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

Hate Speech Sentences

2


Summary


Transcript

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
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
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.