Western Standard - February 09, 2023


Lawyer Alan Honner of The Democracy Fund & their lawsuit over the ArriveCAN app

Mentioned
Corey Arthur Pavlovsky Sarah Miller COVID-19 Rulo Cory
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Length

15 minutes

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171.01

Word count

2,735

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175

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Summary

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

In this episode, I speak with the Litigation Director of the Democracy Fund, a non-profit organization that seeks to challenge the removal of a requirement that required travellers across the Canadian border to provide their information to the federal government. This requirement was introduced in October of 2011, and was rescinded a few months later. Now, the government is trying to rescind the requirement, and the group is challenging that decision in court.

Transcript

Transcript generated with Whisper (turbo).
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
Hosts, guests, and mentioned names generated with spaCy (en_core_web_sm), reconciled against Wikidata.
00:00:00.000 Thank you very much for joining me today. I know some people are kind of looking at the
00:00:04.420 Arrive Can thing in the rearview mirror, but we, you know, it's, it was a policy that really had
00:00:09.660 some impact on a lot of people and we can't let them just get away with it and push it under the
00:00:14.760 rug. So perhaps just as a start, if you could introduce yourself, you're the litigation director
00:00:19.360 with the Democracy Fund and you're following up on the Arrive Can? That's right, Corey. It's a
00:00:29.980 civil liberties organization. We're a charity and we challenge the government when we suspect
00:00:35.680 there have been charter breaches or civil rights violations. And we did that with Arrive Can
00:00:42.020 back in August of 2022. Now, as you probably know, Corey, about a month after we brought
00:00:50.600 that application, the federal government rescinded all COVID-19 related border measures. What
00:00:58.040 they're now trying to do is to say that because they've rescinded all those measures, our application,
00:01:04.820 our court challenge is moot because there's nothing left to decide, but we don't agree with that.
00:01:10.140 Well, no, I mean, you still, just because you stopped doing it. I mean, if I'm doing something
00:01:14.380 wrong and I've been doing it for a long period of time, say it was criminal. I mean, we're not talking
00:01:18.720 about a criminal thing in this, but if that was the case, you don't say, oh, well, I've stopped doing
00:01:22.420 it. So you don't need to pursue charges any further. Well, no, the act was still committed and there still
00:01:26.120 has to be some consequences or follow-up on what happened. I mean, for them to just say, well,
00:01:30.800 we've turned the page, we can forget about it. It sounds pretty unreasonable.
00:01:34.540 That's right. And, you know, Corey, if there is a charter breach happening, if there is a breach to
00:01:42.020 your privacy rights under section seven and eight of the charter, the fact that that information has
00:01:47.340 been compelled under threat of constant, of prosecution, and it's, it's being retained and
00:01:53.720 retained indefinitely and potentially shared, the constitute in constitutes, at least in our view,
00:02:01.220 an ongoing breach. This is not something, it's not the sort of thing that the government can fix by
00:02:08.980 simply rescinding the arrive can requirement. So where is your action at this point, then it is
00:02:17.360 going, you're making an application to a court or it's already in progress? Where are things sitting
00:02:21.760 right now? Well, it's already in progress. As I said, we issued the application with the Federal
00:02:27.140 Court of Canada, and that was in August of 2022. But because the measures were rescinded shortly after
00:02:35.500 that, we're now appearing before a court to argue whether or not our application should proceed.
00:02:43.980 So that's where we are. But Corey, there's another part of our application. And I think
00:02:48.380 this hasn't been really widely discussed in mainstream media, or very much at all. And that
00:02:54.700 is the question of whether arrive can was actually legally required of persons traveling the border,
00:03:01.660 at least for part of that period from October 2020, when they first started the requirement up until
00:03:08.620 October 2022, when it was rescinded. And that's one of the things that's very unique about our
00:03:14.060 application. We're actually saying that for a period of time there, arrive can was not the law,
00:03:21.100 because the government made a mistake. Or if it was law, they haven't been transparent about it. And we're
00:03:26.540 asking them to prove to us that they've taken the requisite steps under the order in orders and
00:03:33.260 council to make arrive can legally binding. Yeah, well, a lot of pandemic measures, I mean,
00:03:38.940 they certainly use the justification of an emergency to bring in orders and council and things to slide
00:03:44.220 under the radar. So they wouldn't face the scrutiny of our legislators before they got brought into place,
00:03:49.260 which I believe, yeah, it does make it all the more important than if we couldn't do it at that time,
00:03:52.700 then we should be giving these these actions and measures scrutiny now, rather than saying, you
00:03:57.500 know, well, it's just a done deal. Right. Corey, you bring up a very important point. And that point
00:04:03.020 is that arrive can was not passed into law in the ordinary way that we were used to, right? We're used to
00:04:11.260 laws being passed by the legislative branches of government after some debate in the legislature or
00:04:19.820 in parliament. But arrive can came about in a very strange way. And if you'll indulge me for just a
00:04:26.780 moment here, we have legislations called the quarantine act. And under the quarantine act,
00:04:32.620 the governor and council can make certain orders if they're satisfied certain conditions exist with
00:04:38.460 respect to a communicable disease. And they did that. And they issued these orders and council from
00:04:45.740 October 2020 to October 2022. These are supposed to be the origins of arrive can. This is supposed to 0.69
00:04:53.500 be the legal foundation for arrive can. But here's the problem, Corey, those orders don't mention arrive
00:05:00.940 can. You will not find the word arrive can anywhere in those orders. Those orders only say that the
00:05:08.620 Minister of Health will specify an electronic means by which certain information must be provided.
00:05:15.980 Where did the Minister of Health do that? That's one of the questions we have for him.
00:05:20.780 And you have that document, I believe you sent it to us from the Public Health Agency of Canada. So,
00:05:27.180 I mean, it's documented with this unusual measure and move with what they've done.
00:05:34.700 I imagine it would take the power of the court to start making them explain themselves on this.
00:05:38.300 Right. And this document is critically important, Corey, because if you look at the bottom of that
00:05:44.140 document, I don't know if you can see it, but it's dated November 26, 2021. Now, this is a document
00:05:51.820 where the designate of the Minister of Health is specifying let arrive can as the electronic means
00:05:58.700 required in the orders. But it's a year late. They were supposed to make this specification in November of
00:06:06.220 2020. And I can't find any other document like this anywhere in which the Minister of Health or his
00:06:13.500 designate specifies arrive can. And I can be proved wrong, but I don't think it exists.
00:06:23.100 So just on to, I want to kind of turn a little bit, you'd mentioned on the way your organization's
00:06:29.340 kind of got a unique approach to it. I'm just wondering, the JCCF just announced that they're
00:06:34.460 launching some sort of legal action with regards to the arrive can app as well. Are you guys working
00:06:40.060 in conjunction? Are these parallel sort of actions? I mean, is it kind of the more the merrier on this?
00:06:46.940 I'm just wondering what's going on? I didn't really see the JCCF one too closely because that just came out.
00:06:52.780 Well, so the answer is yes and no. We're great fans of the JCCF at the Democracy Fund. We both issued our arrive
00:07:00.140 can applications separately, but on or about the same day. And they have been joined up by the Federal
00:07:06.940 Court of Canada, because they do that for a variety of reasons, because if two people challenge the same
00:07:12.780 law, they want to make sure that the decisions are consistent. So in that way, we are together with the JCCF.
00:07:20.620 But I also understand that the JCCF has now filed a lawsuit for damages relating to arrive can. And
00:07:28.460 that is not something that we have any part of, but we wish them the best of luck with it.
00:07:33.900 Yeah, so that's something I wanted to move on to, you know, as was asking you, what are you
00:07:38.380 seeking from the government? So I mean, if not damages, then just, I guess, a ruling to at least
00:07:43.660 sanction the government or to at least, you know, state that this there was things done
00:07:48.860 incorrectly or violating people's charter rights?
00:07:52.140 We're seeing declarations. But there's, there's an important point here. Because if we're right,
00:07:59.180 that arrive can wasn't properly specified between November 2020 and November 2021.
00:08:05.740 It means that anybody who's charged with it shouldn't have been. And that any tickets that they were issued,
00:08:13.180 they shouldn't have been prosecuted for. And those people will have a great defense if we're right.
00:08:19.740 And they will possibly also have some other recourse if they've paid the fines.
00:08:25.340 There's also a question about what happens with people who were compelled to provide their information
00:08:31.820 under threat of prosecution to the Minister of Health through arrive can. If arrive can wasn't
00:08:39.100 the law for that period of time we're discussing, then that's an unreasonable search. It's an unreasonable seizure.
00:08:47.660 Yeah, I mean, boy, you know, it just gets so convoluted. I mean, we really suspended our protections and our
00:08:56.300 means of properly, you know, creating and applying laws throughout this. And as you said,
00:09:01.260 so were there a large number of people who faced then some charges or fines or sanctions because of
00:09:06.220 not using arrive can or not properly, as far as the government's concerned, taking part in it?
00:09:11.020 Well, the government has said in a, at least they told the CDC, that about 190 people have been charged with,
00:09:19.500 directly charged with not using arrive can when they cross the Canadian border. That was in August of
00:09:27.420 2022. So I don't know if there were others charged after that. I don't have that information. But these
00:09:33.660 charges are significant. They're over 5000, in some cases over 6000 dollars.
00:09:38.700 Well, yeah, I mean, that's a very serious sanction against somebody who I mean, even if well, even if they
00:09:45.580 do have the means to shrug that off. I think most of us don't. It's certainly a matter of principle,
00:09:50.540 again, especially if you were charged with something that wasn't actually a law. I mean,
00:09:53.660 it's kind of bizarre. Right. So, you know, we and and let's get back to that point of whether or not
00:10:00.380 it was the law. Because, you know, Corey, I can't find it. I've looked for it. I have made requests to
00:10:07.180 the Minister of Health. I've made requests to the Deputy Minister of Health. I've made requests to the Public
00:10:12.860 Health Agency of Canada. I have asked lawyers for the Attorney General to get me the proof
00:10:19.500 that arrive can was specified as the electronic means by which people have to provide this
00:10:24.940 information. Back in November of 2020, nobody's giving it to me. And that's one of the things we're
00:10:31.180 trying to get out of this lawsuit. We're trying to get that proof. Now, the government could very easily
00:10:36.140 refute me. They could just give me the information that I've been asking for. But why is it so hard to
00:10:40.860 find it? Why won't they give it to me? Well, so I mean, can the courts compel the government to come
00:10:47.500 up with these? We know the government, if they don't want to provide documents, boy, they can sure
00:10:51.340 twist themselves into knots and make up reasons for public health or security or whatever reason
00:10:55.820 as to why we don't deserve to know what they actually did. Well, I'll put it to you this way,
00:11:00.620 Corey. If the Minister of Health succeeds in having our application struck for mootness,
00:11:07.660 they won't have to give us that information, not through this court proceeding anyway. But we will
00:11:13.500 find some way to get it. Well, I don't doubt it. Your organization and yourself have been very
00:11:19.500 persistent on this and other issues and some of your testimony and other areas on this whole pandemic
00:11:25.740 thing. I mean, we're in the phase, I think the government really wants us all to forget about it.
00:11:29.660 You know, they want the hopefully we'll see what comes out from the Rulo report and they'll want
00:11:35.900 to pretend it's all done with. But boy, we turned our nation upside down for three years. I want some
00:11:40.620 answers. I'm certain a lot more Canadians do as well. Yeah, I couldn't agree with you more. It seems
00:11:47.500 like Arrive Can is just one of the many things that have gone wrong with our nation since 2020. And
00:11:59.740 at least I think it's one of the many things that have gone wrong with our nation. And I'd like some
00:12:05.980 answers and some accountability for what seems to me to be an unprecedented disregard of our rights.
00:12:15.100 So what sort of timeline are you looking at right now? I mean, the courts can, of course,
00:12:18.860 can be agonizingly slow. You've been in the process for some time already. Is there some
00:12:24.940 resolution in sight down the road? Well, so what's happening now is it's a motion and a motion is when
00:12:31.420 one of the parties asks the court to do something. In this case, the attorney general is asking the
00:12:37.260 court to strike our application. So to make it go away entirely, they've had to file materials. They've
00:12:43.260 done that. We filed responding materials. If anybody wants to see them, they can go to our website, which
00:12:49.260 is the democracyfund.ca. And now the attorney general will have a chance to respond to us. I think
00:12:58.540 they have until February the 15th to do that. And then the court will make a decision. And if they
00:13:04.620 decide the application is moot, that's the end of it. If they don't decide that the application is moot,
00:13:10.460 but that I can proceed, then we'll get a disclosure and we'll go on to argue the merits of the application.
00:13:18.860 Yeah. So while I've got you, the democracy fund, you guys have other actions and items that you're
00:13:25.180 working on as well. What other things have you guys got on your plate right now?
00:13:30.300 Well, we just wrapped up the public order emergency inquiry as you referred to. We're representing
00:13:38.380 dozens of people who have been criminally charged with respect to the freedom convoy protests across
00:13:47.340 Canada. We have probably a couple of thousand at least individuals who are representing have been
00:13:55.340 charged with quarantine act offenses or other COVID related measures across the country.
00:14:02.540 And, you know, we represent other people as well, sometimes through our in-house counsel,
00:14:06.220 sometimes through trusted counsel, whom we use. Recently, we were defending pastor Arthur
00:14:15.100 Pavlovsky before the courts in Alberta and Sarah Miller was our lawyer for that.
00:14:22.860 Okay, great. Well, so, I mean, you mentioned it's democracyfund.ca and that's where people can reach
00:14:28.700 out to you. I mean, if they need legal representation or if they want to support you guys and your work,
00:14:32.940 are there other areas where they can help you guys out? Well, you know, I think that's it. We're
00:14:39.180 an organization that doesn't take any money from the government. If they would like to support us,
00:14:44.780 we always appreciate that because that's the only way we can do our work. If somebody has a legal
00:14:51.260 problem and it falls within our mandate as a charity, then we'll look at that problem and we'll see if we
00:14:56.780 can help. Great. Well, I really appreciate you coming on to talk to us today about what you guys have been
00:15:02.780 doing and I do appreciate the work you're doing. Organizations like yours, as you said, the
00:15:07.660 government's certainly not going to help you out when the government's been the one that's been
00:15:11.180 infringing on people. We kind of need to help ourselves. And as you said, we need to support
00:15:15.420 groups like yours in order to do that and make sure our rights are maintained. So I thank you again
00:15:20.220 for coming on and I really hope you can get some answers through this action on the Arrive Can.
00:15:25.420 Well, thanks, Cory, and it's been a pleasure.
00:15:26.780 All right. Thank you. I'm sure we'll talk again.
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00:15:57.580 We'll see you next time.