A lawsuit challenging the Liberal government’s now-suspended COVID-19 travel vaccine mandate will be able to proceed to trial, after earlier legal challenges were dismissed as moot, a federal court has ruled.
The lawsuit was filed by businessmen Karl Harrison and Shaun Rickard. The two sought judicial review in December 2021, becoming the first to challenge the constitutionality of the travel restrictions that barred millions of unvaccinated Canadians from boarding planes, trains, and certain ships within Canada.
Their first legal challenge, which was
grouped with similar legal actions by former Newfoundland Premier Brian Peckford and People’s Party Leader Maxime Bernier, had been declared moot by a federal court judge in October 2022.
Justice Jocelyne Gagné
said there was “no live controversy to adjudicate” since the government had suspended the mandate in June 2022. The travel mandate was
introduced in October 2021.
The Federal Court of Appeal
upheld Gagné’s ruling in November 2023. While Peckford and Bernier went to the Supreme Court, which
declined to hear the case in August 2024, Harrison and Rickard went a different route, filing a lawsuit claiming $1 million in damages under various sections of the Charter of Rights and Freedoms.
Associate Judge Trent Horne struck parts of the claim in relation to specific sections of the Charter, but allowed others, according to his Nov. 28
ruling. The claim under
Section 6(1) of the charter, which protects Canadian citizens’ right to enter, leave, and remain in Canada, can proceed for Harrison but not for Rickard, on the basis that Rickard was a permanent resident at the time the vaccine mandate was in place.
Horne has allowed the Section 15 claim on equality rights—which prohibits discrimination on certain grounds—to proceed even though vaccination status is not officially recognized as one of those grounds.
“While the chances of having vaccination status recognized as an analogous ground for the purposes of section 15 may be remote in light of the current jurisprudence, I am not satisfied that such an argument is bound to fail if the plaintiffs allege that vaccination would constitute an unacceptable cost to their personal identity, or would tear asunder immutable or even deeply held beliefs,” wrote Horne.
Harrison and Rickard’s lawyer, Sam Presvelos, is appealing the Federal Court’s decision to strike claims under
Sections 7, which guarantees the right to life, liberty, and security, and
Section 12, which protects against cruel and unusual treatment.
The Institute for Justice and Freedom, of which Harrison is a founder, said in a
statement the appeal is expected to take several months and noted that, if successful, the attorney general may further appeal to the Supreme Court.
“We need to ensure that this can never happen again,” Harrison said about the travel mandate in a statement to The Epoch Times. “The court will have to decide whether the unvaccinated are a protected class in Canada.”
Former Transport Minister Omar Alghabra and then-Health Minister Jean-Yves Duclos have defended the vaccine mandate, saying it reduced COVID-19’s impact on travellers, workers, and communities. The Justice Department was contacted for comment.
Government data suggests the mandate had limited effect on transmission of the virus, because the Omicron variant, which emerged in late 2021 and early 2022, affected the vaccinated and unvaccinated alike.
Noé Chartier contributed to this report.
