The ArriveCAN Mess is the Public Health Agency of Canada’s Own Making. What Happens Sept 30?
Decision on Mandatory App Narrative Has PHAC Backed Into Corner
This is the eighth post in a series on ArriveCAN, please see prior posts for more context and background.
This post is about the confusion regarding ArriveCAN’s purpose, a reminder of how/why we got here — from a legal and policy perspective — and a look at what we’re facing as September 30 approaches.
September 30 2022 is the date when the government will have to maintain or update the border measures currently in effect during the pandemic, primarily instrumentalized via mandatory public use of ArriveCAN.
Current Official Public Health Agency of Canada Rationale for ArriveCAN
Yesterday I received an email reply to my July 8th letter to the Minister of Health, Jean-Yves Duclos. He is the minister responsible for overseeing the Public Health Agency of Canada. My letter requested a shift from mandatory to voluntary use of ArriveCAN, and a request for any information about when that might happen. At least I think that’s the genesis for the email I received, as it did not come from the Minister’s office. Rather, the sender was “Emergency Order Public Health Agency of Canada”. The reply (below) seems canned. It misstates my question and request, then fails to respond to it at all. I’ve replied to try to get a better answer.
The email was, however, surprisingly helpful in a different way. It was a stark reminder of the public health rationale that the government is still using for ArriveCAN, while it concurrently blends that story with one of border modernization.
The Legal Story Behind the Mandatory Technology Policy Decision
For civic education purposes, and to be sharing as I learn, what follows is how the government used our laws and a public health crisis to mandate the use of ArriveCAN. Making the tech mandatory has ongoing implications for our pandemic response and for our democracy. To understand the fraught situation we’re in today, and what we’re facing on September 30, we have to go back to the beginning of the app’s mandatory history. We need to understand that this could have all been done differently. Better decisions could have been made about this app’s use, both right at the start, and over time. Even within the context of emergency powers.
It is important to share that I am both working backwards from the present moment to understand exactly how a lot of this went down inside government. Some of my due diligence, records requests, etc. are still in motion. I need to cross-reference what was going on over the past 18 months between the Public Health Agency of Canada and the Canada Border Services Agency a lot more than I have been able to so far. I’m also trying to interpret legal information and history that I am not familiar with. These are my provisos. They are also my requests (pleas) to correct anything here that is wrong or misleading. This is particularly important to flag in terms of the Quarantine Act and the Orders of Council.
The email I received yesterday came from a Public Health Agency of Canada email alias called “Emergency Order” and linked to something called an Order in Council. This Order in Council is the legislation that was created using the Quarantine Act of 2005 in order to define how things work at the borders during the pandemic. This includes the use of ArriveCAN. The app is not named in the Order of Council (if you Ctrl+F you won’t find it), but the shape of an app is there, in the way that the order creates a mandate for the government to collect data through “electronic means”. More on that in sec.
The particular Order in Council (OIC) in question referenced in the email is: OIC 80, 2022–0836 (Minimizing the Risk of Exposure to COVID-19 in Canada). A screenshot of the OIC is below. I believe PC Number stands for Privy Council Number. More on the Privy Council here.
How the Law Was Applied vs. How the Law Could Have Been Applied
In my recent post, I described the process that the government should have put into operations, and communicated, when they launched ArriveCAN:
It should have gone like this: When you come to Canada, we need certain information from you to help us during this public health crisis. We are required to collect and use it under legislation called the Quarantine Act. Here are the ways you can share this information with us: through the use of a voluntary app (ArriveCAN), through our airport kiosks, or through a paper form you can fill out before or at the border.
The collection and use of this information is what is and was mandatory. The app never had to exist, nevermind be mandatory. The government *made* its use mandatory.
Here’s how this happened, legally:
In Canada we have a Quarantine Act. It received Royal Assent in 2005, on the heels of SARS. I’m paraphrasing here, but loosely speaking, the purpose of the Quarantine Act is to describe the conditions that the government can create as requirements for entry to the country during a public health crisis. From the Canadian Encyclopedia:
The act gives sweeping powers to the federal health minister to prevent the introduction and spread of communicable diseases. These powers can include health screenings, the creation of quarantine facilities and mandatory isolation orders. The Quarantine Act was introduced in the wake of the severe acute respiratory syndrome (SARS) crisis of 2003. It was invoked in March 2020 in response to the COVID-19 pandemic.
This Act is the bedrock of the rationale for ArriveCAN. Now hold that thought as we turn to 2020.
2020 Orders in Council — Putting the Quarantine Act into Action via ArriveCAN
Next in the history of events for ArriveCAN is the moment where the federal government made ArriveCAN mandatory technology — November 2020. The federal government used the Quarantine Act to create Emergency Order legislation — which includes the current Order in Council used to implement the mandatory use of ArriveCAN. In one of the earlier versions of this Order in Council — I have not reviewed them all to know which one — they introduced the following language. This is an example of the language that currently mandates the use of ArriveCAN:
(4) A person who enters Canada must provide their suitable quarantine plan or their contact information by electronic means specified by the Minister of Health, unless they are a member of a class of persons who, as determined by the Minister of Health, are unable to provide their plan by those electronic means for a reason such as a disability, inadequate infrastructure, a service disruption or a natural disaster, in which case the plan must be provided in the form and manner and at the time specified by the Minister of Health.
Here we also see that the Minister of Health is the one legally at the top of the accountability hierarchy related to direction on technology.
I will pause for a moment here to repeat something that we all need more transparency on in future: deferring to the Minister of Health on all things public health makes sense. Deferring to the Minister of Health to define the technology implementation that makes that happen does not make sense. It is unclear how this went down in practice. I’ve got an Access to Information records request in to see if any of it can be surfaced, in terms of the app approach as mandatory.
To wrap up: when the government wrote the emergency order legislation to put the Quarantine Act into practice — to write the Order in Council currently in effect — they made a choice to mandate the use of technology. This was a choice. What they could have done was write an Order in Council that set out terms that made electronic means voluntary rather than mandatory.
They could have set out Order in Council legislation such that people could use the app, or a kiosk, or a form, to comply with the conditions required to enter Canada. Because they didn’t do this, we have not built out any operational redundancy and paths for people to have choices. Making the app voluntary would have allowed people to pick the mode they are the most comfortable with to support the public health response.
Because the government didn’t create those options when they put this app into use for the pandemic, we’re now stuck in a very bad operations corner. The implications of what we’re facing now go beyond the harms to date, which include inequitable access to public services and erroneous quarantine notices. We’re suffering a daily degradation in public trust in government, which is a democratic harm.
This public trust degradation began late in 2020 when the government unnecessarily starting forcing people to use mandatory technology. The degradation is now escalating rapidly because the Public Health Agency of Canada is additionally letting its public health crisis intervention be turned into a border modernization tool. To make this all worse, there is no clear sense, for the public, of how this app is helping with the pandemic.
The Public Health Agency of Canada email says that ArriveCAN is “a necessary tool to help inform public health advice to ensure the health and safety of people in Canada is safeguarded”. It also says that: “All border measures will continue to be evaluated and are subject to adjustments informed by the latest science, evidence, and data.”
What does this mean in practice? None of us know. It’s “trust us”.
From Today to September 30, 2022 — Policy Crossroads
Beyond the confusion and distrust, we’ve got people creating political pressure to get rid of the app. Yesterday there was an article about pressure from US lawmakers to get rid of ArriveCAN.
I’m going to close on what is really bad about the specific nuance that we have lost because of the decision the government made back in 2020. Things are tangled up in a bad communications knot. It deeply concerns me, from a public health and trust perspective, that the Public Health Agency of Canada did not understand not only how bad it was to make the app mandatory, but also how bad it was to starting mixing border modernization rationale into its use.
This latest border modernization wave has led to the Canada Border Services Agency and Transport Canada becoming representatives that sometimes tell the ArriveCAN story. This does not track properly to the Quarantine Act accountability. This does not help us understand who we need to hold accountable for how ArriveCAN is implemented, regardless of the fact that the Canada Border Services Agency and Transport Canada are deeply enmeshed in its operations.
As we slowly come down from the peak of the seventh wave of the pandemic, I’ll close with a look at why I’m advocating for voluntary use of ArriveCAN but I do not take that to mean the end of the Quarantine Act, if, for public health purposes, the Quarantine Act should still be in force.
I cannot, from where I do my work, suggest that the federal government should remove the protections of the Quarantine Act. That is a public health discussion. I would like to know more about how ArriveCAN is impacting our pandemic response, but because the government is not being particularly forthcoming about that, I don’t.
The Best and Most Unlikely Outcome for September 30 — Voluntary App, Quarantine Act Still in Effect if PHAC Deems it Necessary
Because the government never built operational redundancy to support the collection and use of data through other modes than the app, I don’t know what would happen if they made the app voluntary but kept the Quarantine Act in effect. They could rewrite/update the current Order in Council to pull that off, if they wanted to. The legal part seems straightforward. The operational part is not.
Despite the complexity, this is the outcome I am advocating for. I think it is the least probable thing that will happen on September 30. As we have read about time and time and time again, our public service is falling down on general operations. It is entirely theoretically possible to do what I’m suggesting. But it is not practically likely that the federal government wants to deal with taking that operational complexity on.
They didn’t want to do it in 2020 despite it being the right move, from an equity perspective. With the heat up high, I can’t see how they would want to do so now. Taking this on would mean dealing with what might be more inefficient border experiences, in some cases. People standing for a bit longer at a kiosk, or in filling out a form, or talking to a border agent. That *all* would have to do with the information and processes necessary to support the Quarantine Act.
In summary, given that no one did this the right way in 2020, I don’t see how the government would want to tango with this complexity now. Which leaves us with the two more likely options for September 30.
The More Likely Outcomes for Sept 30
Things Stay the Same. Adjustments Considered As We Go
Option two is to keep things as they are with the mandatory use of ArriveCAN. This seems the most likely outcome, primarily because of the way the federal government has implemented the Quarantine Act. It is, functionally, one and the same as the mandatory use of ArriveCAN.
I don’t think the government could pull off splitting them up, on a purely operational level, even if they wanted to. I wish I was wrong here, I would love to be wrong here.
They government may feel it prudent, from a public health rationale, to keep the Quarantine Act in play. I get it. The federal government may want to keep this kind of a defensive and protective measure in place given the changing nature of the pandemic. Personally, I don’t want them to pull the Quarantine Act, especially not because they are getting pressure to do so for tourism reasons. Not because I think the Quarantine Act is necessarily what we should be doing right now, but because I truly don’t know what is going on. I do not want to believe that the government would keep the Quarantine Act in effect without a good reason, even if they aren’t communicating it properly.
This is why the mismanagment of putting the Quarantine Act into an app was a big mistake, from a public health and trust situation. They’ve now got people calling for the app to go away, but people might not realize what they are actually doing, because of how the government has set this up, is calling for the Quarantine Act to go away.
Implementation of the Quarantine Act Ends, ArriveCAN goes Voluntary
The third option is to put an end to the Quarantine Act and to make the app voluntary, with a new home and accountability at the Canada Border Services Agency. In this case, with the Quarantine Act gone, the app would be trimmed down and less onerous. It wouldn’t need to collect all the information as per the Quarantine Act, and it wouldn’t be sending out quarantine orders either.
It would turn into the kind of tech it was before the pandemic, intended as voluntary, to process customs forms (as it does now, as a voluntary feature, at a few select airports) and to perform whatever functions the federal government sees fit for border modernization.
As written previously, whatever public health gains the Minister of Health thought they were going to reap by making ArriveCAN mandatory in November 2020 have been degraded by a mix of confusion, lack of trust, and poor decisions made in 2021 and 2022. Recent lack of action to adjust border operations to make the app voluntary took a decision made in a rush and in a crisis and cemented it into operations while concurrently failing to make any of the decision-making legible and defensible to the public.
Beyond that, the fact that the government is doubling up on whatever public health rationale they’re using to effectively train people and normalize the border modernization efforts is bad governance. Full stop. No matter how much these two operations might be defensible independently, the way they’re being mixed together is wrong.
Finally, the great timeline below, shared today by Matt Malone, highlights some of the key moments in the story. These points help tell some of the ArriveCAN story over time.
There is so much the government has left untold. So much that they have made both confusing and inaccessible. This post hasn’t even ventured into the previously explored numerous, and severe, narrow technology governance issues with the app.
This post was an effort to try to understand how this happened from a legal perspective. From here we should keep eyes out for what happens on September 30 and continue to advocate for the best, if unlikely, situation of voluntary use of ArriveCAN while maintaining the Quarantine Act, if deemed necessary.