From the Justice Centre for Constitutional Freedoms

At the time the federal government rescinded the vaccine travel mandate, the Minister of Transport had threatened to bring back the mandate without hesitation.

The Justice Centre for Constitutional Freedoms is disappointed to announce that the Supreme Court of Canada has declined to hear the appeals in two cases that challenged the federal Covid vaccine travel mandate. The cases are Peckford et al. v. Canada and Hon. Maxime Bernier v. Canada.

The Justice Centre supported Applicants in both cases. The Applications for Leave to Appeal to the Supreme Court of Canada were filed separately.

The Hon. Brian Peckford, former Premier of Newfoundland and Labrador, was an applicant in one case, along with five others. Mr. Peckford is the last living signer of the Canadian Charter of Rights and Freedoms. The other case was brought by the Hon. Maxime Bernier, the leader of the People’s Party of Canada.

In both cases, the Federal Court held the issues were moot because the vaccine travel mandate had been rescinded after the cases had been filed and cross-examination had occurred, but prior to the court hearings. Dismissing a case as moot means that the court has found that its decision will not have a practical effect and that it is not worth the time and effort to decide the case otherwise.

In regard to the Covid vaccine travel mandate, however, at the time the federal government rescinded the vaccine travel mandate, the Minister of Transport had threatened to bring back the mandate without hesitation.

The Applicants argued that the doctrine of mootness ought to be reconsidered by the Supreme Court because emergency orders by their nature are evasive of review, resulting in no oversight by courts or elected legislators.

Hearing these cases would have allowed the Supreme Court to determine whether it is appropriate to allow governments to evade judicial scrutiny of their decisions made through emergency orders. Unlike legislation passed by Parliament, emergency orders are made through Cabinet orders and are protected by Cabinet privilege, meaning Canadians cannot learn the reasoning behind the decisions.

Lawyer Allison Pejovic says, “This case was of paramount importance to all Canadians, and they have been denied the right to know whether the federal government acted lawfully in preventing them from travelling and leaving the country based on their refusal to take a novel medication that failed to prevent transmission of Covid, and that has caused death and serious harm to many people worldwide. Deeming cases challenging draconian emergency orders that harmed millions of Canadians moot damages confidence in the justice system and undermines the rule of law.”

Background

On August 13, 2021, the federal government announced its intention of implementing a vaccine requirement for travelling on planes, trains or ships. The government, led by Prime Minister Justine Trudeau, did this two days before announcing a federal election, essentially making it an election promise. After winning a minority in Parliament, the Minister of Transport implemented the mandate on November 30, 2021.

Both the Peckford and Bernier cases asked the Federal Court to strike down the mandate as a breach of Charter sections 2, 6, 7, 8 and 15. The most significant breach was to Charter section 6, mobility rights. All applicants were essentially barred from travelling across Canada in any practical manner and could not leave the country. In Mr. Bernier’s case, this meant he was essentially barred from campaigning.

Of note, on cross examination a government bureaucrat admitted she did not receive any medical advice to implement such a mandate. It was done solely on the direction from the Minister of Transport and the federal Cabinet.

Just a few days after cross examinations concluded, the government ended the mandate on June 20, 2022. Both cases were dismissed by the Federal Court as moot in October 2022. The subsequent Appeals were dismissed by the Federal Court of Appeal.