TURMEL: Justice Centre Challenge TO Federal Quarantine Regs JCT: The "it hurts too much" lawyers had their hearing. They'll never beat "pandemic justifies the restrictions." POSTED ON: JUNE 5, 2021 At the Active Covid Court Cases Canada 2021 I tried to join but a week later, they have not let me so I can't tell them about our case while they focus on the losers who do not say lockdowns are not justified, just that they hurt too much: The Justice Centre's Legal Challenge against Federal Quarantine Court Day 1, June 1, 2021 The Justice Centre for Constitutional Freedoms was in court on Tuesday, June 1st 2021 on behalf of eleven applicants who are challenging the government's policy mandating returning Canadians to quarantine at quarantine hotels and quarantine facilities. Federal Court Chief Justice Paul Crampton is presiding over the matter. Arguments are expected to take three days. JCT: So get that. Nothing wrong with quarantines for pandemics, just whether quarantine at a hotel is okay. The Justice Centre's Henna Parmar in her opening statement submitted that throughout history we have seen that the most egregious human rights violations occur in the face of emergency, and that it is only in hindsight that we are able to see the extent of the irreversible damage that has been caused by the government's ability to trample over our civil liberties and our right to due process. JCT: That's true, in emergencies government may ignore your rights. She urged the court to set a precedent that demonstrates that protecting the Charter rights of Canadians is of the utmost importance and that it is fundamental to our free and democratic society. JCT: Of course, they're in favor of that. But is what she wants fulfilling that? The Court heard that many of the Applicants left Canada under a certain set of rules and came home to entirely different rules. JCT: Government shouldn't be able to change the rules for a pandemic? Ms. Parmar also emphasized that we are currently on the fifth version of Orders In Council with regard to traveling outside of Canada since January 2021, and because these orders keep expiring every thirty days, it makes them incredibly difficult to challenge. By the time a challenge is brought to court, the order has already expired. JCT: It's true that governments and courts love short Orders so they can never be challenged on time. Courts love dismissing issues that have been mooted. The specific sections of the Orders being challenged are the sections - that make it mandatory to quarantine at a federally approved quarantine hotel and the sections JCT: So nothing to do to help me. - that require detaining people in designated quarantine facilities when they are asymptomatic and have a suitable quarantine plan. JCT: Again, nothing helping me. A niche violation claim. Two of the Justice Centre's Applicants were taken to quarantine facilities under the threat of detention and arrest. The authorities refused to tell them the location of the facility and did not inform them of their right to legal counsel. JCT: They might win the right to be told where and that you can speak to a lawyer. Big wins. Not. The Justice Centre argued that even those who are charged with committing serious criminal offences have more rights than these law-abiding citizens and that these Orders violate section 12 of the Charter as the applicants is subject to treatment or punishment at the hands of the state and that such treatment or punishment is cruel and unusual. JCT: Depends if the pandemic is real. If it is, sure criminals have more rights than the possible speaders and locking away the perceived threats is cruel and unusual. So what? It's a pandemic, it's for our own good. The Justice Centre's Sayeh Hassan made the submission that the Orders violate section 6 of the Charter, which affords Canadians the right to enter, stay and leave Canada based on one's own choice. JCT: Not in pandemic when they must do things for your the common good. She submitted that the current oppressive measures create severe and unjustified restrictions on this Charter right and that Canadians' freedom of choice to leave and come home to Canada have been taken away from the Applicants and other Canadians. JCT: I'd bet the Court rules a pandemic makes the restrictions justified, not unjustified. They are faced with the choice to come back and face mandatory detention which they must pay for themselves in the case of quarantine hotels or stay abroad and miss out on opportunities such as to see their doctor, follow up cancer treatment and to reunite with their family. JCT: Yes, there are drawbacks to restrictions to protect the common good from a pandemic. Tough. "When you're faced with detention versus not coming home, that's not a real choice in my respectful submission," said Ms. Hassan. She told the Court: We cannot brush away the detention of thousands of Canadians by referring to this as a regulatory process. JCT: A pandemic is reason good enough for you to face detention or not come home. Ms. Hassan argued that detaining law-abiding citizens into quarantine facilities engages section 7 of the Charter and that this is a serious issue to be tried. Any measures implemented by the state that interfere with life, liberty and security of the person must conform to the principles of fundamental justice. The act of forcing people into facilities, under the threat of arrest is prohibiting the right to move freely. JCT: Yes, but in the case of a pandemic, justified. Another matter of concern raised by the Justice Centre was the security at these facilities. There have been numerous reports of multiple Covid-19 outbreaks at these facilities. The Federal Government also acknowledged one sexual assault occurred at a quarantine hotel. The government is responsible for the safety and security of the people who are being detained in these facilities. JCT: They'll win better security! Doesn't help me. Ms. Hassan argued that there are other minimally impairing measures available to the government besides forced quarantine in a hotel at the traveler's expense, such as testing. JCT: They have other alternatives that don't hurt so much. How is that going to help? Ms. Hassan told the Court that the government's Order is overbroad since it applies to travellers who don't need to take public transportation and or domestic flights. JCT: Violates the rights of those who don't need public transportation.... Doesn't help me. Ms. Hassan mentioned that prior to these measures, there was a government program where private transport was available to people who were symptomatic with an appropriate quarantine plan. That program could be expanded to include all air travelers. Detaining people with a suitable quarantine plan and private transport available is arbitrary. JCT: Detaining people who have an alternative is not justified... If the objective is to limit the spread of variants of concern, the argument can be made that the variants are already in Canada. There is no evidence before the court according to Ms. Hassan that the variants of concern arrived in Canada by way of air traveling. JCT: Air travellers shouldn't be inconvenienced because it didn't come in by air? The lawyer for the Justice Centre also pointed out to the Court that Canadians in these facilities have no control over their environment. At home, an individual has full control over their safety and surroundings and environment. At these federal hotel facilities, individuals are completely under the control of the government or the people working in these facilities. JCT: Yes, people in hotels don't have the same facilities to control their environment as they do at home. So quarantine in hotel is therefore wrong? Court heard that individuals detained in hotels were never advised that they had a right to speak to a lawyer. Ms. Hassan once again submitted that people charged with serious criminal offences appeared to have more rights than law- abiding citizens in this case. JCT: They weren't advised they could speak to lawyer. No problem if they are though. Doesn't help me. Ms. Hassan referred to a report that was published in May 2021 by a government advisory committee making recommendations that the hotel quarantine measures should be discontinued. JCT: Someone says it's not right. The Justice Centre is counsel for two of the four separate but similar Charter challenges before the court. Sarah Miller and Robert Hawkes who are representing applicants' Rebel News and independent journalist Keaan Bexte argued that the Order is arbitrary because it only applies to air travelers.. JCT: Make apply to everyone and it would be okay? Mr. Hawkes also argued that the amount that people must pay to stay in these quarantine hotels is punitive, whether by negligence or design. JCT: Overpriced hotels I won't need really bothers me. Court Day 2, June 2, 2021 Today, proceedings in the Federal Court started with Mr. Jeffrey Rath, who independently represents one of the Applicants, taking exception to a supplementary compendium filed by the Government after the first day's proceedings had been concluded. Mr. Rath argued it inappropriate and requested that all Applicants be permitted to make submissions on the compendium during reply submissions. Chief Justice Crampton ruled that he would not exclude the compendium as he had not had a chance to review it, and confirmed that counsel for the Applicants would be given time to address the arguments and allegations contained in the compendium. Mr. Rath then commenced with his submissions by stating that the applicant adopts all the arguments already made by other Applicants. He went on to argue that considering section 58 of the Quarantine Act, it is important to understand that there are reasonable alternatives to the impugned orders and that Canada has mischaracterized their obligation under the Oakes-test and section 58 of the Quarantine Act to minimize the impairing effect of the measures. The Oakes-test requires a limit on a Charter right must be "reasonable" and "demonstrably justifiably justified". JCT: There are other reasonable alternatives to protect from the pandemic. Pandemic's reality accepted. Mr. Rath submitted that rather than providing evidence on a reasonable basis that alternatives measures were considered, and that the alternatives measures themselves would be ineffective on a scientific basis, the government keeps on saying "these variants of concern are very concerning, and therefore we are justified in what we're doing". JCT: Need proof that the alternatives were considered. Mr. Rath argued that the Oakes-test and the obligation under section 58(d) of the Quarantine Act impose objective criteria on the government of Canada to be able to demonstrate on an objective basis to an outside observer that they have properly considered reasonable alternatives to the infringements that are being imposed. JCT: Need to demonstrate proper consideration... Mr. Rath reminded the court of the role of the Federal Court "to assure the citizens of Canada that their rights were considered and respected in the context of these measures, that the court can objectively observe the measures, look at the science behind the measures versus the alternatives to the measures and then come to an objective determination on the basis of evidence that the measures were either necessary or not necessary." JCT: How can they be not necessary once you accept there's a pandemic? Mr. Rath's client is challenging both the requirement to force Canadian citizens to pay thousands of dollars to be detained at an "airport detention facility" as well as the fourteen-day quarantine period as it applies to healthy, asymptomatic, Canadian citizens who have two negative Covid tests. Mr. Rath referred to the advisory expert report that was filed yesterday by Ms. Hassan of the Justice Centre, which showed that there are alternatives to the fourteen-day quarantine, including a seven-day quarantine on the basis of two negative tests. JCT: A 7-day quarantine is better than 14 days. As to the reasonableness of the Orders, Mr. Rath submitted that there is clearly an unjustifiable infringement of rights in light of the possible alternative measures and the ineffectiveness of the PCR-test to send people to quarantine facilities at their own expense. JCT: I wondered why the Crown didn't make fun of our allegation about the False Positive PCR tests! They listed all our other grounds but left the PCR test out. That must be because it's accepted here that it doesn't work? Mr. Rath asked the question of why people who are symptomatic and sick can be sent home to isolate but people who have no symptoms have to go to a quarantine hotel for three days at their own expense? JCT: Because people who know they are sick will act differently than people who don't. Chief Justice Crampton wanted to know whether there is any evidence to the issue that it takes time to present symptoms from the time of being infected. JCT: Who cares how long it takes for the sniffles to appear. The question is whether you can spread before they appear. Mr. Rath said that this issue is addressed in the expert advisory report where reference is made to 7-day quarantine being just as effective as a 14 day quarantine with additional testing. JCT: I'd bet a 3-day quarantine would be no better than a 7- day or 14-day quarantine if the pandemic is a hoax. Mr. Rath made submissions that the current test used to test for Covid is not an accurate test because it cannot differentiate between someone who has Covid and someone who had Covid. JCT: And if the PCR test is set too sensitive, it will return false positives sheep, goat, papaya. After Mr. Rath's submissions the Government began submissions by challenging Ms. Parmar's submission that the forced hotel quarantines in GAA's (Government Approved Accommodation) are run by the government, stating that these hotels were merely authorized, private hotels to temporarily accommodate air travelers. JCT: The hotels aren't run by government so can't blame the government for making you stay there. Court Day 3, June 3, 2021 The challenge in the Federal Court resumed this morning with Counsel for the Government resuming their submissions on increased travel and the importation of Covid-19 and concerns with respect to the health system. According to the Government, using preliminary findings on the international border pilot program, there is an approximately 1% positivity rate amongst air travelers. Chief Justice Crampton noted that Mr. Rath, made submissions about sending people who tested positive or that were symptomatic home while keeping asymptomatic people with negative tests at hotels. Chief Justice Crampton stated that he is wrestling with what the incremental benefit is for the added measures, and specifically the GAA's (Government Approved Accommodation) to which Respondent's counsel submitted, in essence, that if a person is isolated at the hotel for three days, and receive a positive test result, they will possibly changes their behavior in moving forward. The Respondent further submitted "going home with the knowledge of a positive test result may change your behavior," and that by mandating a three-day hotel quarantine the government can "catch" Covid positive people which will reduce spread. There was discussion between the Respondent and Chief Justice Crampton about whether the government had taken into consideration other alternatives measures to mandatory hotel quarantines, and whether after that consideration the government found that the GAA measure is the most minimal impairing measure, as required by the Charter. JCT: Presuming pandemic restrictions are justified... Respondents submitted that other alternative measures were considered but were found to be unsuitable. JCT: Wonder if they just said that are no valid alternatives or if they listed the ones that were discounted. On a question from the court on how the GAA is meeting the objectives of the OIC which is to reduce the importation and spread of Covid-19, Respondent's reply was that it allows government to do a more in-depth assessment into the suitability of the quarantine plan of the traveler, there will not be at-home transmission, it has the benefit of the traveler having the knowledge of a positive test thereby potentially changing a person's behavior and stops people from traveling on public conveyance. The Respondents then moved on to their submission on the Charter issues submitting that nothing in the OIC's prevent the applicants from leaving, staying in or entering JCT: Whoa! Nothing prevents the from leaving? A quarantine where you can leave? The Respondent submitted that the risk of transmission of Covid is higher in travel than in the community. In the face of the seriousness of the pandemic, the Respondent argued that the limitation on the right to liberty of the applicants is in line with the principle of fundamental justice. JCT: The "seriousness of the pandemic" that's a third as deadly as the Flu? We look at the seriousness that is lacking, this case accepts the seriousness. Chief Justice Crampton asked the Respondent about people being taken to quarantine facilities without disclosure of the location. JCT: Nice to see him focused on the big issue. Respondent submitted that the locations are not a secret, but they do however require people who are being directed there to not disclose it to the public for safety reasons. JCT: Wonder what "safety reasons" there are that people can't say where they'll be quarantined? Do the hotels want to keep it quiet to keep booking other guests? Chief Justice Crampton was not satisfied with this answer and wanted to know that if someone who is taken to one of these facilities' spouses asks for the location, as in Ms. Mathis' case, one of the Justice Centre's clients, why can it not be disclosed to them? The Respondent submitted that this situation has now been remedied by the fact that people now book their hotel room in advance and now know the location, but that the Respondent accepts that Ms. Mathis had experienced what she had experienced at the quarantine facility. JCT: OK, a spouse can find out where you're taken. Big win. The matter has been concluded pending a decision from Chief Justice Crampton. It is unknown when the Court will issue this decision. POSTED ON: JUNE 18, 2021 Federal Court rules isolation hotels constitutional; chastises federal government for other breaches The Justice Centre for Constitutional Freedoms is disappointed with the Federal Court ruling today that found mandatory quarantine hotels at traveller's expense are constitutional. The decision will be reviewed thoroughly with a view to appeal. JCT: If the pandemic is real, restrictions are okay. And they're not challenging the reality of the hoax. 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. JCT: Next time, they'll inform her she can have counsel. Big win. Pastor Mathis (pictured above, with her husband) was forced against her will on January 28 into a federal quarantine facility and detained for three nights because her negative Covid test was not accepted by Canadian Public Health officials. Calgary police officers refused to tell her worried husband, Pastor Chris Mathis, where his wife was being taken. The Justice Centre was in Federal Court on June 1 - 3 on behalf of Pastor Mathis and ten more clients: Barbara Spencer, Sabry Belhouchet, Blain Gowing, Dennis Ward, Reid Nehring, Cindy Crane, Denise Thomson, Norman Thomson, and Michel Lafontaine, and Steven Duesing, who are challenging the government's policy of forcing returning Canadians into federally chosen quarantine hotels and quarantine facilities at their own expense. The Justice Centre argued that these oppressive measures violated numerous Charter rights and freedoms. Specifically the Justice Centre argued that mandatory quarantine of law abiding Canadian citizens in federally mandated facilities violated their rights to enter and leave Canada freely pursuant to their rights under S. 6(1) of the Charter, it violated their rights not to be arbitrarily detained, their right to speak to counsel upon their detention and their rights to be presumed innocent until proven guilty and the right to have their detention contested in court. JCT: And all those rights may be ignored in the case of a real pandemic. Tough. On February 14, 2021, the Federal Government issued an Order In Council forcing international Canadian air travelers to be quarantined for three days in a federally mandated hotel at their own expense, while waiting for Covid PCR test results. If individuals test negative they are allowed to go home to complete the remainder of their 14 day quarantine, however if they test positive for Covid they may be directed to further confinement at another quarantine facility, to complete the remainder of their 14 day quarantine. JCT: I thought it was those who tested positive who could go home and those who didn't know who had to quarantine. Is this a switch in the story? The new measures took effect on February 22, 2021. To date thousands of Canadians have been detained against their will in quarantine hotels and quarantine facilities, and thousands more have received large fines for refusing to be detained. "Never in post Charter history have law-abiding Canadians been detained en masse against their will, with no regard for the fundamental freedoms this country was founded on," states Justice Centre Litigation Director, Jay Cameron. JCT: And all justified in times of emergency. "The Federal Courts finding that these heavy-handed measures are constitutional is deeply concerning. JCT: Concerning but all justified in times of emergency. Canadians continue to wait anxiously for the courts of the land to draw boundaries around the increasingly authoritarian measures of government regarding Covid. We are reviewing the decision carefully." JCT: And as long as you accept the pandemic is real, you have no argument against restrictions to prevent spread. Sadly, all these court cases challenge the pain and not the pandemic. We say it's a hoax and restrictions are unjustified. They say restrictions are unjustified because they hurt too much or there are less hurtful alternatives. But accept the hoax as true.