The Federal Government has invoked provisions of the Quarantine Act to require returning travellers to Canada to quarantine for fourteen days, in order to stop the spread of COVID-19.
The Quarantine Act allow for maximum fines of up to $750,000 and up to six months in prison for violating its provisions. If the violation puts the health or safety of others at risk, or risks spreading the virus, the fines are elevated. In those circumstances, the fines are up to $1 Million and up to three years of jail time.
But is this realistic?
In Canadian law, there is a prohibition on cruel and unusual punishment. This prohibition is enshrined in Section 12 of the Charter of Rights and Freedoms. And cruel and unusual punishment can mean more than just torture or indeterminate terms of imprisonment.
In 2018, the Supreme Court of Canada found the mandatory victim fine surcharge provisions of the Criminal Code unlawful and unconstitutional. These provisions permitted the Crown to imprison people who had not paid additional taxes on their fines, or as a result of conviction.
Because the victim fine surcharges could lead to imprisonment for people who had otherwise been sentenced for their offences, and disproportionately affected people who were of lower income, they were found to violate Section 12 of the Charter. Essentially, it is unconstitutional and legally invalid to impose a fine beyond the ability of a person to pay.
The same has been found to be the case when it comes to restitution orders. Judges have had sentences overturned where restitution was ordered, without an inquiry into the offender’s ability to pay. The restitution orders were found to be unlawful, given that they could never be repaid and the accused then faced the potential of jail time for failing to comply with the terms of the order.
The same is true of violating the Quarantine Act.
Most Canadians do not have the ability to pay fines in the thousands of dollars, much less the hundreds of thousands or a million dollars. The imposition of such fines would only occur in the most extreme and egregious cases, where an individual was of significant financial means.
Additionally, although there are lengthy jail terms available for violating the Quarantine Act, these are unlikely to be imposed.
As I wrote for The Lawyer’s Daily, the reality is that no one will be convicted of a violation of this Act while the pandemic is ongoing. Once the pandemic has ended, the deterrent effect of a jail sentence will likely not be as significant as the deterrent effect of a fine. This is because of the economic consequences we are expecting once the state of emergency is rescinded.
Of course, given the above, the fines that will be imposed will be fines that are significant having regard to the financial circumstances of the individual convicted of violating the Quarantine Act, not the financial potential contemplated in the Act itself.
If you violate the Quarantine Act, you can expect to face significant consequences. But don’t expect to face a one million dollar fine, or a three-year jail term. This simply won’t be the case.
