On January 26, 2022, the Justice Centre filed a lawsuit in Federal Court seeking to strike down the federal government’s mandatory Covid-19 vaccine requirements for air travellers. The court action is on behalf of several Canadians from across Canada whose Charter rights and freedoms have been infringed.
On October 30, 2021, the federal government announced that anyone travelling by air, train, or ship, must be fully vaccinated. The travel vaccination mandate has prevented approximately 6 million unvaccinated Canadians (15% of Canada’s population) from travel within Canada and prevents them from flying out of Canada. Some of the Canadians involved in the lawsuit cannot travel to help sick loved ones, get to work, visit family and friends, take international vacations, and live ordinary lives.
The main applicant in the case is former Newfoundland Premier, The Honourable A. Brian Peckford. Mr. Peckford is the only surviving drafter and signatory 40 years after the 1982 Constitution and the Charter of Rights and Freedoms was enacted.
“It is becoming more obvious that being vaccinated does not stop people from getting Covid and does not stop them from spreading it”, said the former Premier. “The government has not shown that the policy makes flying safer—it simply discriminates”, he notes. “When I heard Prime Minister Trudeau call the unvaccinated ‘racists,’ ‘misogynists, ‘anti-science’ and ‘extremist’ and his musing ‘do we tolerate these people?’ it became clear he is sowing divisions and advancing his vendetta against a specific group of Canadians—this is completely against the democratic and Canadian values I love about this country”, added Mr. Peckford.
“The federal travel ban has segregated me from other Canadians. It’s discriminatory, violates my Charter rights and that’s why I am fighting the travel ban,” he explained.
The legal challenge cites violations of Charter rights including mobility, life, liberty and security of the person, privacy, and discrimination. The lawsuit also challenges whether the Minister of Transportation has the jurisdiction to use aviation safety powers to enforce public health measures.
In discussing effective border control measures at the start of the Covid-19 outbreak, Canada’s Chief Medical Officer, Dr. Tam, said: “As you move further away from that epicentre, any other border measures are much less effective. Data on public health has shown that many of these are actually not effective at all… WHO advises against any kind of travel and trade restrictions, saying that they are inappropriate and could actually cause more harm than good in terms of our global effort to contain.” (Canada House of Commons, Standing Committee on Health Meeting, February 5, 2020)
The World Health Organization (“WHO”) continued to maintain that position and on January 19, 2022, urged all countries to: “Lift or ease international traffic bans as they do not provide added value and continue to contribute to the economic and social stress experienced by States Parties. The failure of travel restrictions introduced after the detection and reporting of Omicron variant to limit international spread of Omicron demonstrates the ineffectiveness of such measures over time.” The WHO repeated that countries should: “not require proof of vaccination against COVID-19 for international travel.” (World Health Organization, Statement on the tenth meeting of the International Health Regulations (2005) Emergency Committee regarding the coronavirus disease (COVID-19) pandemic, January 19, 2022.)
“Despite the confirmed science that the vaccine does not stop people from getting or spreading the virus and the repeated warnings from the WHO, it’s clear the federal government is out of step and arbitrarily restricting Canadians fundamental rights and freedoms,” said lawyer Keith Wilson, Q.C., who was lead counsel for the legal challenge. “It is profoundly disturbing that a marginalized group in Canada—the unvaccinated—are essentially prohibited from leaving the country.”
“Canadians have been losing hope in the Charter and our courts. We are going to put the best arguments and evidence forward so that the court can clarify where governments overstep,” concluded Mr. Wilson.
The court was asked to hear the case on an expedited basis given the serious infringement on Canadians’ mobility and other rights. Canada is the only country in the developed world that banned Covid vaccine-free travellers from air travel.
After the Federal Government announced that the travel vaccine mandate was “suspended” on June 14, 2022, adding that they would “not hesitate to make adjustments based on the latest public health advice”, the Government of Canada brought a motion to dismiss the constitutional challenge to the vaccine mandate that had prevented millions of Canadians from flying, claiming that the challenge was “moot” because the mandate had been lifted.
On August 5, 2022, a written response to the claim of mootness was submitted on behalf of Mr. Peckford, Mr. Bernier, et al. The response reads in part, “The Federal Government has maintained that the impacts of Covid represent a public health emergency, which justifies impositions on the rights and freedoms of Canadians at an unprecedented level. The Covid pandemic and restrictions have caused much division in Canada. These Applicants have applied to this Court to review the Federal Government’s actions, secure their rights and bring clarity and finality to a controversial and divisive topic that has had far reaching impacts throughout all of Canada. It is these Applicants’ position that without a hearing on the merits of this matter, in an open and transparent court, it would erode the democratic foundation of our society.”
On August 9, 2022, legal counsel filed their legal Argument along with over 14,000 pages of evidence. The lawyers had spent all of June 2022 in extensive cross examinations of 16 witnesses including senior federal government officials and five expert witnesses.
Under cross examination, Dr. Lisa Waddell, senior epidemiologist, and team lead at the Public Health Agency of Canada (“PHAC”) admitted that vaccinating air travellers was not recommended by PHAC. Dr. Waddell was asked whether vaccination is an effective mitigation measure for air travel and she testified as follows: “…there wasn’t a lot of evidence on that so, as a strategy as a whole, it has not been evaluated in the literature and therefore is not elaborated in the review. (Waddell Cross Examination Transcript – page 92 lines 22-25, Part 7.)
Government witnesses made important admissions during cross-examinations. Tyler Brooks, Director of the Civil Aviation Medicine Branch at Transport Canada, described the federal government’s approach to developing Covid public health measures as follows: “So when you’re talking about public health and public protection, public safety you often have to take a preventive approach to it. The pandemic was like riding down a mountain with a blindfold on a bicycle. We have no idea where it’s going.” (Little Affidavit, Exhibit “E”, at pages 12 and 13, Part 3)
In her sworn Affidavit, Jennifer Little, Director General of Covid Recovery at Transport Canada, stated that the Canadian travel restrictions challenged in this application are “unique in the world in terms of strict vaccine mandate for domestic travel” and stated it is “one of the strongest vaccination mandates for travellers in the world.” (Little Affidavit, Exhibit “E”, at page 15, Part 3) Ms. Little also testified that it was a deliberate decision of the Federal Government to refuse to allow “exemptions for compassionate grounds (death in family, dependent care, etc.)”.
The Applicants’ Legal Argument states: “The [Travel Ban is] [outside] the authority delegated to the Minister of Transport under section 6.41(1) of the Act, which restricts the Minister’s order-making power to matters related to aviation safety consistent with the scope and objects of the Act. The [Travel Ban is] [outside the authority of the Minister of Transport] as it was made for an improper purpose, and in bad faith in furtherance of an ulterior motive to pressure Canadians into taking Covid vaccines.
The evidence in this Application shows that this travel ban was unnecessary to maintain citizens’ well-being. The vaccines do not prevent transmission. The more fundamental the interest that is impaired by the government’s actions, the less deferential a court should be toward government.
Lawyers were in Federal Court on September 21, 2022, in response to the Federal Government’s attempt to have the Court throw out the ongoing legal action.
Following the Ottawa court hearing, Justice Gagne decided on October 20, 2022, to dismiss the challenge as “moot”, issuing reasons on October 27, 2022. Despite the fact almost all litigation steps had been completed, including nearly a month of cross-examinations, and Court time had already been scheduled, Justice Gagne held that the cost to the judicial system of determining the case outweighed the public interest in having the case decided and providing certainty in the law. The Federal Court had notified the parties that the constitutional challenges against the federal government’s travel mandate during the Covid-19 pandemic were struck for being “moot,” just eleven days prior to the start of the constitutional hearing, which had been scheduled for October 31, 2022.
With counsel provided by the Justice Centre, Peckford, Bernier and the other applicants appealed Justice Gagne’s decision to the Federal Court of Appeal.
On April 13, 2023, the written arguments were filed in support of the appeal of the October 20, 2022 decision of the Federal Court that found their case was “moot”.
The written arguments focus on the Federal Court Judge’s failure to give proper weight and consideration to the Minister of Transport’s threat made in a public statement “to make adjustments based on the latest public health advice and science to keep Canadians and the transportation system safe and secure.”
They further highlight the Judge’s error in properly engaging in the three-part legal test she was supposed to perform as part of her analysis of whether to exercise her discretion to hear the case. The legal test, from a Supreme Court of Canada case, identifies that the court, when deciding whether to exercise its discretion to hear a “moot” case, ought to consider the following factors:
- The existence of a truly adversarial context;
- The presence of particular circumstances which justify the expenditure of limited judicial resources to resolve moot cases;
- Respect shown by the courts to limit themselves to their proper adjudicative role as opposed to making free-standing, legislative type pronouncements.
The Federal Court Judge failed to consider the third factor in her decision.
“The federal government’s threat to reinstate the travel mandate should have been the deciding factor for the Federal Court to hear this case,” stated Allison Pejovic, legal counsel for the Appellants. “The public interest in this case is staggering. Canadians need to know whether it is lawful for their own federal government to prevent them from travelling across Canada or leaving the country based upon whether they have taken a novel medication.”.
“We hope the Federal Court of Appeal grants this appeal so that this very important case can be heard.”
The appeal to “mootness” finding in the travel vaccine mandate case was scheduled to be heard by the Federal Court of Appeal the week of October 10, 2023.
Finally, on November 9, 2023, the Federal Court of Appeal released its decision, dismissing the appeal to the declaration of mootness in their constitutional and jurisdictional challenge to the federal gov’s travel vaccine mandate.
