Trudeau government invoked cabinet secrecy on COVID quarantine hotel decision, shielding it even from court

Cabinet confidence exists so that ministers can have rigorous debate without being worried about public perception

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The federal government claimed cabinet confidentiality over its discussions on COVID-19 mandatory quarantine hotel rules, shielding what was behind the decision even from the scrutiny of the Chief Justice of the Federal Court at a trial challenging the constitutionality of the controversial rules.

“Cabinet confidentiality has been claimed, so, none of us today can say what was actually before cabinet when they made their decision,” lawyer Robert Hawkes complained to the court.

“What we are left with is contextual evidence that the government has put forward to say ‘even though we won’t tell you what was before the folks who made the decision, we can tell you what was generally available at that time.’”

The Federal Court is hearing four similar but separate challenges of Canada’s quarantine hotel rules and about 10,000 pages of documents have been filed, including testimony of some of Canada’s top COVID-19 response officials.


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Unlike lawsuits against most government decisions, however, none of the information discloses the actual direct information and basis for the decision, court heard.

Cabinet confidence exists so that ministers can have rigorous debate without being worried about public perception. That confidence is protected for 20 years, unless the prime minister agrees to lift it.

Hawkes represents Rebel News Network and employee Keean Bexte in their challenge of the quarantine hotels. Two other challenges are filed by groups of people represented by the Justice Centre for Constitutional Freedoms, and the fourth challenge is on behalf of Dominic Colvin, the CEO of a cannabis company, represented by Jeffrey Rath.


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At issue is the federal government’s COVID-19 control measures that require air travellers arriving in Canada to pre-book at their own expense a three-day non-refundable stay in a government-authorized hotel and remain in quarantine there until a second COVID test confirms they are not carrying the novel coronavirus.

The federal government implemented the rules in February through an Order-in-Council by the cabinet.

On the final day of the court hearing before Chief Justice Paul Crampton, lawyers for the federal government said the information available to cabinet was the best available during a hectic time as new variants of COVID-19 were spreading.

“What is at issue is the reasonableness of the administrator’s and council’s opinion that the measures would meet the objective, not whether they actually meet the objective,” said Sharon Stewart Guthrie, on behalf of the federal government.


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The decision would have been based on scientific data “while the knowledge was still evolving, with respect, for example, to transmissibility, virulence of variants or the impact of vaccines. The uncertainty is acknowledged, and a cautious approach was taken,” Stewart Guthrie said.

“It was reasonable for the administrator and council to form the opinion that the three-day mandatory hotel quarantine would meet the Order-in-Council’s objectives and there was no other reasonable alternative to do so.”

Sharlene Telles-Langdon, who leads the federal government’s defence, said the stakes during a pandemic are exceedingly high and require limitations on freedoms.

“We are living at an exceptional time in history. Over the course of the pandemic, now moving into its 16th month, multiple public health measures are implemented provincially, nationally and globally that have necessarily limited individual’s liberties in order to protect the health and lives of others in society,” Telles-Langdon said.

“Curfews, stay-at-home orders, mandatory business closures, limitations on gatherings, at times prohibitions from gathering with anyone outside your own household — all of these measures engage individual’s liberty interests in order to protect public health.

“The virus itself does not have legs. It depends on individuals to move it around the globe and through the nation.”


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Lawyers for the applicants told Crampton the expensive, forced quarantine stays amounted to detention that was arbitrary, with no presumption of innocence, no ability to be judicially reviewed, imposed on citizens not notified of their right to counsel.

Sayeh Hassan, a lawyer for the Justice Centre for Constitutional Freedoms, said there were less invasive alternatives, such as targeting public health attention to those most vulnerable to the virus, and not “the thousands and thousands of healthy travellers” who can quarantine on their own.

Hawkes said the government could give arriving air travellers a choice, to go to a quarantine hotel or to take their own vehicles directly home to quarantine and await the results of the COVID-19 regime.

Crampton reserved his decision.

“You’ve given me lots to think about,” he said, “and I certainly have lots to read.” He promised a decision as soon as possible because “the issues you raise are time-sensitive in nature.”

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