'Are they lawful?' Constitutional challenge launched over ArriveCAN app, quarantine requirements

A constitutional rights group has launched a legal challenge against the federal government’s requirement that travellers to Canada use the ArriveCan app and unvaccinated travellers quarantine for 14 days.

The action was filed in Federal Court by the Justice Centre for Constitutional Freedoms on behalf of 11 Canadians. According to court documents some applicants allege they were fined for not properly using the app, and most applicants were ordered to quarantine.

“Almost every one of our applicants were fined almost $10,000. So not a small fee, hefty fines,” said Eva Chipiuk, one of the lawyers working on behalf of the applicants at the Justice Centre.

The app has been mandatory for air travellers since November 2020 and in 2021 at land borders.

The legal challenge alleges breaches of many charter rights, including freedoms of mobility, religion, privacy, liberty and equality.

“I do think the court should hear these arguments so that Canadians know, so the government knows whether or not it can take the steps it did,” said Chipiuk, noting requirements have changed many times during the pandemic and it should be determined if those measures are in fact legal to impose.

The ultimate goal of the lawsuit is to strike down the mandatory use of the app and declare the quarantine requirements as unconstitutional, Chipiuk said.

“You hear it all the time, scrap the app,” she added.

The notice of application alleges the federal health minister has failed or refused to provide evidence that ArriveCan's data collection is legal or secure, leading to privacy concerns among users.

It also claims ArriveCan has proven to be unreliable and prone to errors, with real repercussions on the travelling public.

Richard Moon is a distinguished professor of law at the University of Windsor, focusing on freedom of expression, conscience and religion.

He says the court filing equates to the “kitchen sink” approach and isn’t confident any of the constitutional reasons provided will hold up in court.

Moon believes the strongest argument is the one being made around quarantine requirements.

“Section 7 of the Charter of Rights provides that everyone has the right to life, liberty, and security of the person and the right not to be deprived of these except in accordance with the principles of fundamental justice,” said Moon. “The quarantine requirement involves a deprivation of liberty and so the federal government must show that it has good reason to impose such a requirement and this will depend on the available scientific evidence.”

“We know the science is not there to defend and justify a 14-day quarantine for unvaccinated people,” Chipiuk said. “If there's laws in place like this without justification, are they lawful? Those are questions the court is going to have to address.”

The Justice Centre is awaiting a trial date and is seeking $1,000 in damages for each applicant.

“I do think it's of such significant importance to Canadians to know whether or not the government can impose things like this on Canadian citizens,” Chipiuk said.

Federal lawyers have yet to file a statement of defence in the case.

-With files from The Canadian Press