Key Crown witness in ArriveCAN case fails to appear in court: All charges dropped against man who refused to use ArriveCAN app

Charges were dropped on Jan. 16, 2024, against a man who refused to use the ArriveCAN app after the Crown’s key witness – an officer for Public Health Agency of Canada – didn’t show up in court.

 Scott Bennett refused to use the ArriveCAN app when he arrived back in Canada and landed at Pearson International Airport on July 12, 2022.

He was ticketed for refusing to use the ArriveCAN to disclose his vaccination status.

“Mr. Bennett is obviously thrilled with this outcome, which is very positive for him personally,” said Chris Fleury, counsel for Bennett.

“At the same time, we are both disappointed that the constitutionality of the Federal Government’s decision to detain citizens based on their vaccination status may never see judicial scrutiny. Tomorrow morning, the Federal Government could make it mandatory for all returning Canadians to use ArriveCAN, and there would be no court ruling on the books about whether this mandatory requirement complies with the Charter.”

Bennett had filled in the back of the ticket, requesting an early resolution meeting with the prosecutor.  Legal counsel, who were supported by the Justice Centre for Constitutional Freedoms, attended that meeting and told the prosecutor that they intended to raise Charter issues to defend Bennett against prosecution. In particular, section 8 of the Charter that prohibits unjustified search and seizure, and section 9 that prohibits arbitrary arrest and detention.

At trial, the defence was prepared to argue that being forced to disclose vaccination status violates Charter section 8, and that the quarantine mandate violates Charter section 9.

Bennett had received a trial notice that his case was to be heard at the Mississauga Provincial Offenses Court – usually reserved for traffic tickets with fines of less that $1,000.

That court set the trial date without input from the defense. If that trial had proceeded, Bennett would have had only a few minutes to present his Charter arguments. His counsel filed a Notice of Constitutional Question on Dec. 20, 2023, restating their intention to raise section 8 and 9 Charter issues, and then filed a motion to adjourn to trial. This would have allowed the defense enough time to fully argue the Charter issues. The January 2024 court date was then set.

But when that day came, there was no witness for the prosecution. As a result, the charge against Bennett was dismissed. 
In 2022, Bennett was one of 11 applicants requesting a judicial review, supported by the Justice Centre, that challenged the constitutionality of the ArriveCAN app in Yates v. Attorney General of Canada.

The federal policy of requiring Canadians to use the ArriveCAN app when returning to Canada was discontinued on Sept. 30, 2022. The Federal Government then brought a motion to dismiss the case for mootness (irrelevance), which the court had granted.

The decision to dismiss the challenge to ArriveCAN for mootness was affirmed by the Federal Court of Appeal in July 2023, although the Court also ruled that Canadians could still pursue constitutional challenges when fighting their ArriveCAN tickets. That’s what Bennett had hoped to do, but the prosecution witness failed to appear.