Legal challenges to the federal quarantine hotel policy continue to work their way through the courts, with another decision that was released on April 23. This decision was a minor procedural setback that will not have a bearing on the challenge to the policy. But the decision has attracted significant attention and is worth understanding.
Friday’s decision was about a request by the Justice Centre for Constitutional Freedoms (JCCF) and some individual travellers to temporarily suspend the quarantine hotel policy until the full legal challenge can be heard, later this year. The JCCF and these travellers were seeking what is called an injunction, which would suspend the quarantine hotel policy, because individuals are being harmed while they wait for the full challenge to be heard.
The Federal Court, which heard this case, denied the injunction and decided that the quarantine hotel policy will remain in place for the time being. This was not a decision on the merits of the case, and the decision to deny the injunction was consistent with a similar case brought by the Canadian Constitution Foundation (CCF) earlier this year.
Injunctions are difficult to obtain, especially when they relate to constitutional challenges. The standard for obtaining an injunction is extremely high. The travellers in this case and in the CCF’s case earlier this year needed to prove three things.
First, they need to show that there is a serious issue to be tried. This means that the JCCF and the CCF needed to show at a preliminary level that they have a real case, and that their claim is not frivolous or vexatious. The JCCF and the CCF both succeeded on this branch of the test. The court in the CCF’s challenge found that travellers have made out that there is a serious issue to be tried related to their Charter protected liberty interests. Likewise in the JCCF case, the court found that there is a serious issue to be tried related to Charter protected right to liberty and to be free from arbitrary detention.
This should not be confused with a victory on the merits. The judges in both cases made it clear that this is merely a cursory look at whether rights are in play or not. Justice William Pentney in the JCCF case held “this is not – and should not be understood to be – a pronouncement on the merits of the argument; rather, it is a finding that the applicants’ argument on this ground should not be dismissed at this early stage of the proceeding.” However, this finding is still meaningful for the many thousands of people who want some acknowledgement that their rights are being impacted by this policy. Their claim that this policy is doing harm can no longer be dismissed out of hand as mere complaining. There is a serious issue to be tried in these cases about whether the quarantine policy is unconstitutional.
Unfortunately for travellers, succeeding on the first branch of the test for an injunction is not enough to result in a temporary suspension of the law. The test for an injunction also requires the applicants to show that they will suffer irreparable harm, and that the balance of convenience favours granting the injunction.In both the JCCF case and the earlier CCF case, the court found that neither of those criteria were met and denied the injunctions.
While it means that the quarantine hotel policy will remain in place for now, it has no bearing on the ultimate decision on the merits of either of these cases, which are both continuing to proceed. At the hearing of the merits, the government has burden to prove that the law is a justified limit on our rights, and they will need to present evidence to prove this case.
And these are hearings that all Canadians, not just travellers, should pay attention to.
This article was originally published in the Toronto Sun.