Supreme Court Won’t Hear Travel Vaccine Mandate Appeal

The Supreme Court of Canada is seen in Ottawa on Aug. 10, 2022. The Canadian Press/Adrian Wyld

Canada’s top court will not hear appeals from challengers of Ottawa’s COVID-era travel vaccine mandate.

The Supreme Court dismissed the appeals with costs on Aug. 29 in three separate cases. The court didn’t provide a reason for the decision, which is customary for judgments on leave applications.

The rejected cases involved People’s Party Leader Maxime Bernier, former Newfoundland Premier Brian Peckford and his co-applicants, and Quebec lawyer Nabil Ben Naoum.

The three parties had filed an appeal with the top court after the Federal Court of Appeal upheld the decision of a lower court.

Bernier, Peckford, and Ben Naoum, along with businessmen Karl Harrison and Shaun Rickard, had each filed applications for judicial review of the travel vaccine mandate when it was in place, seeking a ruling on its constitutionality.

The measure prevented millions of Canadians unvaccinated against COVID-19 from boarding a plane, a train, and some marine vessels. It was implemented in October 2021 and suspended in June 2022.

Ottawa suspended the mandate before the jointly heard cases could go before a judge. The Attorney General moved a motion to have the applications declared “moot,” arguing there was no “no live issue between the parties.”

Federal Court Justice Jocelyne Gagné ruled in favour of the mootness motion in October 2022, saying the applicants have “substantially received the remedies sought and as such, there is no live controversy to adjudicate.”

“There is no important public interest or inconsistency in the law that would justify allocating significant judicial resources to hear these moot Applications,” she said.

The four different parties appealed Gagné’s ruling and pleaded before the Federal Court of Appeal a year later in October 2023.

Challengers to the travel vaccine mandate and their lawyers in Ottawa on Oct. 11, 2023. PPC Leader Maxime Bernier is in the centre. To his right is Karl Harrison and to his left Nabil Ben Naoum and Shaun Rickard. Handout/Shaun Rickard

Ben Naoum told the panel of appellate judges the only way to leave the country for unvaccinated Canadians during the mandate, who he said were treated as a “sub-class,” was to “paddle in a row boat across the ocean.”

In a decision filed in November 2023, the Federal Court of Appeal upheld Gagné’s ruling, saying it contained “no palpable or overriding error.”

Bernier, Peckford, and Ben Naoum appealed to the Supreme Court. Harrison and Rickard did not. The latter have instead filed a new lawsuit claiming damages. The Attorney General filed a notice of motion in July seeking to have the action dismissed.

The Justice Centre for Constitutional Freedoms (JCCF), which supported the applications of Bernier and Peckford, said in a statement the Supreme Court should have accepted the appeals to determine whether it’s appropriate to “allow governments to evade judicial scrutiny of their decisions made through emergency orders.”

This allows the government to make decisions protected by cabinet confidences where the reasoning is shielded from public view, said JCCF.

“This case was of paramount importance to all Canadians, and they have been denied the right to know whether the federal government acted lawfully in preventing them from travelling and leaving the country based on their refusal to take a novel medication that failed to prevent transmission of Covid, and that has caused death and serious harm to many people worldwide,” said JCCF lawyer Allison Pejovic.

Transport Canada said in a statement to The Epoch Times that it welcomes the Supreme Court’s decision.

“Canada’s position is that the vaccination mandate that was in place until June 20, 2022 was consistent with the Canadian Charter of Rights and Freedoms, as well as Canada’s obligations in the area of human rights,” said spokesperson Sau Sau Liu. “Transport Canada’s priority will always be to safeguard Canada’s transportation system, including travellers and workers.”

Editor’s note: This article was updated with a comment from Transport Canada.