A constitutional rights advocacy group has launched a legal challenge against federal Health Minister Jean-Yves Duclos over the government’s use of the ArriveCan app, saying the app’s collection and use of private health information is a breach of Canadians’ Charter rights.
“The federal government has been using ArriveCAN to compel anyone entering Canada to provide them with personal information about themselves, including intimate details of their health and personal choices,” the release said.
“Failure to do so can result in fines exceeding $6,000 once surcharges are applied. Some households who have crossed the border together face cumulative fines, which are financially devastating.”
“Mr. Tilbury did not provide mandatory travel and health information through ArriveCAN as this information would tend to reveal intimate details of his health, lifestyle and personal choices, including information which may lead to stigmatization and discrimination,” the document says.
Collecting Private Information
The ArriveCan app, launched nationally in April 2020, was co-created by the Canada Border Services Agency (CBSA) and the Public Health Agency of Canada (PHAC) for the purpose of supporting the Government of Canada’s “efforts to limit the spread of COVID-19,” according to the government’s website.“The personal information collected by the CBSA, whether it be through the paper form, the online form, or the App, is provided to PHAC for their enforcement of the Quarantine Act,” the website says. “Information can be shared (by PHAC) with provinces and territories, as well as with law enforcement, to monitor and enforce compliance with the traveller’s requirement to quarantine or isolate.”
Under the Quarantine Act, the Governor in Council may make an order prohibiting, or subjecting to any condition, the entry into Canada of any class of persons who have been in a foreign country, when the Governor in Council finds that there is an outbreak of a communicable disease in the foreign country and allowing members of that class of persons to enter into Canada may result in the introduction of that disease, which could pose “an imminent and severe risk” to the country’s public health, and that no alternatives are available to prevent the introduction of the disease.
The order requires every person entering Canada to provide to the Health Minister, a screening officer, or a quarantine officer, a suitable quarantine plan or their contact information. They must also disclose the countries they have been to over the past 14 days, their COVID-19 vaccination status, and their addresses for quarantine.
This information must be provided by an “electronic means,” as specified by the Minister of Health, unless the person is a member of an exempted class.
The group said its lawyers argue that “the Quarantine Act does not confer jurisdiction on the government to compel persons entering Canada to disclose intimate details about their health and personal choices under threat of fines or imprisonment.”
“The mandatory disclosure of personal information is an unreasonable and unjustifiable infringement against privacy interests, which are protected by the Canadian Charter of Rights and Freedoms,” TDF said in the release.
Health Canada has defended the app’s collection of private information.
Beyond the Pandemic
TDF noted that the federal government has also admitted that the information collected through the ArriveCan app could be used for other objectives beyond pandemic management.“The Government of Canada has admitted that this information is not only about ‘keeping Canadians safe.’ It is also being used for other unclear objectives, such us modernizing border control,” TDF said in the release.
“ArriveCAN was originally created for COVID-19, but it has technological capacity beyond that,” Mendicino said.
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