Hotel Canada: A Stay to Remember

In February 2020, Canada’s Health Minister Patty Hajdu delivered a very earnest lecture explaining Canada’s circumspect approach to border closures in the face of horrific news from Italy and Wuhan. Parroting the orthodoxies of the World Health Organization, Hajdu explained why, unlike Australia and the USA, Canada did not intend to shut down the border with China in spite of the increasingly grim news from Wuhan:

It’s much easier to support a traveller from a region experiencing an outbreak if you know where they’re coming from… and when you shut down a border like that, it gets much harder to detect where they’re coming from…. and shutting down borders aren’t very effective in controlling disease.

Hajdu also praised China for their “openness” in disclosing the outbreak and sequencing the virus, noting that global health depended on ‘transparency’ and countries needing to be free from fear of border closures and reprimand by the international community.

A year later, Hajdu struck a notably different tone at a House of Commons public safety committee hearing. Canada’s borders had been closed to all non-citizens for more than a year. Additionally, the Liberal government led by Prime Minister Justin Trudeau had mandated a draconian practice of quarantining all arriving passengers in government-approved hotels to the tune of $2,000 (CAD) for a three-day stay.

Conservative Party health critic Michelle Rempel Garner recounted a harrowing recent sexual assault which had allegedly occurred at the government’s newly mandated hotel quarantine facilities, demanding to know what data justified forcibly confining Canadian citizens to monitored hotel rooms.

This time, Hajdu’s response was different. “Every woman deserves to be free of violence and a life of dignity”, she noted.

But, these border measures are in place to protect Canadians, and they will remain in place until science and evidence indicate that it is safe to release them.

How did we get here? Canada ranks ahead of the United States on the Human Freedom Index. It has an entrenched bill of rights in the form of its Charter, and a generally permissive culture. But emergencies turn countries topsy-turvy. Much of Canada’s national destiny rests outside of its control. National budgets have long skimped on defence investment, under the unspoken assumption that our military-superpower neighbour and ally to the south would intervene were Canada ever to come under foreign threat. Canada has been in the happy circumstance to seamlessly flit from being the dearest ally of the world’s last two great powers (the United Kingdom and the United States, naturally). Yet its British constitutional heritage has meant that it generally lacks a widespread culture of liberty, and so it wasn’t entirely surprising that a parochial and draconian pandemic response turned out to prevail.

During the pandemic’s first wave, Canada’s Atlantic provinces of Nova Scotia, Newfoundland, New Brunswick and Prince Edward Island pursued an aggressive ‘COVID zero’ approach. These provinces banned all who did not reside in the province from entering. The bans were cruelly absolute: immediate family members could not be permitted to attend funerals (even if willing to quarantine), married couples residing apart were not permitted to visit, Canadians from other provinces were barred, for a period, from accessing their properties in Atlantic Canada.

These regulations were contrary to the division of powers between the federal and provincial governments set out in the Constitution Act, 1867 and without any regard to the interprovincial mobility rights set out under section 6 of the Charter of Rights and Freedoms.

In a particularly egregious incident given the marginalized status of Indigenous people in Canada, children living on Mi’gmaq First Nation reservation across New Brunswick’s Western border in rural Quebec were barred from attending school in New Brunswick. This forced the students to learn by Zoom while their non-Indigenous New Brunswick counterparts were permitted to attend school in person.

Towards the end of 2020, as the virus’ second wave crested over much of the country— and particularly in its most populous provinces of Ontario and Quebec—the national mood grew tense. Cases were surging, vaccines were still firmly out of reach thanks to a botched national procurement strategy, and the country settled into a particularly bleak winter.

Perhaps as a diversion from the frigid misery at home, Canada’s national media took up a public witch hunt for politicians who deigned to fly south and escape from the bitter winter. No exaggeration: over December and January each day brought a new headline confirming that a Minister, Member of Parliament or political staffer had been caught escaping to Hawaii, Florida, or Arizona.

In the most notorious case, Ontario Finance Minister Rod Phillips was chastised for spending three weeks with his family in St. Bart’s. The most offensive part was that Phillips (or his staffer) filmed short videos with holiday greetings and a warning to continue to follow pandemic protocols filmed at his home in a Toronto suburb. The home videos were posted while he was later revealed to be enjoying aquamarine ocean and sun on one of the world’s most expensive islands. He flew home early and was confronted by a full coterie of reporters at the Toronto airport. A few days later, Phillips resigned.

In the wake of this national witch hunt for sun-worshippers, and lack of capacity to domestically manufacture vaccines (and an unwillingness to adopt Israeli-style strongman negotiation tactics with pharma companies), Canada began to tighten the screws on its border measures in early 2021. First, in early January the government announced mandatory pre-arrival PCR tests, in addition to existent 14-day home quarantine rules.

A few weeks later, Prime Minister Justin Trudeau went further and threw down a major gauntlet, announcing that arriving Canadians would soon be required to book and pay for “approved quarantine hotels.” Travellers would be responsible for the cost of a three-day stay to the tune of about $2,000 Canadian, including meals, as well as a second PCR test upon arriving in Canada.

The direct justification for the hotel quarantine was puzzling. Rather than impose a full 14-day hotel quarantine as implemented with some success in the island nations of New Zealand and Australia, Canada adopted a characteristically halfway measure. Travellers were to await the results of their PCR test taken immediately upon arrival in a government hotel, and once they had a negative result in hand, they were free to leave and complete a 14-day home quarantine. Even more irrationally, if an individual tested positive, they would be permitted to leave the hotel to isolate at home if they have a satisfactory quarantine plan. Which begs the question, what is the point?

Given that travelers already required a negative test taken within 72 hours to board the plane in the first place, testing positive upon arrival would be too infrequent to justify being detained for three days and a few thousand dollars. Transmission on airplanes is extraordinarily rare, and in any event the virus would not replicate enough to be caught right upon landing.

A diabetic man was left for nearly 24 hours without food. Nobody at the hotel picked up the phone to arrange for meals to be delivered.

The policy’s roll-out was an unmitigated disaster. Social media platforms were immediately flooded with videos showing a state of pandemonium in the government-approved hotels: crowded lobbies with hapless staff scrambling to accommodate individuals, some without masks, crumpled and tired from transcontinental flights. Many had reported waiting on backed-up government phone lines for up to twelve hours before departing for Canada in order to book their hotels.

When the state takes its citizens into custody, it has an overarching duty not to endanger them and to provide them with the necessities of life. However, this baseline of a liberal state’s responsibility was breached within a few weeks of the quarantine policy’s rollout.

To wit: one woman reported being sexually assaulted at a hotel near the Montréal airport by another hotel guest, who entered her room and refused to leave until she threatened to scream. The guest now faces one count of sexual assault, one count of breaking and entering, and one count of criminal harassment. It was reported that the locks at the quarantine hotel were inexplicably removed from their hotel room doors, leaving the occupants inside vulnerable.

A woman and her family returning from her father’s funeral in Portugal was forced into a government quarantine hotel and billed $3,500 for one night in a quarantine hotel. The woman later received a partial refund, but only after her story was trumpeted widely in the media. Even with negative Covid test results back within 12 hours, travellers were billed for the cost of the entire three-day stay they did not complete.

A diabetic man was left for nearly 24 hours without food. Nobody at the hotel picked up the phone to arrange for meals to be delivered.

In the face of this widely noted incompetence, many Canadians decided to simply skip the mandatory hotel quarantine, rolling their luggage out to an Uber defiant to possible later fines. (Because really, can a government that didn’t manage to hire enough phone operators—or even put up a booking website—credibly threaten to follow up with fines for all of the hotel-dodgers?)

The legal charity which I direct, the Canadian Constitution Foundation (CCF), along with five individual applicants, filed an urgent application on March 2nd seeking to have the quarantine hotel regulations struck down. We argue that the regulations are unconstitutional on the basis of violating the liberties and rights against arbitrary detention, cruel and unusual punishment and mobility guaranteed in the Canadian Charter.

All five individual applicants are seeking to travel outside for extremely compassionate reasons: one, T.J. Radonjic, needs to travel from Vancouver to Washington State to assist his wife who is recovering from shoulder surgery and unable to shower or cook. Another, Yann Le Héritte, is seeking to travel to France in order to make end-of-life arrangements for her 91 year old mother with dementia.

We argue that the quarantine hotel rules cannot be construed as “reasonable limits” on rights. The government itself failed to proffer any concrete evidence on why a three-day hotel quarantine, on top of existing requirements for a negative test and suitable home quarantine plan, was justified. The Minister of Health could only say that “the data was incomplete in terms of what combination of measures are needed” but that they hoped the hotel quarantine would provide “an extra layer of security for Canadians.” Less than two percent of cases in the country are connected to international travel.

The government’s lawyers emphasize the severe threat of the virus’ variants of concern— particularly those from Britain, South Africa, and Brazil, all of which by the time of the first hearing were spreading in communities across Canada. It noted that internationally-procured tests were liable to fraud.

Early indications from the courts have not been encouraging. On a preliminary injunction decision to bar the government from enforcing the quarantine rules— a procedure which carries an extraordinarily high standard— the judge dismissed the CCF’s motion for urgent relief against the quarantine hotel regulations. He found that “the applicants’ wish to choose to quarantine at home, and their spending priorities when they travel abroad during the pandemic, are decidedly first world, economic problems… that barely raise any discernible constitutional concern.”

The judge also deferred to the government’s submissions of “incomplete data” as “deeply-rooted in science and comprehensive public policy development” and dismissed the applicants’ claims that quarantine constitutes arbitrary detention or cruel and unusual punishment (even when deprived of meals for 24 hours’ as a diabetic, which is effectively life-threatening) as “frivolous.”

The hearing on the merits of this challenge has been scheduled for this summer.

What have all of these strict rules afforded Canada? According to the government’s stated rationale of protecting the country from variants, not much. The United Kingdom B117 variant is now dominant, representing about 75% of new cases. British Columbia is currently host to the world’s worst outbreak of the P1 variant outside of Brazil, with over 700 confirmed cases (including the majority of the Vancouver Canucks hockey team). Most likely, the variants arrived by way of the millions of truck drivers and essential workers who continue to cross from the United States into Canada and who are exempt from quarantine requirements, and not the tiny fraction of air travellers who were always subject to home quarantine and have been the targets of Canada’s pandemic theatre.

Where the United States is founded on “life, liberty, and the pursuit of happiness”, Canada’s founding maxim is “peace, order, and good government.” We were willing, throughout the first wave, to hunker down, stay home and receive government assistance cheques. But the balance has tipped, with poorly calculated and unjustified intrusions onto liberties, abject failures to institute proper test-and-trace systems, and to deliver vaccines. The situation shows little hope of abating, with Canada’s chief health officer, Theresa Tam, opining that lockdowns will be needed until the country reaches 75% vaccination—even though Israel and certain jurisdictions United States are re-opening safely at 40-50%. When the pandemic does finally end, one hopes Canadians will be open to reimagining a future that carves out more space for individual liberty.

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