Manitobans fighting COVID fines lose in court

Hey there, time traveller!
This article was published 31/01/2023 (442 days ago), so information in it may no longer be current.

Dozens of Manitobans are still fighting hefty federal fines for violating pandemic protocols four months after Ottawa lifted COVID-19 travel restrictions at Canada’s border crossings.

While the deluge of Quarantine Act charges on local court dockets is starting to shrink, 16 cases are set for trial this year — a fraction of the more than 830 tickets issued to Manitobans since April 2020, figures from Manitoba Justice show.

Last year, 77 were set to be challenged in court, but not all of those trials went ahead, the federal prosecution office says.

Many Canadians ticketed would have paid their fines without going to court. As of mid-November, there were 146 hearings set for Quarantine Act court cases. Of those, 43 were stayed, 35 resulted in guilty pleas, 27 ended with convictions after trial, four were acquitted and 37 cases were still before the court, according to case-management data provided by Manitoba’s chief federal prosecutor Michael Foote, who said lifting the restrictions has no bearing on the continued prosecution of the charges.

During Quarantine Act trials in Winnipeg in January, judges imposed thousands of dollars in fines.

A case that dragged on for more than a year ended with a fine of $8,550 for a Winnipeg woman who returned to Canada without a required PCR test. All travellers had to come back with negative test results until the federal government made fully vaccinated individuals exempt from that rule last April.

Provincial court Judge Murray Thompson imposed the full fine (a $5,000 base amount plus court costs and surcharges) after he rejected Nicole Watling’s self-represented arguments that the accusation against her wasn’t specific, that she didn’t get disclosure of a second border officer’s notes and that the ticket wrongly referred to her as male. (That error wasn’t enough to get the ticket thrown out).

After a 55-minute trial on Jan. 16, the judge found her guilty via what he described as “essentially a paper case,” filed by the federal prosecutor — a copy of the ticket and the enforcement officer’s notes. The notes stated Watling was away from Canada for 10 days before flying to the Grand Forks, N.D. airport and taking a taxi to the Manitoba border at Emerson on Sept. 30, 2021. She wasn’t clear on the test requirements and admitted she hadn’t done any research into Canada’s re-entry rules at that stage of the pandemic.

Of the three cases that went to trial before Manitoba judges in January, two involved truck drivers who expressed anti-vaccine sentiments. Both were found guilty and ordered to pay reduced fines of $2,500 each. One of the self-represented truckers, Andrzej Oleder, pulled out income tax forms and told a judge his business was at stake, on track for an $85,000 loss, because of pandemic revenue declines. He said he didn’t believe the vaccine was effective and considered the virus a financial hoax.

“This is, for me, not real. It’s just for the money,” Oleder said in court on Jan. 23.

Winnipeg defence lawyer Amado Claros has handled a few Quarantine Act cases on behalf of clients. All have been unvaccinated, many of them truck drivers, he said. It can be difficult to challenge these kinds of offences, considering the reason the federal government imposed them, he emphasized.

“The court is not going to second-guess what our policy-makers at the time deemed appropriate,” Claros said, although he said he believes people were over-ticketed and there are plenty of constitutional arguments to be made.

Charter challenges are ongoing in Federal Court over the former federal hotel-quarantine policy and the use of the ArriveCan mobile app as a border-screening tool.

In Manitoba, constitutional arguments against the federal restrictions have been rejected. On Jan. 20, provincial court Judge Anne Krahn dismissed all arguments of a self-represented Manitoba woman, Carol Herrera-Bergmann, who refused to answer public-health questions at the border in August 2022 upon her return from a Bible convention in Texas. The woman argued numerous charter rights, including the freedom of religious expression and the right not to be arbitrarily detained, were violated by mandatory masks, vaccines, test requirements and border screening questions. None of those arguments held up in court.

On Jan. 23, Claros represented two unvaccinated truck drivers, Leonard Maendel and Michael Waldner, who decided to plead guilty before their trial for failing to present negative PCR tests at the border. They had crossed into the U.S. and intended to be back in Canada before a Jan. 15, 2022 rule change that required all Canadian unvaccinated truckers to meet testing and quarantine requirements.

But a snowstorm delayed them, and they arrived at the border a day after the requirements changed. They were each ultimately fined $2,500, less than the Crown’s recommendation. Federal Crown prosecutor Dan Manning sought a $4,225 fine. It has been a consistent practice for the Public Prosecution Service of Canada to seek only 50 per cent of the full fine in court in exchange for a guilty plea.

Trials on these tickets “can sometimes be bogged down with charter arguments that have no merit, with (Freemen-on-the-Land sovereign citizen) ideology that has absolutely no merit, so I accept the guilty plea and it has saved the court some time,” Manning said during the Jan. 23 court appearance in front of provincial court Judge Sam Raposo.

Several of those kinds of arguments — which would be described by Raposo as “nonsense” — played out in court minutes later.

The next case on the docket involved a member of a Hutterite colony who had been delivering a load of agricultural equipment to North Dakota and was across the U.S. border for only an hour before being ticketed upon his return to Emerson on June 10, 2022.

Jesse Samson Hofer testified he wore a mask at the border but didn’t believe in vaccines and feared COVID tests, which he believed created false positives and amounted to corruption.

“My thought about the PCR test is that they are actually giving COVID to us,” Hofer said during trial.

He had a flip phone and couldn’t have downloaded the then-required ArriveCan mobile app. The Crown didn’t prosecute the ArriveCan violation (none of the Quarantine Act cases observed by the Free Press relied on the embattled ArriveCan app).

The truck driver argued he is not the man identified on the ticket in capital letters because he uses lowercase letters to spell his name (he added dashes and colons when he spelled his name for the court record). He argued he didn’t consent to being ticketed and that the rule of God is superior to the rule of law.

After an 80-minute hearing, the Crown sought the full $8,550 penalty.

Winnipeg Free Press | Newsletter

Business Weekly

Monday mornings

The latest local business news and a lookahead to the coming week.

Sign up for Business Weekly

Sign Up

I agree to the Terms and Conditions, Cookie and Privacy Policies, and CASL agreement.

That amount of money was “more than what’s needed,” the judge decided. He instead imposed a $2,500 total fine.

Raposo told Hofer he appreciated him coming to court and making his arguments.

“While I don’t agree with them, I’m glad that you were able to exercise your opportunity to defend yourself. I wish you good luck, and stay safe.”

Manitobans have been fined more than $5.6 million as of Jan. 2, according to provincial data published online, for alleged violations of the Quarantine Act. Nowhere near that amount of money has been paid. Including federal fines and provincial COVID-19 enforcement tickets, a total of $9.5 million in fines has been levied, but only $925,927 has been collected.

katie.may@winnipegfreepress.com

Katie May
Reporter

Katie May is a general-assignment reporter for the Free Press.

   Read full biography