TDF files Notice of Constitutional Question for upcoming ArriveCAN trial

Court document filed by TDF alleges that ArriveCAN requirement was not properly specified by the Minister of Health.

MISSISSAUGA: The Democracy Fund (TDF) has filed a Notice of Constitutional Question in the Ontario Court of Justice over an ArriveCAN ticket issued to one of their “fight-the-fines” clients. The court application argues that the client had a reasonable expectation of privacy in the information the government demanded she disclose through ArriveCAN, which included information about her vaccination status. TDF further argues that this demand constituted an unreasonable seizure as it was not authorized by law.

While the Government of Canada has claimed that ArriveCAN was legally required starting in November 2020, TDF argues that the orders-in-council that purport to establish ArriveCAN make no reference to ArriveCAN. Rather, the orders say that information must be provided by an “electronic means specified by the Minister of Health.”

The question is, when and where did the Minister of Health specify ArriveCAN to be the electronic means referred to in the orders in council?  

TDF’s litigation director, Alan Honner, says he made several inquiries to government ministries about when and where the Minister of Health actually specified ArriveCAN to be the electronic means set out in the orders in council. He never received an answer.

The only document TDF uncovered which specifies ArriveCAN as the electronic means set out in the orders-in-council is dated November 26, 2021, more than a full year after ArriveCAN was supposed to become legally mandatory.

“There is a real question about whether the government actually took the steps to make ArriveCAN legally binding on travellers prior to November 2021,” says TDF Litigation Director Alan Honner. “If the Minister of Health failed to make the specification as required by law except for this one time, then for at least an entire year, the government was telling us that ArriveCAN was legally required when it was not.”

TDF had previously filed an application in the Federal Court of Canada making this same argument. That application was dismissed for mootness because all COVID-19 border measures were rescinded within weeks of TDF filing its court documents.

TDF will be arguing at the upcoming trial that the November 26 document does not apply to their client. Among other things, the document refers to an order in council that was rescinded and not to the order in council that their client was charged with breaching.

“The good news is that the application cannot be struck for mootness because we are dealing with an active ticket,” says Honner. “The bad news is that the prosecution can avoid the argument by dropping the charges.”  

The trial will take place on February 15, 2024.

UPDATE: The prosecution withdrew Ms.Seabrooke's trial on February 15, 2024, after their key witness failed to attend the trial. While TDF is pleased that our client has been spared a fine in excess of $5000, we are disappointed that the Charter argument was not heard. TDF will look for another opportunity to argue its case against ArriveCAN at a future date. 

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About The Democracy Fund:

Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education and relieving poverty. TDF promotes constitutional rights through litigation and public education. TDF supports an access to justice initiative for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.

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