The Honourable Maxime Bernier, leader of the federal People’s Party of Canada, was being prevented from fully participating in his political role by Orders issued by Transport Canada, under instructions of the Prime Minister. Mr. Bernier was being represented by Quebec lawyer, Samuel Bachand, with the support of the Justice Centre .
On October 30, 2021, the federal government announced that anyone travelling by air, train, or ship, must have received two of the Covid shots. The travel vaccination mandate has prevented approximately six million unvaccinated Canadians (15% of Canada’s population) from travel within Canada, and prevents them from flying out of Canada. Canadians cannot travel to help sick loved ones, to get to work, to attend university, to visit family and friends, to take international vacations, and to live ordinary lives like other citizens.
With implementation of these Orders, Mr. Bernier is restricted from participating in democratic discussions and the electoral process. As the leader of the fifth largest political party in Canada, in 2021, Mr. Bernier flew more than 79,000 km for work purposes. As a party leader, Mr. Bernier is required to reach thousands of people each year and to participate in various political, intellectual and charitable activities in all regions of the country. Travel other than by air is only reasonably feasible within a relatively limited radius of his residence in Quebec.
The Federal Government filed evidence in April on behalf of 16 witnesses including 5 experts in defence of the Travel Ban.
The evidence filed by the Justice Centre shows how the Canadians involved in the lawsuit cannot travel to help sick loved ones, cannot get to work, cannot visit family and friends, cannot access health care outside of Canada, cannot take international vacations, and cannot live ordinary lives. Expert medical evidence now filed with the court ranges from scientific evidence about Covid spread among both vaccinated and unvaccinated; risks associated with taking the new Covid vaccines; vaccine harms such as myocarditis and possible effects on fertility; and the superiority of natural immunity.
“Not only am I prevented from travelling easily across the country and doing my job properly as a federal party leader, but millions of Canadians from all walks of life are preventing from leading normal lives with this travel ban. It’s a clear violation of our basic rights to mobility, and I hope the court will strike it down,” said Mr. Bernier in 2021.
On February 10, 2022, a legal application in Federal Court was filed for judicial review of federal mandates which prevented Canadians who are not “fully vaccinated” from travelling by air.
The Interim Order Respecting Certain Requirements for Civil Aviation due to Covid-19, No. 53 was first implemented January 28, 2022. With few exceptions, the Order prohibited persons who are not “fully vaccinated” from travelling by air. In the opinion of the Justice Centre, this results in discrimination and a clear violation of the constitutionally protected rights of Canadians.
Besides the Charter providing mobility rights that allow Canadians to freely enter and leave the country, and travel unhindered between provinces, the Charter also guarantees citizens equal access to political institutions, public debate, and the electoral process.
“The Covid-19 zealots are attempting to gag dissenting voices like mine by any means possible. One such tactic is to prevent people from meeting and organizing politically. The courts must put an end to this segregation,” says Mr. Bernier.
“The mainstream media give me almost no airtime. I have to go and meet people all across Canada to keep my party growing and get the word out. If I have to travel the equivalent of fourteen times the distance from Victoria to St. John’s in a year, I’m certainly not going to do it by car or bike,” he adds.
Samuel Bachand, primary counsel for the Justice Centre in Québec at the time, noted, “Democracy is not the property of the vaccinated, nor is it some kind of reward for well-behaved children. All Canadians, of all political affiliations, must be free to travel. Canada is the only country in the developed world that has banned vaccine-free travellers from air travel, and yet we are supposed to be one of the most democratic countries in the world,” concluded Bachand.
On May 11, 2022, the Federal Court Ordered a date set for the trial of a legal challenge brought on behalf of the Honourable Maxime Bernier and others, consolidating four separate cases, two of which have been brought by former premier of Newfoundland-and-Labrador, The Honourable Brian Peckford. The court date was set for September 19, 2022. The case is being heard on an expedited basis given the serious infringement on Canadians’ mobility and other Charter rights.
On November 18, 2022, lawyers for the Honourable Brian Peckford, the Honourable Maxime Bernier, and others filed their Appeal of the October 20, 2022 decision of the Federal Court.
The Federal Court notified the parties that the constitutional challenges against the Federal Government’s travel mandate were struck for being “moot,” just eleven days prior to the start of the constitutional hearing, which had been scheduled for October 31, 2022.
The Federal Court issued full reasons on October 27, 2022. In her reasons, Associate Chief Justice Jocelyne Gagne found that the use of judicial resources for a five-day hearing, when the travel mandate had already been lifted, outweighed the public interest in having the case heard on the merits.
After reviewing the Court’s detailed reasons, lawyers for the former Premier Peckford, PPC leader Maxime Bernier, and the applicants appealed on the grounds that the Federal Court Judge unreasonably failed to exercise her discretion to hear and decide the constitutional challenge to the travel mandate, and erred in her determination that judicial economy considerations outweighed the important public interest and uncertainty in the law.
“The travel mandate represents one of the most egregious infringements of Canadians’ mobility rights in Canadian history,” states Allison Pejovic, one of the lawyers for the Appellants. “Canadians need to have confidence in our justice system. It is a profound injustice for millions of Canadians to be denied a court ruling on the lawfulness of the federal government’s prohibition on their travel overseas or across our large country in a practical way,” continued Pejovic.
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.
