A court document filed by a legal advocacy group alleges that the ArriveCAN app requirement was not properly specified by the minister of health.The Democracy Fund (TDF) has filed a Notice of Constitutional Question in the Ontario Court of Justice over an ArriveCAN ticket issued to one of their “fight-the-fines” clients, Janet Seabrooke. The resident of Merrickville, ON was given a ticket September 8, 2022, in Mississauga."The Applicant had a reasonable expectation of privacy in the information that she was ordered to disclosure through ArriveCAN as it would reveal intimate details about her health, lifestyle and personal choices. This privacy interest is protected by section 8 of the Canadian Charter of Rights and Freedoms, which guarantees the right to be free from unreasonable search and seizure," the court application states."The screening officer’s demand that the Applicant disclose her personal information was a demand that Applicant submit to a search and seizure. In order for that demand to be reasonable, it had to be authorized by law."While the Government of Canada has claimed that ArriveCAN was legally required starting in November 2020, TDF argues that the orders-in-council that purport to establish ArriveCAN make no reference to ArriveCAN. Rather, the orders say that information must be provided by an “electronic means specified by the minister of health.”The question is, when and where did the minister of health specify ArriveCAN to be the electronic means referred to in the orders in council? TDF’s litigation director, Alan Honner, says he made several inquiries to government ministries about when and where the minister of health actually specified ArriveCAN to be the electronic means set out in the orders in council. He never received an answer.The only document TDF uncovered which specifies ArriveCAN as the electronic means set out in the orders-in-council is dated November 26 2021, more than a full year after ArriveCAN was supposed to become legally mandatory.“There is a real question about whether the government actually took the steps to make ArriveCAN legally binding on travellers prior to November 2021,” says TDF Litigation Director Alan Honner. “If the Minister of Health failed to make the specification as required by law except for this one time, then for at least an entire year, the government was telling us that ArriveCAN was legally required when it was not.”TDF had previously filed an application in the Federal Court of Canada making this same argument. That application was dismissed for mootness because all COVID-19 border measures were rescinded within weeks of TDF filing its court documents.TDF will be arguing at the upcoming trial that the November 26 document does not apply to their client. Among other things, the document refers to an order in council that was rescinded and not to the order in council that their client was charged with breaching.“The good news is that the application cannot be struck for mootness because we are dealing with an active ticket,” says Honner. “The bad news is that the prosecution can avoid the argument by dropping the charges.” The trial will take place on February 15 2024.
