Matt Malone is an assistant professor at Thompson Rivers University’s Faculty of Law.
Protecting Canadians against COVID-19 has been one of the federal government’s most pressing responsibilities over the past two-plus years. As part of that effort, Ottawa established several entry conditions under the Quarantine Act, including mandatory use of the ArriveCAN app by anyone seeking to enter the country. Failure to use the app – which has been enforced for air travellers since November, 2020, and for all other travellers since February, 2021 – can result in significant penalty, and exemptions are rare.
But while ArriveCAN was intended to help stop the spread of COVID-19, the government’s justifications for it are increasingly tenuous.
Consider what the app actually accomplishes. It collects travellers’ personal information and then issues a receipt that they must show to a Canada Border Services Agency (CBSA) officer. ArriveCAN does not validate eligibility to enter Canada; CBSA officers do so. Why does the government need an app to do this? As the government notes in the ArriveCAN Privacy Notice and its guidance documents, ArriveCAN “helps” the CBSA officer determine entry eligibility. The government has stated that the app reduces the decision-making process for the CBSA by 40 seconds.
This claim is hard to believe. As the president of the CBSA officers’ union told the CBC two weeks ago: “We’re in a situation where we’re kind of not doing our actual work as border service officers anymore. All of our time is being spent on the app.” A spokesperson for the union also told the Canadian Press last week: “We’re so short-staffed and spending so much time dealing with this app that we really don’t have time to do our actual jobs anymore.”
Such remarks aren’t just an optics problem. Under the Quarantine Act, the government can establish “conditions” for entry to the country only where “no reasonable alternatives” exist. Since ArriveCAN itself does not determine eligibility to enter the country – since all it does is “help” the CBSA agent do so – Ottawa has no justification for mandating use of the app when it fails to live up to that purpose. Mandating its use in such circumstances is a capricious use of government power. The app also raises equity concerns by pushing the use of smartphones on groups without easy access to or knowledge about such devices.
ArriveCAN may have once been about contact tracing, but now, in most cases, it does not even collect all relevant health data, such as booster shot status. By contributing to snarls at airports and at the border, it actually increases opportunities for exposure to the virus.
This disregard for protecting Canadians’ health and ignoring the enabling provisions of the Quarantine Act is indicative of the government’s intention to use ArriveCAN for purposes unrelated to the pandemic. As Public Safety Minister Marco Mendicino recently acknowledged: “ArriveCAN was originally created for COVID-19, but it has technological capacity beyond that.” Yet it is still being enforced through the Quarantine Act.
So far, the government has largely enjoyed significant deference from Canadians in its use of emergency measures to respond to COVID-19. But with ArriveCAN, this is not warranted. Two weeks ago, the government admitted that the app was sending fully vaccinated and non-symptomatic individuals faulty notifications instructing them to quarantine. The glitch affected approximately 10,200 individuals (although Ottawa did not specify whether all of these people received quarantine orders).
Mandatory quarantine orders are not some small tech error. They are a direct product of ArriveCAN’s lack of proper governance and oversight.
Which brings us to another problem: The government’s decision to designate parts of ArriveCAN as a trade secret and bar the app’s source code from disclosure. Aside from the fact it was designed with five private companies – including one consisting of no more than four employees that was awarded a non-competitive contract valued at $14-million – Canadians know almost nothing about how it was made or how it works.
This kind of non-disclosure bars access to the evidence necessary to understand why and how those faulty notifications were sent. It offends principles of procedural fairness and gives Canadians no opportunity to challenge the app’s actions. Instead, the government is engaging in the most dangerous excesses of automated decision-making and algorithmic governance.
Our current privacy and data protection laws provide little in the way of meaningful transparency and accountability in such circumstances. The Charter itself is also ill-suited to provide redress: Throughout the pandemic, federal court judges consistently shot down challenges to override emergency measures under the Quarantine Act.
But governmental insistence on the use of automated decision-making and algorithmic governance technologies must be matched with transparency and accountability. ArriveCAN sets a worrying precedent.
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