B.C. woman's bid to overturn $1,500 Quarantine Act ticket rejected in court

Canada's ArriveCan app log in screen is seen on a mobile device, Monday, Feb. 12, 2024 in Ottawa. THE CANADIAN PRESS/Adrian Wyld

A B.C. woman's attempt to overturn a ticket she received for refusing to use ArriveCan when entering Canada in June 2022 – and in the process overturn large portions of the legal framework that governs the app – has been dismissed.

Nithya Geetapriya Ananda, also known – and referred to in the court's decision – as Joanna Lasoka, disputed the ticket in provincial court and lost. She was convicted, but the trial judge reduced the fine she would owe from $5,750 to $1,500.

Lasoka appealed the provincial court's decision to the B.C. Supreme Court, alleging that the lower court judge had made errors and that procedural irregularities had created a miscarriage of justice.

B.C. Supreme Court Justice Matthew Taylor rejected Lasoka's arguments in a decision issued late last week, concluding that the lower court was correct in determining that her case had "absolutely no chance of success." 

The appellant's argument

Taylor's decision notes that Lasoka was self-represented during trial, "and her argument was at times difficult to follow."

She told the court she was not basing her case on whether she complied with the ArriveCan regulations that were in place when she entered Canada at the Peace Arch border crossing on June 21, 2022, but rather on those regulations' alleged infringement on the Canadian Bill of Rights.

Though the Bill of Rights was largely superseded by the Canadian Charter of Rights and Freedoms, Lasoka emphasized that her argument was based solely on the 1960 legislation and not in any way on the Charter.

Quoting directly from Lasoka's submissions, Taylor summarized her argument in his decision as follows:

"(The regulations) interfere with the appellant's right to liberty, security of person and enjoyment of property as well as the right to equal treatment and protection of the law afforded in the Canadian Bill for Rights."

"The Quarantine Act regulations infringe on the appellant's rights in the manner in which they were applied against her. Given the fact that:

1. There were two categories of people created and treated differently, vaccinated and unvaccinated, and those categories of people were treated differently.

2. The ArriveCan tool violated my right to privacy and was above and beyond a 'reasonable measure' to prevent the introduction or spread of a communicable disease.

3. The (Order in Council) listed roughly 40 different categories of people who were exempt from the regulations and the Contraventions Act was not applied equally to all Canadians and this is a violation of equal treatment and protection of the law."

The 'fundamental flaw'

Generally, when a plaintiff seeks to overturn a law on constitutional grounds – such as when the law unreasonably infringes on protected rights – the presiding judge will first make what is known as a "Vukelich ruling," so named for the case in which it originated.

The judge typically holds a voir dire, or a trial within a trial, to review the evidence and decide whether a hearing on the constitutional question should proceed.

Lasoka did not notify the court in advance that she intended to make a constitutional argument, according to Taylor's decision. This left the trial judge in the position of making both a Vukelich ruling and a final decision on the case at the same time, something he decided was reasonable to do because there was no prospect of Lasoka's arguments succeeding.

On appeal, Taylor agreed with this assessment.

"Regardless of whether the provincial court judge’s decision is characterized as a Vukelich ruling or a trial decision on the merits, my view is that the provincial court judge made no error in dismissing the application," Taylor's decision reads.

"This is because the fundamental flaw in the appellant’s argument was the same in either scenario, namely, her complete failure to particularize the nature of her Bill of Rights application, the remedy sought, or to adduce any evidence in support."

Lack of evidence

Lasoka didn't call any evidence at trial, according to the decision.

This meant she didn't introduce any evidence about her vaccination status, and the decision notes she "refused to do so," thus failing "to demonstrate a status either way that could form a basis for her own claim of inequality," the decision reads.

Likewise, she did not produce any evidence to support her argument that ArriveCan required people to disclose their vaccination status, nor to refute the Crown's explanation that it did not.

"Despite her vague allegation about differential enforcement across provinces, the appellant did not adduce specific evidence or examples of differential federal contravention policies and fines in different provinces or how these alleged differential enforcement regimes created inequality for her in British Columbia," the decision reads.

"Moreover, she failed to address the more fundamental fact that, regardless of differing enforcement regimes across Canada, her actions were indisputably and equally a contravention of the federal Quarantine Act in every province in Canada, regardless of how that contravention might be enforced in different provinces."

As for her allegation that the regulations created "exemption categories" that were constitutionally problematic, Lasoka again failed to provide any evidence "of what she was referring to or how her personal characteristics placed her in a meaningful position of inequality," according to the decision.

The arguments about privacy were similarly unsubstantiated, Taylor concluded, noting that Lasoka didn't specify what protected private information ArriveCan compelled her to reveal, nor why whatever information it did require created a specific privacy concern for her.

"The appellant adduced no evidence or explanation as to why the downloading of ArriveCan itself (which she refused altogether to install on her phone) was problematic for her from a privacy perspective, nor did she specify which questions or sections in ArriveCan caused a privacy concern or why," the decision reads.

"The appellant also did not specify whether it was only ArriveCan itself which was constitutionally problematic or whether her claim was broader and extended to any requirements under the (Order in Council) or the Quarantine Act that information be divulged by travellers at the border."

Accordingly, Taylor dismissed the appeal, concluding that other procedural issues Lasoka raised regarding her provincial court trial did not create any fundamental unfairness or result in a miscarriage of justice.