Peckford and Bernier take challenge of vaccine mandates for travel to the Supreme Court

Brian Peckford, Maxime Bernier and other applicants are seeking to appeal their vaccine mandate challenge to the Supreme Court of Canada, the Justice Centre for Constitutional Freedoms (JCCF) reports.

The applicants argue Canadians deserve to receive court rulings regarding any emergency orders that violate the Canadian Charter of Rights and Freedoms.

In 2021, the Government of Canada required travellers of federally regulated transportation services (air, rail and marine) to provide proof of COVID-19 vaccination, which resulted in preventing roughly 5.2 million Canadians from travelling by air and rail.

In response to these restrictions, Peckford and Bernier and other Canadians, took the federal government to court in February 2022, arguing the Charter freedoms of religion and conscience, assembly, democratic rights, mobility, security, privacy and equality of Canadians were infringed.

Affidavits filed in this action attest prohibitions on domestic and international air travel have significant, negative impacts on Canadians, given how expansive its geography is.

In another affidavit, Jennifer Little, Director General of COVID Recovery at Transport Canada, provided her team’s October 2 2021 presentation, entitled Implementing a Vaccine Mandate for the Transportation Sector, outlining considerations for the purposes of seeking the Minister of Transport’s approval of the vaccination mandate.

The presentation acknowledged the Canadian travel restrictions were “unique in the world in terms of strict vaccine mandate for domestic travel” and “one of the strongest vaccination mandates for travellers in the world.” Little admitted during cross examination she had never seen a recommendation from Health Canada or the Public Health Agency of Canada (PHAC) to the Ministry of Transport to implement a mandatory vaccination policy for travel.

Dr. Lisa Waddell, a senior epidemiologist and the knowledge synthesis team lead at the PHAC, admitted during a cross examination there was no recommendation from PHAC to impose vaccination requirements on travellers.

The government suspended the travel vaccine restrictions but said it would not hesitate to reinstate them if it considered it necessary.

The federal government then moved to have Peckford’s challenge struck for mootness (irrelevance). The Crown argued the travel restrictions had been lifted and should not take up further court resources. The Federal Court agreed and the Federal Court of Appeal affirmed this lower court ruling.

The current attempt to secure an appeal has a two-step process: the applicants first ask whether the Court is willing to hear the appeal. If so, it will then be scheduled for a hearing. The applicants (Peckford here, Bernier here) argue the issues raised are of national importance and Canadians deserve access to court rulings about policies that violate the Charter freedoms of millions of Canadians.

If the declaration of mootness is allowed, all challenges to emergency orders could be deemed irrelevant, given emergency orders usually expire quickly, say the applicants.

“If courts are going to affirm and uphold emergency orders that violate our Charter rights and freedoms whenever the emergency order is no longer in force, how can the Charter protect Canadians from government abuses?” asked John Carpay, president of the Justice Centre.

Emergency orders are not debated in, or approved by, federal Parliament or provincial legislatures, but are discussed confidentially in cabinet. The Justice Centre says this means only through court rulings can Canadians learn whether a mandate or emergency order was done with a justifiable rationale and are therefore constitutional.

“The Supreme Court of Canada has an opportunity to create an important precedent for how Canadian courts deal with 'moot' cases involving questions about the constitutionality of emergency orders,” stated lawyer Allison Pejovic, who represents Peckford and Bernier.

“Canadians need to know whether it is lawful for the federal government to prevent them from travelling across Canada (or internationally) based upon whether they have taken a novel medication.”

“It is time for the Supreme Court of Canada to expand the legal test for mootness to account for governments’ use of emergency orders, which are devoid of transparency and accountability," Pejovic said.