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R. v. Fernando

R. v. Fernando, also known as His Majesty the King v. Meththa Fernando, was a case in the Ontario Court of Justice involving the Quarantine Act and mandatory COVID-19 testing requirements for air travellers. The official citation is R. v. Fernando, 2024 ONCJ 336, and the court file number is 3111-999-00-3261751F-00. Amit Gurpersaud represented the Crown, while Chris Weisdorf assisted Meththa Fernando in a non-lawyer capacity.[1]

Background

On March 31, 2022, Canada's Governor General Mary Simon issued Order in Council 2022-0321.[2] The order "provides for, among other things, pre-arrival COVID tests and arrival tests, including random tests" by polymerase chain reaction (PCR).[1:1]

Meththa Fernando arrived at Toronto Pearson International Airport on April 9, 2022. Aliel Roxas, a screening officer with the Public Health Agency of Canada's Centre for Border and Travel Health,[3] identified Fernando by random selection to undergo a nasal swab test for SARS-CoV-2, which she refused.[1:2]

Initial trial

At trial, Fernando argued that the Quarantine Act "did not authorize a screening officer to use a screening test which involved the entry into the traveller’s body of an instrument or other foreign body."[1:3] Specifically, section 14 of the Act reads:[4]

"Screening technology

  • 14 (1) Any qualified person authorized by the Minister may, to determine whether a traveller has a communicable disease or symptoms of one, use any screening technology authorized by the Minister that does not involve the entry into the traveller’s body of any instrument or other foreign body.

Refusal to be screened

  • (2) If a traveller refuses to be screened with the screening technology and the person using it is not a screening officer or quarantine officer, the person shall immediately inform a screening officer or quarantine officer of the refusal."

Fernando also attempted to make arguments under the Canadian Bill of Rights, but was denied the opportunity by a Justice of the Peace.[1:4] She was convicted of failing to comply with an order under section 58 of the Quarantine Act and ordered to pay a total fine of $6,255.[1:5][5]

Appeal and decision

Fernando appealed the ruling and fine to the Ontario Court of Justice with the assistance of Chris Weisdorf, a "non-lawyer... who was helpful to her and to the Court."[1:6]

Justice Paul Monahan found that the nasal swab is "an instrument" or "foreign body," and thus the test satisfied the criteria for "insertion into the body." He concluded that the test required of Fernando by Roxas "was an unlawful requirement or demand," and that "Ms. Fernando’s refusal to comply with the requirement or demand was lawful on her part." He reversed the prior decision and entered a finding of not guilty.[1:7]

Aftermath

Despite the favourable decision, some social media users argued the decision was "too little, too late." Lawyer Daniel Freiheit was more optimistic, stating that the decision "will be mostly relevant for anyone who pled guilty or paid a fine under Section 58 of the Quarantine Act, for refusing to submit to Trudeau's hired PHAC officers when they demanded travellers force wires into their sinus cavities.”[6]

Further reading

  1. R. v. Fernando, 2024 ONCJ 336 (CanLII). Retrieved July 12, 2024, from https://www.canlii.org/en/on/oncj/doc/2024/2024oncj336/2024oncj336.html ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎ ↩︎

  2. Order In Council 2022-0321. (2022, March 31). Government of Canada. https://web.archive.org/web/20240712142039/https://orders-in-council.canada.ca/attachment.php?attach=41803&lang=en ↩︎

  3. Aliel Roxas. GOC411. Retrieved July 12, 2024, from https://web.archive.org/web/20240712121956/https://www.goc411.ca/en/400076/Aliel-Roxas ↩︎

  4. Quarantine Act, SC 2005, c 20, s 14. Retrieved July 12, 2024, from https://canlii.ca/t/7vzv#sec14 ↩︎

  5. Quarantine Act, SC 2005, c 20, s 58. Retrieved July 12, 2024, from https://canlii.ca/t/7vzv#sec58 ↩︎

  6. Ontario court rules PCR test for returning air travellers violated Quarantine Act. (2024, July 11). Rebel News. http://archive.today/2024.07.11-224322/https://www.rebelnews.com/ontario_court_rule_pcr_test_for_returning_air_travellers_violated_quarantine_act ↩︎