Lawyer Challenges Feds’ Claim That Vaccine Travel Mandate Lawsuits Are ‘Moot’ in Court Hearing

People wait in line to check in at Pearson International Airport in Toronto on May 12, 2022. (The Canadian Press/Nathan Denette)

A lawyer representing two applicants challenging the federal travel vaccine mandate told an Ottawa courtroom on Sept. 21 that the issue isn’t moot—as the attorney general has previously argued in court—since the federal government could bring back the measure at any time.

“Mandates are not a relic of the pandemic past,” said lawyer Sam Presvelos, who represents businessmen Karl Harrison and Shaun Rickard.

Presvelos argued the attorney general has not submitted any evidence that mandates won’t be reimposed.

After the Liberal government lifted the vaccine mandates on June 20, the attorney general filed a motion to have four lawsuits against the mandate be declared moot and struck.

Justice Jocelyne Gagné is hearing the arguments from the attorney general and the applicants in Ottawa.

Justice Canada senior general counsel J. Sanderson Graham said the federal court should not hear the case because the interim orders that implemented the mandate are no longer in force, and do not exist as law.

Graham said the applicants’ rights are not being affected since the mandates have been repealed, and they have already received the “only proper remedy available,” having been regranted the ability to travel.

Graham also warned the court against making an “unnecessary” constitutional pronouncement that he said could have a “deleterious” effect on future cases.

Implications

When the government announced the vaccine mandates would be lifted on June 14, its statement emphasized the measure was being suspended and could be brought back if deemed necessary.

Graham argued that such statements for the media have no legal value.

Presvelos pushed back on this assertion, saying the concept was communicated by cabinet ministers and should not be dismissed.

These words cannot be “trivialized” because they don’t come from a lawyer, Presvelos said.

Presvelos also mentioned a now partly declassified briefing that was provided to cabinet in June before it took the decision to lift the mandates, which states that mandates would be only “temporarily” suspended and brought back in the fall with an “up-to-date” vaccination requirement if “health conditions warrant.”

Presvelos said the court needs to address the constitutional implications of the case because the mandatory vaccination scheme meant Canadians who chose to assert the charter right of bodily autonomy had to forego their mobility rights, whereas those who complied with the mandate traded bodily autonomy for mobility.

This conflict shouldn’t be allowed in a constitutional democracy, Presvelos said.

Other applicants challenging the travel mandate include People’s Party Leader Maxime Bernier, former Newfoundland premier Brian Peckford, and Quebec lawyer Nabil Belkacem.

The legal proceedings have shed light on the inner workings of the vaccine mandates, with government officials behind the policy testifying, along with public health officials.

Testimony thus far has suggested the government had limited data on in-flight transmission of the virus and assessed the risk of transmission as low, and had very little data on the impact of vaccination in transportation.

Despite ministers saying all decisions behind the mandates were guided by science and public health advice, the official who wrote the travel mandate policy said she couldn’t recall ever receiving a direct recommendation for a vaccine mandate from Health Canada.