On February 14, 2021, Order in Council PC 2021-75 (the “Order”) came into effect nationwide. The Order established a number of requirements to prevent the entry of COVID-19 variants into the country, including a requirement for travellers returning to Canada to book pre-paid accommodation at a government-authorized facility for three nights. The Ontario Superior Court of Justice and the Federal Court of Canada had the opportunity to consider the constitutionality of the hotel quarantine requirement at a preliminary stage in two recent decisions: Canadian Constitution Foundation v. Attorney General of Canada (“CCF”) and Spencer v. Canada (Attorney General) (“Spencer”). In both cases, the applicants sought an interlocutory injunction to prevent the Government of Canada from requiring air travellers who return to Canada to quarantine at their own expense in a hotel while awaiting the results of a COVID-19 test.
In CCF, the applicants argued that the cost of hotel accommodation prevented them from leaving or returning to Canada freely, unjustifiably deprived them of their liberty, and amounted to arbitrary detention or cruel and unusual punishment. The applicants claimed that they experienced differential treatment from individuals who arrived by car, who, unlike air travellers, are permitted to quarantine at home.
Whereas the claims of the applicants in CCF were primarily focused on the cost of accommodation, the applicants in Spencer emphasized the broader constitutional implications of the hotel quarantine requirement. Specifically, they alleged that the Order infringed their rights under sections 6, 7, 9, 10(b), 11(d), 11(e), and 12 of the Charter of Rights and Freedoms (“Charter”).