BRIAN DOODY, MA, LLB

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DOODY COUNSEL LEGAL SERVICES
6-400 Daly Avenue | Ottawa | Ontario | K1N 6H2
E-mail: doodycounsel@gmail.com | Fax: (226) 785-0957
Telephone/text: (519) 872-1905 | Twitter @DoodyCounsel

February 11, 2022

Rt. Hon. Justin Trudeau, PC, MP

Office of the Prime Minister and Privy Council
80 Wellington Street
Ottawa, Ontario K1P 5K9

Dear Sir:

Subject: Truckers vs. PC 21-1050 (Quarantine Order No. 13): Avenues for dialogue

The Minimizing the Risk of Exposure to COVID-19 in Canada Order (Quarantine,

Isolation and Other Obligations) is the name of an Emergency Order first made by the
Governor in Council (the federal Cabinet) pursuant to section 58 of the Quarantine Act
(the Act) on Jan. 6, 2021. It was published in Part 1 of the Canada Gazette (Volume 155,
Number 3) on Jan. 16, 2021. The Order was subsequently “Repealed and replaced”
twelve times in 2021 (on Jan. 20, Feb. 14, Mar. 19, Apr. 21, May 21, June 21, July 1,
July 20, Aug. 9, Sept. 15, Nov. 20, Dec. 20) according to the Public Health Agency of
Canada’s “List of Acts and Regulations,” published on the official website Canada.ca.

At the time of writing, the online “List of Acts and Regulations” indicates that P.C. 2021-
1050—the 13th version of the named “Quarantine Order”—is the order currently “in force.”

Subsection 58(1) of the Act states that “[t]he 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” [underline added]. Subsection 58(2) of the Act
states that the “order has effect for the period specified in it and may be renewed”.

One “class of persons” in Quarantine Order No. 13 that prohibits or subjects Canadian
truck drivers expressly to conditions or requirements upon entry by land into Canada is
set out at Schedule 1, Table 2, Item 12, within the class of “[a] person in the trade or
transportation sector who is important for the movement of goods or people, including a
truck driver or crew member on any aircraft, shipping vessel or train, who enters Canada
for the purpose of performing their duties as a member of that sector.” [underline added]

Subsection 1.3(1) of Quarantine Order No. 13 authorizes the Chief Public Health Officer
of Canada to “take immediate public health measures to minimize the risk of introduction
or spread of COVID-19 by imposing conditions or requirements on any person or
member of a class of persons exempt under this Order from any requirement … in it”.

As it read on Dec. 20, 2021, Quarantine Order No. 13 at “Schedule 2 … Exempted

Persons—Various Requirements, Table 1, Quarantine,” at Item 4, exempts “[a] person or
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any member of a class of persons who complies with all conditions imposed on them by
the Chief Public Health Officer to minimize the risk of introduction or spread of COVID-
19 and if, as determined by the Chief Public Health Officer, (a) the person or any
member of a class of person enters Canada to provide an essential service; and (b) the
requirement to quarantine themselves in accordance with … this Order would adversely
affect the ability of the person to provide the essential service” [underline added].

By virtue of subsection 7.19(2) of Quarantine Order No. 13, section 7.14 of that same
Order came “into force” on Jan. 15, 2022 and “replaced” paragraph (a) of Item 4 of Table
1 of Schedule 2 of that same Order, as follows: “(a) there are compelling reasons, based
on public interest, for their entry to provide an essential public service.” [underline added]

Around Jan. 15, 2022, the Chief Public Health Officer, pursuant to subsections 1.3(1)
and (3) of Quarantine Order No. 13, imposed the Immediate Requirement for Non-Fully
Vaccinated Operators of Commercial Vehicles Transporting Goods by Land to be
Subject to Pre-Arrival Testing, Testing in Canada and Quarantine (Quarantine Decision).
The Quarantine Decision applies to truck drivers, but not to railway operators, who “enter
Canada by land as the operator of a commercial vehicle transporting … goods by land.”

The truckers’ Charter rights, to “liberty” and “the right not to be deprived thereof except in
accordance with the principles of fundamental justice” (s. 7), and to “equality” (s. 15), are
arguably raised by the Quarantine Decision, which imposes conditions and requirements
on truck drivers as a separate group of persons whereas the Act at section 38 states that
only the Governor in Council can create a specific “class of persons” by way of an order.

The Quarantine Decision treats truck drivers differently from railway and other workers in
that transportation sector (notably those at Item 12, Table 2 of Schedule 1 of Quarantine
Order No. 13), who are allowed to enter Canada by land to provide an essential service.

Despite the changes to Quarantine Order No. 13 that came into force in January 2022, a
Chief Public Health Officer’s decision-making authority is limited to the list of “factors” at
subsection 1.3(3) of Quarantine Order No. 13, none of which refers to essential workers.

Even presuming that the Quarantine Decision is “prescribed by law” within the meaning
of section 1 of the Charter, imposing conditions and requirements only on truck drivers is
not rationally connected to the objective of imposing conditions on a “class of persons.”

To address these allegedly arbitrary distinctions, one option may be to make a new order
that distinguishes non-vaccinated trucking, railway and other “essential service” workers.
Another may be for Parliament to state the Quarantine Act operates despite the Charter.

These views are respectfully submitted to the public with the goal of promoting dialogue.

(S) BRIAN DOODY (COUNSEL)

Brian Doody, MA, LLB

Lawyer | Avocat (Version française disponible sur demande)