Some Canadians on social media have been suggesting that travellers can reject a Covid test when returning to Canada from an international trip, claiming the test would be a violation of Section 14 of the federal Quarantine Act.
The Trudeau government resumed its controversial mandatory random Covid-19 testing program for fully vaccinated air travellers Tuesday, despite Canadian airports being plagued with major delays. The testing will now be done offsite.
Section 14 of the Act refers to screening technology and states that “any qualified person authorized by the Minister may, to determine whether a traveller has a communicable disease or symptoms of one, use any screening technology authorized by the Minister that does not involve the entry into the traveller’s body of any instrument or other foreign body.”
Many Covid-19 tests do penetrate the body, including common PCR tests that are performed with a nasal swab.
With that said, does the Quarantine Act prohibit the government from mandating on arrival Covid tests for travellers? True North reached out to the Justice Centre for Constitutional Freedoms (JCCF) to find out.
“It appears that… (s. 14 of the Quarantine Act) refers to normal screening when people entering Canada go through customs. It basically authorizes customs officers to use non-invasive techniques to screen for illnesses,” said JCCF barrister and solicitor Hatim Kheir.
“The mandatory Covid testing, on the other hand, is authorized by an Order-in-Council under s. 58 of the Quarantine Act,” he added.
Orders-in-Council are a type of legislation drafted by cabinet and issued by the Governor General of Canada. They are adopted without debates or votes in parliament.
Kheir told True North that “section 58 allows the government to make emergency orders ‘subjecting to any condition the entry into Canada of any class of persons who have been in a foreign country’”.
He added that the wording of section 58 gives the government broad powers which are likely not limited by section 14 of the Act.
However, Kheir says that the matter is “not particularly clear” and hence it could be reasonably argued in court.
It should be noted that the courts previously ruled in favour of the federal government’s strict Covid travel restrictions.
The Federal Court of Canada found in 2021 that the Trudeau government’s mandatory hotel quarantine program for those returning from abroad was constitutional.
“The finding that detention of thousands of law-abiding Canadians in federally mandated facilities does not violate their Charter rights is a blow to our democracy and our Charter,” JCCF lawyer Sayeh Hassan told the Law Times following the court’s decision.
However, the JCCF says the lawsuit resulted in the feds changing their hotel quarantine policy to state that Canadians being detained the right to legal counsel without delay.
The Trudeau government’s current border restrictions, including vaccine mandates and testing requirements, are set to remain in place until at least September 30.
True North also reached out to the Government of Canada for comment but they did not respond in time for publication.
