Juno News - September 07, 2022


JCCF files legal challenge against ArriveCan


Episode Stats


Length

16 minutes

Words per minute

176.03168

Word count

2,831

Sentence count

137

Harmful content

Hate speech

2

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

In this episode, the Justice Centre for Constitutional Freedoms (JCCF) and Eva Chepiak join me to talk about their challenge to the government's quarantine policy at the border of Canada and the U.S. Arrive Can app.

Transcript

Transcript generated with Whisper (turbo).
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
00:00:00.000 Welcome to Canada's most irreverent talk show.
00:00:05.220 This is the Andrew Lawton Show, brought to you by True North.
00:00:10.560 The government told us all, maybe they didn't even know it was a lie at the time,
00:00:15.400 that we could buy our normalcy with two doses of a COVID vaccine.
00:00:20.260 And then it's three, and now it's four.
00:00:22.720 And now the transition from fully vaccinated to up-to-date is a very insidious one,
00:00:27.940 because it means that all of these restrictions that they've suspended now,
00:00:31.740 like the vaccination requirement for avoiding quarantine when you come into the country,
00:00:36.840 they're all going to come back, and when they come back, they're going to have a new definition.
00:00:39.980 And all of a sudden, the realm of the unvaccinated will just balloon to a size it hasn't been since 2019.
00:00:47.200 And I want to, just along that vein, turn to Arrive Can here, which has become,
00:00:51.160 as people travel, as more people leave the country and for some reason come back into it,
00:00:55.640 has become something that more and more Canadians and foreigners are facing.
00:01:00.600 And it's this app that the government originally thought would be a pandemic management app.
00:01:05.480 It felt like it was an easy way for them to get people to give their vaccination certificate when they come in,
00:01:10.760 and it saves time at the border and saves time with the public health officials and all of that.
00:01:15.300 And now they're making it a permanent fixture in entry.
00:01:19.300 So I'm glad to see it's being challenged, not just by Canadians that are not complying 1.00
00:01:23.160 and are taking huge fines as a result, but even in the courts.
00:01:27.560 The Justice Centre for Constitutional Freedoms has filed a legal challenge,
00:01:31.540 a charter challenge against Arrive Can.
00:01:34.020 And JCCF lawyers Sia Hassan and Eva Chepiak join me on the program live.
00:01:40.340 Sia, Eva, it's great to talk to you both.
00:01:42.800 I'll ask, I don't know which one of you wants to take it first,
00:01:45.380 but what is this case about?
00:01:47.220 Because it's one thing to not like Arrive Can, it's one thing to find it annoying,
00:01:50.520 but fundamentally, what is it that this challenge is going after?
00:01:55.980 Thank you, Andrew, for having us on your show.
00:01:58.280 And I guess I'll go first.
00:01:59.700 And I want to talk about what this case is not about,
00:02:02.760 because we have seen so much division in our society, vaccinated versus unvaccinated.
00:02:08.420 This case is not about whether you're vaccinated or you're not vaccinated,
00:02:12.480 because the Arrive Can applies to everyone.
00:02:16.040 And even if you're fully vaccinated, but you choose not to use Arrive Can
00:02:20.000 because of privacy concerns, you're still going to be compelled to quarantine for 14 days.
00:02:25.380 You're still going to be given a fine of $5,000 or more.
00:02:29.260 So it's really important, I think, to point that out,
00:02:31.860 that this is not a case of whether you're vaccinated or not.
00:02:35.180 This impacts all Canadians.
00:02:37.060 And one of the major concerns of a lot of our applicants and Canadians is the privacy aspect.
00:02:45.400 And we have applicants in our case that are fully vaccinated
00:02:48.860 who simply don't want to use Arrive Can because they're concerned about privacy.
00:02:53.600 We don't know what's going to happen to this data.
00:02:55.780 We don't know who has access to it.
00:02:57.660 We don't know who's storing it.
00:02:59.180 Where is it getting stored?
00:03:00.880 This is a major concern for Canadians.
00:03:02.900 And that's the kinds of questions that we're going to be asking the court to answer.
00:03:08.480 I think the privacy aspect is key.
00:03:11.220 And I'll ask you about this, Eva,
00:03:12.520 because I know that when I have come into the country and I've used Arrive Can,
00:03:16.120 basically it's tied to my passport or my Nexus card.
00:03:20.000 So when I scan that at the point of entry, they already have my Arrive Can.
00:03:24.740 So it's in a database.
00:03:25.940 And it looks like the government has done a fair bit of integration on the back end,
00:03:29.740 which is not the kind of thing you do with just this temporary public health measure.
00:03:34.800 Yeah.
00:03:35.320 So we've heard a lot of concerns, of course, about the Arrive Can and, you know, the utility of it.
00:03:41.860 I think in your intro, you mentioned that it was meant to speed up the process
00:03:46.360 and everything we've heard about it is it's delaying travel into Canada and in a significant way too.
00:03:52.380 So what is it actually achieving is a really good and important question
00:03:57.840 that we're going to be asking the government to answer on our end.
00:04:02.360 Is this being fought?
00:04:04.360 I mean, I know it's a charter challenge,
00:04:05.960 but what's really the key sections of the charter that you think are impugned by this?
00:04:11.720 I'll take that.
00:04:12.820 So I think that one of the most important one is Section 8, which deals with privacy.
00:04:17.980 That's a major concern.
00:04:19.340 Another charter section is Section 7 and the 14-day quarantine.
00:04:25.920 And one of our arguments is that people are being detained arbitrarily for 14 days.
00:04:33.420 We've had applicants who are fully vaccinated.
00:04:36.520 There is no scientific reason, and we can't see any legal reasons why they have to quarantine,
00:04:41.560 and yet they've been asked to quarantine.
00:04:43.500 So it's very arbitrary.
00:04:44.600 And we know about the glitch in the RIFCAN in July where 10,000 people who were fully vaccinated,
00:04:51.540 who had no issues, were told by the app that they have to quarantine for 14 days.
00:04:56.560 And then it took the government 12 days to contact these people to say,
00:05:00.220 oh, this was a glitch.
00:05:01.240 It was a mistake.
00:05:02.420 So Section 7, Section 8.
00:05:04.280 And another important section, which is dear to my heart because I was a former criminal defense lawyer,
00:05:09.540 is the right to counsel.
00:05:11.280 Because we have law-abiding citizens, some of our applicants included, who are being stopped,
00:05:17.200 they're being detained by police officers, not by border service agents, not by FAC agents, police officers.
00:05:24.640 They're being detained, they're not being allowed to leave,
00:05:27.780 and yet they're not being told that they have a right to speak to counsel at that moment.
00:05:31.600 That's really scary, really intimidating, and it's an issue that's been coming up with the quarantine cases constantly.
00:05:38.060 So that's another very important issue that we're raising.
00:05:41.580 One of the challenges, too, with RIFCAN, as I see it,
00:05:44.980 is that the government has offloaded some of the enforcement to airlines.
00:05:49.680 So if you are wanting to get on a plane and go from, you know, Heathrow Airport to Toronto
00:05:54.940 or from Geneva, Switzerland to Montreal,
00:05:57.820 Air Canada or WestJet or whatever will not let you board the plane
00:06:01.460 unless you show that you've done the RIFCAN.
00:06:04.140 So even for people that are willing to fight this, that would protest it at a point of entry,
00:06:09.220 you're actually denied the right to even get to Canada unless you go along with this.
00:06:15.380 Well, you know, we're getting a lot of conflicting information,
00:06:19.180 and what we've seen, too, is just a lot of very differing cases and fact scenarios,
00:06:26.100 and that's been incredibly telling as to what is going on.
00:06:31.260 The fact that people are being denied entry onto an airplane outside of Canada
00:06:35.860 doesn't seem to fit what the law says.
00:06:39.300 My read of it, it says that the airlines are asked to notify people.
00:06:44.160 There's nothing about not allowing people to board.
00:06:47.760 So I have heard a couple of those stories, not as many.
00:06:51.800 Certainly the issue that we're facing in this legal challenge is once they've arrived here,
00:06:56.740 what's happening.
00:06:58.020 And something I just want to add to what Saya was saying is
00:07:01.100 a lot of these people are really good, law-abiding Canadian citizens
00:07:06.680 that, you know, are surrounded by these security customs agents, then public health officials.
00:07:14.780 You know, it's intimidating.
00:07:16.600 Then they're being told, mandated to go quarantine.
00:07:20.280 Then they're being given these hefty fines.
00:07:22.840 And they're trying to do the right thing in many cases.
00:07:26.260 They're showing proof of vaccination in some cases.
00:07:30.720 They're, you know, they're just trying to go about their daily lives
00:07:34.540 and come into the country that they are citizens of 0.99
00:07:37.340 and really getting a hard time with that.
00:07:40.220 So it's, the stories are incredibly compelling.
00:07:43.420 And unfortunately, that's what we're facing right now.
00:07:47.380 I know there's a bit of a pilot project.
00:07:50.080 I don't know how widespread it is that your customs declaration that you'd give to,
00:07:54.720 you know, I'm not bringing anything from a farm
00:07:56.900 or I'm not bringing anything over $10,000,
00:07:59.160 that sort of thing has been integrated to, in some cases, with arrived again.
00:08:03.240 And this is where we could see it becoming more permanent.
00:08:05.440 Is that something that you believe is part of the challenge
00:08:10.180 or is it just the COVID and vaccination aspect
00:08:12.860 that you find particularly problematic?
00:08:15.920 I think the problem is we don't really know what data is being collected
00:08:20.380 and how it's being stored and who has access to it.
00:08:24.260 Because if it was simply about the vaccine,
00:08:26.380 then people who are vaccinated could simply show their proof of vaccination
00:08:30.820 and they could come in, there would be no issue.
00:08:32.800 But this doesn't seem to be about the vaccine.
00:08:35.540 It seems to be something more.
00:08:37.720 And it's not clear what information is being collected,
00:08:40.540 why is it being collected, who has access to it.
00:08:43.740 And those are the concerns that a lot of Canadians have,
00:08:46.900 including our applicants, the privacy issues.
00:08:50.540 We've seen throughout COVID in the cases that have made their way to court,
00:08:54.780 including some that you have fought.
00:08:57.020 I'm thinking in particular of your, I thought,
00:08:59.140 very good case against the hotel quarantine sometime back, Ziya,
00:09:02.280 that the government has gotten a lot of deference
00:09:05.980 and a lot of latitude from the court because of COVID.
00:09:08.700 And obviously, the longer this goes on,
00:09:10.920 the less acute that COVID issue is,
00:09:12.900 or at least we would hope a court would see it that way.
00:09:16.060 But are you concerned that this is another area
00:09:18.860 where the courts will, again,
00:09:20.220 just continue to let government take Section 1 of the Charter
00:09:23.760 and justify all of this as a reasonable limit on our freedom?
00:09:27.340 I could take that one because I've experienced similar things
00:09:31.720 with some of the cases I've been dealing with.
00:09:34.560 And, you know, we do understand that at the early phase of the pandemic,
00:09:39.300 there certainly should be deference given.
00:09:41.700 Where I have a hard time with the connection here is,
00:09:45.900 the longer we're into this pandemic, the more we should know.
00:09:50.040 And I actually feel like we're understanding and we know less.
00:09:56.660 And I don't think that we can continue or the courts can continue to give deference
00:10:01.600 when the information, the evidence just isn't there.
00:10:06.120 At some point, courts are going to have to take a stand and say,
00:10:11.460 you know, you need to, it's been now three years or now four years.
00:10:15.660 Where is the information that is backing the mandates that you are enforcing?
00:10:22.020 Now, I know that some people have been fined thousands and thousands of dollars
00:10:26.600 for not completing the Arrive Can when they enter Canada.
00:10:30.620 Is your case proactive or are you also dealing with some of the people
00:10:34.560 that have had tickets that are challenging them?
00:10:37.040 All of our applicants have received tickets for either refusing to use Arrive Can
00:10:42.520 or some of them have actually made best efforts to use Arrive Can
00:10:46.520 and there was a glitch, there was a problem, and they were fined anyway.
00:10:51.100 There was at least one applicant who felt really compelled to use the app
00:10:55.360 because he was surrounded by police and he just didn't feel like he had any other options.
00:11:00.720 And he was still fined because there was a glitch with the Arrive Can app.
00:11:04.740 If this were an option, something that you could do but didn't have to,
00:11:11.280 would your case be insignificant in your view?
00:11:14.520 Would your case be moot or is your issue the existence of this app at all?
00:11:19.240 I think it's the mandatory nature of it and the extent that it's being pushed on people
00:11:26.280 and the fact that it's incredibly arbitrary.
00:11:29.260 So when the court is going to look at whether or not this law makes sense,
00:11:33.800 they're going to look at what kind of laws, mitigative measures were put in place.
00:11:42.180 And in this case, we just see so many different, like I mentioned earlier,
00:11:46.240 the cases are just so varied.
00:11:47.880 Like Sia mentioned somebody that there was a glitch with the program,
00:11:52.960 so they get fined.
00:11:54.120 My favorite, which is like a very unfortunate circumstance,
00:11:58.040 is one of our applicants tried to get into the United States,
00:12:01.740 was denied entry into the United States, is turned back into Canada,
00:12:06.740 doesn't leave the country, and is still ordered to quarantine for 14 days.
00:12:11.880 So just the wide variety of the cases and the fact that there is no discretion given to the people,
00:12:21.740 I think that's where it is.
00:12:22.960 And that's going to, if it was not mandatory, and if it was an option,
00:12:27.400 then we would be in a totally different scenario, definitely.
00:12:30.700 I think it's also worth pointing out that the government has changed its rationale,
00:12:36.520 or at least the way it communicates its rationale for this at at least a couple of points.
00:12:41.060 I mean, I remember at one stage when they said that ArriveCan was authenticating vaccination records,
00:12:47.140 whereas when you take a picture of your vaccine certificate,
00:12:50.160 whether it came from somewhere in Canada or theoretically outside of it,
00:12:54.400 it would do that, but it actually does no such thing.
00:12:56.900 It just takes a photo of it and, you know, looks okay.
00:12:59.340 Does this look like a vaccine record?
00:13:01.080 Which is the exact same thing that a border officer could do, to your point earlier.
00:13:05.580 So you are right when you say that this doesn't really align with the it's about vaccination thing.
00:13:11.500 It doesn't align with speeding things up if we find it's actually slowing people down.
00:13:15.940 Has the government really given, in its defense or response to you or in any other public record that you've seen,
00:13:22.660 a definitive explanation of why this is so necessary that we cannot have an immigration and entry process without it?
00:13:31.020 They haven't, and that's because we haven't filed our evidence yet,
00:13:34.500 and the government has not filed their evidence.
00:13:37.220 I think that'll be interesting to see.
00:13:39.500 But I think they're going to have some problem explaining, for example,
00:13:43.060 why somebody who has never left the country has to quarantine for 14 days,
00:13:47.600 or why does someone who's fully vaccinated have to quarantine for 14 days because they don't want to use the SAP?
00:13:53.580 I think they're going to have some difficulty presenting that evidence to the court.
00:13:59.600 Just finally here, I'll ask you this, Eva.
00:14:02.580 I mean, you have to keep hope and you have to believe that, you know,
00:14:06.240 judges are going to see the right path forward here.
00:14:09.120 You're not of the view that government will do what they've done in some other cases here and say,
00:14:15.660 OK, we're going to get rid of it.
00:14:16.940 And then your challenge has to get thrown away because it's moot.
00:14:20.780 No, you have to keep hopeful that we are dealing with exactly that issue before the federal court,
00:14:27.540 which is the same place that we filed the Arrive Can application on the vaccine travel ban.
00:14:32.080 So as we're all very aware, the government has now suspended the vaccine mandate.
00:14:38.740 And at the same time, or a few days later, the government lawyers filed a notice of motion saying that we want to strike your lawsuit because it's now moot.
00:14:51.140 You know, talking to any Canadian, regular Canadian, not lawyers, they're like, but the mandate is just suspended.
00:14:56.860 And I'm like, yes, that's our biggest argument.
00:14:59.980 So I think as well, given the national importance and the extent of the charter breaches that we're claiming,
00:15:07.780 courts are going to have to listen to these arguments at some point and make a decision so that Canadians are aware of what the government can and can't do.
00:15:17.420 And the government is also aware of what they can and cannot do.
00:15:20.560 There's only so much that we could stay in limbo about as Canadians and our rights.
00:15:25.980 And I think it's very important for us to have an open, transparent debate and a decision coming from a court that goes over all of these details
00:15:36.280 and the evidence that, you know, we put in a lot of time and effort for on that case.
00:15:40.760 And we'll be doing the same for the Arrive Can case.
00:15:42.900 Eva Chibiuk, Sia Hassan with the Justice Centre for Constitutional Freedoms.
00:15:48.420 Best of luck and thank you so much for coming on today.
00:15:51.440 Thanks for having us.
00:15:53.020 Bye, Andrew.
00:15:53.960 Thanks for listening to The Andrew Lawton Show.
00:15:56.460 Support the program by donating to True North at www.tnc.news.
00:16:01.900 True North at www.tnc.news.gov.