From the Justice Centre for Constitutional Freedoms

Ruled “moot,” the travel vaccine mandate challenge is back before the court

The Justice Centre for Constitutional Freedoms supports former Newfoundland Premier, the Honourable Brian Peckford, People’s Party leader, the Honourable Maxime Bernier, and others in their appeal of the decision that their challenge to the federal government’s travel vaccine mandate was not worth hearing because the mandate was lifted. The case goes before the Federal Court of Appeal in Ottawa on Wednesday, October 11.

The travel vaccine mandate was brought into force in November 2021. The mandate prevented 5.2 million Canadians who chose not to be vaccinated for Covid-19 from traveling by air. Affidavits filed in the case attest that, in a country as large as Canada, prohibitions on domestic and international air travel can have significant negative impacts on Canadians. The basis for the challenge is the right to mobility guaranteed in The Canadian Charter of Rights and Freedoms.

The case was filed in February 2022, and a hearing was scheduled for later that year in October 2022. In preparation for that hearing, the parties filed over 14,000 pages of evidence. The legal challenge had attracted media attention because former Premier Peckford is the last living signatory to The Canadian Charter of Rights and Freedoms, which came into force in 1982 as part of the repatriation of the Canadian Constitution. Adding interest, Maxime Bernier is the leader of the federal People’s Party of Canada.

Between the filing of the case in February 2022 and the hearing set for October 2022, the mandate was lifted. In June 2022, the then-Minister of Transport Omar Alghabra suspended the mandate, and threatened to bring it back if public health officials believed the circumstances warranted it.

Eleven days before the scheduled October hearing, the Federal Court dismissed the case, declaring it “moot,” or irrelevant, because the mandates were no longer in force. A declaration of “mootness” means that the court believes that continuing with the hearing would not be a good use of the justice system’s resources.

However, the appellants believe that the public interest in the case far outweighs the concern and need for judicial economy. In November 2022, they filed their Notice of Appeal, and their written arguments were filed in April 2023.

John Carpay, President of the Justice Centre, emphasizing the importance and uniqueness of the issue, stated, “There has never been a more egregious infringement of Canadians’ mobility rights than what occurred due to the unconstitutional and unlawful travel vaccine mandates. For the Federal Court to find that it is not in the public interest to determine whether the Federal Government acted lawfully in prohibiting 5 million Canadians from flying across the country and internationally to see family members is a grave injustice that the Federal Court of Appeal ought to remedy.”