On November 9, 2023, the Federal Court of Appeal (FCA) delivered its judgement on Peckford v Canada (Attorney General), 2023 FCA 219.
Among the appellants were the Honourable Brian Peckford, former Premier of Newfoundland and the only surviving first minister who was involved with the enactment of the Canadian Charter of Rights and Freedoms (Charter), and the Honourable Maxime Bernier, founder and leader of the People’s Party of Canada (PPC).
The appellants challenged the federal government’s travel vaccine mandates that required air and rail travellers to be vaccinated against COVID-19. The mandates were imposed by a series of Interim and Ministerial Orders, and were in force from October 29, 2021 until June 20, 2022, at which time they were either repealed or suspended. The appellants submitted that the travel vaccine mandates violated several of their Charter rights, including their mobility rights. Section 6(1) of the Charter states that “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” While the travel vaccine mandates were in effect, unvaccinated Canadians were prohibited from travelling within and outside of Canada via airplane or train.
The Federal Court (FC), pursuant to a motion brought by the Attorney General, had dismissed the appellants’ judicial review applications on the basis that they had become moot as the travel vaccine mandates were no longer in effect. The appellants asked the FCA to set aside the FC’s dismissal of their applications, but the FCA dismissed the appeal.
The FCA addressed two issues. The first was whether the FC had erred in finding that the applications had become moot. The Supreme Court of Canada, in the 1989 case of Borowski v Canada (Attorney General), established that a case is said to be moot when no live controversy exists which affects the rights of the parties. The FC and the FCA both held that since the travel vaccine mandates were no longer in effect, the issue of their constitutionality was not a “live controversy.” While I agree with the courts’ decision on this issue, I also sympathise with the appellants’ submission that the mandates may be reinstated at any moment. One could argue that since the threat of reinstatement is perpetually present, the issue constitutes a “live controversy.” However, this presents a floodgates problem as any piece of legislation could hypothetically be reinstated at the whim of the legislature. While I do not think that the threat of reinstatement is a strong argument in favour of the appellants’ position, I think that the FCA erred in its analysis of the second issue, discussed below.
The second issue was whether the FC had erred in refusing to exercise its discretion to hear the applications. If a case is said to be moot, the court must decide whether to exercise its discretion to hear the case despite its mootness (Borowski). The court should consider three factors: the presence of an adversarial context, concern for judicial economy, and the need for the court to be sensitive to its role as the adjudicative branch (Borowksi). The FCA focused on the concern for judicial economy, which involves considering whether the case raises an issue of such public importance that a resolution is in the public interest. The FCA ultimately held that a decision on the constitutionality of the travel vaccine mandates would not be of sufficient public importance to justify the use of judicial resources. I strongly disagree; this issue is of significant public importance. Approximately 20% of the Canadian population is not fully vaccinated against COVID-19. With a population of 40 million, that means that 8 million Canadians were denied the ability to travel within or outside of Canada, amounting to an unprecedented mass violation of Charter-protected mobility rights.
The FC stated that “it is not the role of the Court to dictate or prevent future government actions,” and the FCA agreed that it is highly speculative that the travel vaccine mandates will be reinstated. I disagree that it would be imprudent to use judicial resources to comment on a matter that may never occur in the future, especially since the courts routinely do so. Both provincial and federal governments ask the courts for advisory opinions, also known as references, on potential future government actions. While it is true that the mandates may never be reinstated, they were initially instated with no judicial oversight. If an unlawful temporary detention occurred, the courts would not turn away a plaintiff merely because he or she is no longer being detained; the unlawful activity would be recognized as such and there would be a trial of the issue. Just because an unlawful activity is not occurring when the issue is before the court does not mean that the court cannot consider said issue.
Millions of Canadians were negatively impacted by the federal government’s imposition of travel vaccine mandates and they deserve to have this unprecedented government action evaluated by the courts to ensure that a similar future action will be done in a constitutional manner. If not for the courts, who will keep the government accountable?
