Third time’s a charm as the Justice Centre for Constitutional Freedoms seeks to appeal their suit against the federal COVID jab mandate.

In November 2021, the Trudeau Liberals required all travelers of federally regulated transportation services to provide proof of vaccination. These restrictions on the Charter freedom of mobility prevented 5.2 million unvaccinated Canadians from traveling by air and rail.

In response to these restrictions, the Honourable Brian Peckford — the last living signatory of the Charter and former Premier of Newfoundland — People’s Party leader Maxime Bernier, and other Canadians took the feds to court in February 2022, arguing the mandate contravened their Charter freedoms of religion and conscience, assembly, democratic rights, mobility, security, privacy, and equality of Canadians. 

In an affidavit, Jennifer Little, Director General of COVID Recovery at Transport Canada, provided her Covid Recovery Team’s October 2, 2021 presentation, entitled Implementing a Vaccine Mandate for the Transportation Sector. 

She admitted during cross examination that neither Health Canada nor the Public Health Agency of Canada recommended a mandatory vaccination policy for travel, which later devolved into “one of the strongest vaccination mandates for travelers in the world.” 

Dr. Lisa Waddell, a senior epidemiologist and the knowledge synthesis team lead at the Public Health Agency of Canada, also admitted her agency never made the recommendation. 

After lawyers for both sides spent hundreds of hours placing all the evidence and legal arguments before the Federal Court for its consideration and heard their oral arguments on October 31, 2022.

According to the Justice Centre, the applicants argue that vaccine mandates are an issue of national importance, and that Canadians deserve to receive court rulings regarding any emergency orders that violate the Charter.

The court ultimately dismissed the Charter challenge as ‘moot’ on November 9, 2023, as the feds suspended their vaccine mandate in June 2022. The Federal Court of Appeal affirmed this lower court ruling on the basis it neither served the public interest nor is it an appropriate use of court resources.

Ottawa remains open to reinstating the mandates without notice if necessary.

Peckford, Bernier, and other Canadians now seek to have the Supreme Court of Canada hear their case after the former two submitted a Leave Application on January 8. They contend all challenges to emergency orders risk being deemed irrelevant given that emergency orders are only implemented for short periods of time. 

According to the Justice Centre, emergency orders will be rescinded by the time a constitutional challenge makes its way through the court process and put before a judge. 

"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?" asks John Carpay, President of the Justice Centre.

Emergency orders are not debated in, or approved by, federal Parliament or provincial legislatures. Rather, they are discussed confidentially in Cabinet, such as mandatory vaccination policies.

For this reason, the Applicants argue the courts should provide guidance on how emergency orders should be handled in the context of the mootness doctrine. 

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

"The public interest in this case is staggering," she said, as only through court rulings can Canadians learn whether a mandate or emergency order is constitutional.

"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 […] turned millions of Canadians into second-class citizens, were valid under our Constitution," said Pejovic.

"The Court’s dismissal of constitutional challenges to Covid orders for ‘mootness’ has deprived thousands of Canadians from knowing whether their governments' emergency orders were lawful or not," she concluded.