Mexico, while allowing air travel to other countries. “That’s arguably more arbitrary and discriminatory,” she says. “We need to pick our battles, and I don’t really see that forcing returning Canadians to pay for their own stay at a hotel is the most pressing issue of our day.”