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

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00:00:50.600 that application, the federal government rescinded all COVID-19 related border measures.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00:00:58.040 they're now trying to do is to say that because they've rescinded all those measures, our application,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.

Western Standard - February 09, 2023

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

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