Travel Vaccine Mandate Challengers in Court to Contest Previous Mootness Ruling

A traveller passing a departures COVID-19 testing sign at Pearson International Airport on Dec. 3, 2021. Nathan Denette/The Canadian Press

Challengers to the now-repealed travel vaccine mandate pleaded before the Federal Court of Appeal on Oct. 11 to overturn a previous court decision declaring their case was moot.

Four different groups of appellants made their case in front of a panel of three judges, each taking various approaches to challenge the previous ruling made by Justice Jocelyne Gagné in October last year.

Quebec lawyer Nabil Ben Naoum, who represents himself, sought to impress upon the appeal judges what it meant to not be vaccinated during the mandate period from October 2021 to June 2022.

He argued that those who didn’t receive a COVID-19 vaccine were captive within Canada due to planes, trains, and commercial passenger marine vessels being off-limits. The U.S. also blocked access to non-vaccinated travellers at that time.

The only way for unvaccinated Canadians to leave the country was to “paddle in a row boat across the ocean,” said Mr. Ben Naoum. He added that this “sub-class” of unvaccinated citizens was akin to Cubans under Fidel Castro.

Mr. Ben Naoum also asked how the government could withhold fundamental human rights, hand them back at the eleventh hour, and then claim the issue is moot and shouldn’t be examined by the court.

The federal travel vaccine mandate was lifted on June 20, 2022, and eight days later the attorney general (AG) filed a mootness motion in order for the cases not to be heard by the court.

Justice Gagné essentially agreed with all the arguments presented by the government. She declared that the applicants had “substantially received the remedies sought,” given the mandate had been repealed.

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

‘Significant’ Public Interest

This issue of there being no public interest is an angle that was tackled by the counsels representing other parties in the mandate challenge in order to question Justice Gagné’s ruling.

Other parties include businessmen Karl Harrison and Shaun Rickard, who were the first to file a challenge to the mandate in December 2021, PPC Leader Maxime Bernier, and former Newfoundland premier Brian Peckford and co-applicants.

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. Tamar Harrison

Attorney Sam Presvelos, representing Mr. Harrison and Mr. Rickard, pleaded that Justice Gagné had made three errors in her decision, including that she did not consider the “significant” public interest in the judicial applications.

Justice George Locke, who was presiding the hearing, asked to clarify whether Mr. Presvelos wanted him to accept that Justice Gagné made her ruling without having the public interest in mind. “How could that be?” he asked.

Mr. Presvelos pointed to Justice Gagné’s decision, which said the “important public interest” is “alleged.”

Mr. Presvelos argued that the case is larger than the rights of the appellants or the general public who remained unvaccinated, which numbers in the millions.

He said he believes that Canadians would be “very interested” to know whether or not a medical procedure could be imposed as a condition to access federally regulated services.

Allison Peijovic, a lawyer with the Justice Centre for Constitutional Freedoms representing Mr. Bernier and Mr. Peckford, centred her arguments around jurisprudence on the issue of mootness, established in Borowski v Canada (AG) in 1989.

She argued that Justice Gagné did not fully analyze her clients’ applications against that jurisprudence, which addresses issues of whether a live controversy between parties remains.

Constitutionality

Challengers want the court to determine whether the imposition of the travel mandate was constitutional, given the impacts on mobility rights and the security of the person as it pertains to bodily autonomy.

Ms. Peijovic remarked that her client Mr. Peckford is the only living signatory of the Charter of Rights and Freedoms. He attested that the interim orders implementing the mandate violated his charter rights.

Ms. Peijovic said the court must pronounce itself on the matter, otherwise, Canadians remain in “limbo.” If they don’t know where the court stands on the lawfulness of the mandate, she said some are wondering whether they should move out of Canada.

She said the appellants want to know whether their freedom to leave Canada is conditional on taking a novel medication still undergoing testing.

COVID-19 vaccines were brought to market under special authorization without having gone through full clinical trials. Pfizer also used different processes to manufacture the product that was used in clinical trials and the one that was widely distributed across the world.

Justice Canada senior general counsel J. Sanderson Graham assured the Federal Court of Appeal that no errors were made in this case.

Mr. Graham agreed with the appellants’ argument that the government has left open the door to bring back mandates in response to circumstances, but he said the court could not “engage in speculation” or pass judgement on speculation. “We can only look at what happened,” he said, and the measures were repealed.

Because of that, there are no live controversies, said Mr. Graham, and the function of the court is to decide “real disputes” that affect the rights of individuals.

He said that Justice Gagné was right in her interpretation of Borowski and the economy of judicial resources. There is no tangible relief that can be provided to the applicants, he said.

If the panel of judges, which Justices George Locke, Nathalie Goyette, and René Leblanc, sides with the appellants, the case will be sent back down to federal court to be heard. If it upholds the mootness ruling, appellants could decide to go to the Supreme Court.

Appellants want to have their day in court, having collected thousands of pages of evidence from government witnesses and experts, on everything from the approval process for vaccines in Canada to ethical considerations being applied before imposing a mandate.

The evidence collected shows that the Transport Canada official in charge of crafting the travel mandate policy had not considered whether it was ethical to implement it. There was also no recommendation of public health authorities to impose a mandate, said the official during cross-examination.